Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326 | Case summary

Queensland Industrial Relations Commission|2022-08-19

INDUSTRIAL LAW - DISCRIMINATION - exemption - application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) - exemption sought in relation to discrimination on the grounds of race - where applicants are engaged in the provision of aviation services that include aerial maritime surveillance and search and rescue - where applicants require exemption to comply with US export control laws - exemption granted

Anti-Discrimination Act 1991 (Qld) s 4, s 7, , , , , , , , s

Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328

Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21

Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) [2008] QADT 34

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869

Raytheon Australia Pty Ltd (Human Rights) [2014] VCAT 1370

Re: Ipswich City Council [2020] QIRC 194

Re: Kalwun Development Cooperation Limited [2019] QIRC 141

Re: Leidos Australia Pty Ltd [2021] QIRC 229

Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) [2014] VCAT 1441

WBM v Chief Commissioner of Police [2010] 27 VR 409

WBM v Chief Commissioner of Police [2012] VSCA 159; [2012] 43 VR 446

Wotton v State of Queensland (No 5) [2016] FCA 1457

[1] By application filed on 4 May 2022, the Applicants applied under s 113 of the Anti-Discrimination Act 1991 (Qld) (the AD Act) for an order exempting the Applicants from ss 7, 14, 15, 15A, 124 and 127. The exemption is sought for a period of five years, insofar as those sections relate to the 'race' of applicants for employment, employees and contract workers.[1]

[2] The question for determination is whether the Applicants should be granted an exemption pursuant to s 113(1) of the AD Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) (the HR Act).

[3] In the exemption application, the Applicants submit:

the Applicants are principally engaged in the provision of aviation services that include aerial maritime surveillance operations of Australian coastlines and search and rescue services;

the activities of the Applicants relate to the operation and maintenance of aircraft;

the Second Applicant is contracted to use its surveillance aircraft to provide airborne search and rescue services to the Commonwealth of Australia and the Australian Maritime Safety Authority;

the Fourth Applicant is contracted to provide airborne maritime surveillance services to the Commonwealth;

the aircraft operated by the Applicants contain certain technology (Controlled Defence Articles), the use of which is regulated by certain laws of the United States of America (the US) (US Export Controls);

the Applicants have entered into a number of subcontracts for the supply of technology which is necessary for the Applicants to deliver services under contract to the Commonwealth;

suppliers of US defence technology are required to satisfy US Export Controls before they can transfer the technology to the Applicants - compliance with the US Export Controls is also passed on to the Applicants through contractual arrangements with US contractors;

to obtain access to the US defence technology required to perform its contractual obligations, the Applicants have entered into agreements that require compliance with certain legislation enacted in the US, including the International Traffic in Arms Regulations 22 CFR 120 (2003) (USA) (ITAR);

ITAR denies access to Controlled Defence Articles by certain proscribed countries and their nationals whether directly or indirectly by US based suppliers or foreign based third parties;

in granting export approval, the US Department of State will require conditions in licenses and agreements that include:

(a) the identification of the nationality of all employees and contractors who will have access to Controlled Defence Articles;

(b) disclosure to the US Contractor of the nationality of all employees and contractors who will have access to the Controlled Defence Articles; and

(c) restrictions or prohibitions on persons of particular nationalities having access to the Controlled Defence Articles.

to comply with obligations pursuant to US Export Authorisations, the Applicants must ensure that unauthorised re-export or re-transfer of Controlled Defence Articles does not occur;

to ensure compliance, the Applicants may be obliged to engage in conduct in respect of certain persons which may contravene ss 7, 14, 15, 15A, 124 and 127 of the AD Act; and

if the Applicants are unable to obtain the exemptions, they may suffer significant financial and employment loss, they may be debarred from future arrangements, the Commonwealth may incur substantially increased costs and there may be an adverse impact on the Queensland economy.

[4] The Applicants rely on the evidence of Ms Sorcha O'Neill[2] with respect to the reason for bringing the Application, company structure, business activities, contractual arrangements, export and import controls, US Export Controls, Controlled Defence Articles, the US Export Authorisation process, prohibited exports and sales to certain countries, third country and dual national employees, the current technology control plan, consequences of non-compliance and the requirement to establish the nationality of the Applicants' employees and contractors.

[5] Pursuant to s 113(2) of the AD Act, before deciding an application, the Tribunal[3] must provide a copy of the application and material filed in support of the application to the Queensland Human Rights Commission (QHRC) and have regard to any submission made by the QHRC on the application, including any submission on the process for considering the application.

[6] On 12 May 2022, the Industrial Registry forwarded a copy of the Application and supporting material to the QHRC. The QHRC filed submissions on 2 June 2022 in response to the Application.

[7] In light of the submissions filed by the QHRC, on 6 June 2022, I issued a Directions Order directing:

the Applicants to file any further written submissions and/or material addressing any matters raised in the submissions of the QHRC, including the necessity for the exemption and the application of s 25 of the AD Act;

the Applicants to provide notice of and make available a copy of all documents filed in this matter to its Queensland employees, contractors and other workers;

the Applicants to serve a copy of all documents filed in this matter on the Queensland Council of Unions and the Ethnic Communities Council of Queensland;

that if any interested party wishes to be heard in this matter, they may file written submissions by 4:00pm on 27 June 2022; and

that the matter will be determined on the papers pursuant to s 539(c) of the Industrial Relations Act 2016 (Qld), unless otherwise ordered.

[8] I am satisfied that the Applicants complied with directions in so far as they served a copy of all documents on the Queensland Council of Unions and the Ethnic Communities Council of Queensland.[4] Further, I am satisfied that the Applicants provided copies of the Application, supporting documents and the Directions Order inviting submissions to Queensland employees, contractors and other workers.[5] The Industrial Registry did not receive any correspondence or written submissions from any interested party.

[9] The Applicants seek an exemption in the following terms:

The Applicants be granted an exemption from compliance with the provisions of sections 7, 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) for a period of five years, insofar as those sections relate to the 'race' (as defined in section 4 of the Act) (Annexure C) of applicants for employment, employees and contract workers. In particular, the Applicants seek the following orders:

request information relating to the nationality, country of birth and current and past citizenship from existing and potential employees and contractors;
take a person's nationality, country of birth and current and past citizenship into account in determining who should be offered employment or contract work in areas requiring access to Controlled Defence Articles and when making decisions as to the participation of employees or contractors in such work;
maintain records of the nationality, country of birth and current and past citizenship of all employees and contractors who have or may have access to Controlled Defence Articles in the performance of their work;
ensure that Controlled Defence Articles are disclosed only to persons who are not prohibited from receiving a disclosure in accordance with applicable United States laws;
impose limitations or prohibitions on persons of particular nationalities, countries of origin and current and past citizenship having access to Controlled Defence Articles in the performance of their work;
to the extent necessary to comply with their legal obligations to the Commonwealth, disclose to the Commonwealth the nationality, country of birth and current and past citizenship of all employees and contractors who require access to Controlled Defence Articles in the performance of their work;
disclose to US Contractors with whom any of the Applicants are party to a US Export Authorisation and to the US Department of State, the nationality, country of birth and current and past citizenship of all employees and contractors who will have access to Controlled Defence Articles in the performance of their work; and
establish security systems which will prevent the unauthorised re-export or retransfer of Controlled Defence Articles.

That the exemption may apply subject to the following conditions:

It will only apply to conduct by the Applicants where:
1. that conduct is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles; and
2. the Applicants have taken all steps that are reasonably available (including steps that might be taken in negotiating and performing the terms of their agreements with US Contractors) to avoid the necessity of engaging in conduct that would otherwise be in breach of sections 7, 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld)

Where, in the exercise of this exemption, any employee or contract worker is moved from a project involving the use of Controlled Defence Articles to any other work controlled by the Applicants or any of their related entities, the Applicants must explain to the person through a duly authorised officer why he or she is being transferred and must otherwise take all reasonable steps to avoid or limit harm or loss to that person.
Where the Applicants use a system of security passes to reflect the fact of access to Controlled Defence Articles or levels of access to any security-sensitive material by employees and contract workers, the passes may be coded but not in such a way as to identify the nationality, country of birth and current and past citizenship of the person or the reasons for that person's level of access.
All information relating to nationality, country of birth and current and past citizenship and access to Controlled Defence Articles shall be restricted to technology control officers, export control officers, security officers, legal officers and human resources officers of the Applicants or their properly appointed nominees on a 'need to know' basis.
The Applicants' employment policies shall be amended as soon as reasonably possible so as to refer to the terms of this exemption, including all conditions attaching to it, and to make it clear that purpose of the request for information regarding nationality, country of birth and current and past citizenship is made solely for the purposes of compliance with United States laws.
The First Applicant must report to the Queensland Human Rights Commission annually on 26 November for the duration of the exemption on the Applicants' compliance with the exemption requirements and changes in its procedures to reflect amendments to the International Traffic in Arms Regulations 22 CFR 120 (2003) (USA), and as to how its employees and contractors are affected.

[10] Section 113(1) of the AD Act stipulates the Commission's power to grant an exemption from the operation of a provision therein. Section 113 of the AD Act is in the following terms:

(a) a person, on the person's own behalf, or on behalf of the person and another person or other people; or

(b) 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or

(c) a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

See also section 174C in relation to the tribunal's powers for deciding the application.

(a) may be granted subject to such terms as the tribunal provides; and

(b) may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and

(c) is to be granted for a specified period of not more than 5 years.

(7) An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted.

[11] The Applicants seek exemption from the operation of ss 7, 14, 15, 15A, 124 and 127 of the AD Act for a period of five years.[6]

[12] Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of "race".

[13] Section 14 of the AD Act prohibits discrimination in the "pre-work area" including by prohibiting discrimination in relation to the arrangements made for deciding who should be offered work, in deciding who should be offered work, in the terms of work that is offered and in failing to offer work.

[14] Section 15 of the AD Act prohibits discrimination in the "work area" including by prohibiting discrimination in varying terms of work, by denying or limiting access to opportunities to a worker, by dismissing a worker, and the general unfavourable treatment of a worker in any way in connection with work.

[15] Section 15A of the AD Act prohibits discrimination by principals in deciding the terms in which the principal allows the worker to work, by not allowing the worker to work or continue to work, by denying or limiting access by the worker to any benefits connected with the work or by treating the worker unfavourably in any way in connection with the work.

[16] Section 124 of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based.

[17] Section 127 of the AD Act prohibits the publication and display of advertisements which in any way indicates that a person intends to act in a way that contravenes the AD Act.

[18] In Re: Leidos Australia Pty Ltd ('Leidos'), Industrial Commissioner Hartigan stated:

[43] The exercise of the discretion conferred by s 113 of the AD Act on the Tribunal is broad and unfettered.[7] However, a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.[8] These considerations include:

(b) whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;

(c) whether the exemption is in the community interest;

(d) whether any other person or body, other than the applicant, support the application;

(e) whether it is reasonable and appropriate to grant the exemption; and

[19] I will address these matters below following my consideration of the Human Rights Act 2019 (Qld) (HR Act).

[20] In Leidos, Industrial Commissioner Hartigan summarised the objectives of the HR Act as follows:

[45] In addition to the matters referred to above, the Tribunal must also consider any relevant matters arising in accordance with the HR Act.

[46] The main objects[9] of the HR Act are to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights and to help promote a dialogue about the nature, meaning and scope of human rights.

[47] The way in which the HR Act provides that the main objects are to be achieved[10] include, inter alia, by:

(a) requiring public entities to act and make decisions in a way compatible with human rights;[11] and

(b) requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose in a way compatible with human rights.[12]

[48] Section 9(1) and (2) of the HR Act provides the meaning of "public entity". Relevantly, s 9(4)(b) of the HR Act provides that "public entity" does not include ''...a court or tribunal, except when acting in an administrative capacity."

[49] Accordingly, a determination must be made as to whether the Tribunal is acting in a judicial or administrative capacity when deciding as to whether it will grant an exemption pursuant to s 113 of the AD Act.

[21] The QHRC submits that s 48 is applicable to the Commission by virtue of s 5(2)(b) of the HR Act and requires that all statutory provisions must be interpreted in a way that is compatible with human rights, to the extent possible that is consistent with the purpose of the statutory provision.[13]

[22] The QHRC submits that in deciding an application for an exemption under s 113 of the AD Act, the Commission is acting in an administrative capacity and is a public entity under the HR Act. On that basis, the QHRC submits that, pursuant to s 58(1) of the HR Act, the Commission is to act and make decisions in a way that is compatible with human rights and give proper consideration to human rights that are relevant to this decision.[14] In light of the reasoning in Leidos[15] with reference Re: Ipswich City Council,[16] I accept that to be the case.

[23] Section 58 of the HR Act relevantly provides as follows:

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to -

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights.

(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

(b) person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).

[24] Section 7 of the HR Act defines human rights to mean "...the rights stated in part 2, divisions 2 and 3".

[25] Part 2, div 2 of the HR Act prescribes civil and political rights.

[26] Relevantly, s 15 of the HR Act provides for recognition and equality before the law in the following terms:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy the person's human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination.

(4) Every person has the right to equal and effective protection against discrimination.

(5) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

[27] Section 25 of the HR Act provides for the right to privacy in the following terms:

(a) not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have the person's reputation unlawfully attacked.

[28] Section 8 of the HR Act defines "compatible with human rights" as follows:

An act, decision or statutory provision is compatible with human rights if the act, decision or provision -

(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.

[29] Section 13 of the HR Act provides that human rights may be limited as follows:

(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -

(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g) the balance between the matters mentioned in paragraphs (e) and (f).

[30] Section 5 of the HR Act relevantly provides as follows:

(1) This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

(a) a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and

(b) the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and

(c) a public entity, to the extent the public entity has functions under part 3, division 4.

(3) Subsection (2) does not limit or otherwise affect -

(a) another function conferred by this Act on an entity mentioned in the subsection; or

(b) a function conferred by this Act on any other entity.

(4) Nothing in this Act makes the State liable to be prosecuted for an offence.

[31] I accept the QHRC's submission that pursuant to s 5(2)(a) of the HR Act, the HR Act applies to a court or tribunal, to the extent the court or tribunal has functions under pt 2 and pt 3, div 3 of the HR Act.

[32] Section 48 of the HR Act is contained in pt 3, div 3 of the HR Act and provides as follows:

(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(a) an Act or provision of an Act that is not compatible with human rights; or

(b) a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.

(5) This section does not apply to a statutory provision the subject of an override declaration that is in force.

[33] Accordingly, s 113 of the AD Act must be interpreted in a way that is compatible with, or most compatible with, human rights - to the extent possible consistent with its purpose.

[34] The QHRC's written submissions may be summarised as follows:

earlier decisions of VCAT identified that the rights to privacy and the right to equality and to equal protection of the law without and against discrimination were relevant to similar exemptions;

in all the relevant VCAT decisions, an integral finding was that it was satisfied there was no exception under the Equal Opportunity Act 2010 (Vic) that applied, and that as the conduct would amount to prohibited discrimination, an exemption was therefore necessary;

the Queensland AD Act allows a person to impose genuine occupational requirements for a position;

the Applicants bear the onus to establish that an exemption under s 113 of the AD Act is necessary;

an exemption would not be necessary if the Commission was satisfied that the exemption for imposing genuine occupational requirements in s 25 of the AD Act applies; and

the Applicants bear the onus to satisfy the Commission that the exemption they seek is compatible with the identified human rights that may be affected by the exemption.[17]

[35] Section 25(1) of the AD Act provides that a person may impose a genuine occupational requirement for a position. Section 24 of the AD Act provides that it is not unlawful to discriminate in the work or work-related area if an exemption under s 25 applies.

in the Queensland Anti-Discrimination Tribunal decision of Exemption application re: Boeing Australia Holdings Pty Limited & Ors (No. 3) ('Boeing'),[18] the Tribunal found that the exemption under s 25 of the AD Act applied to enable the Applicant in that mater to lawfully discriminate on the basis of race in considering whether to employ people and in deploying people - thereby rendering an exemption under s 113 unnecessary;

in Leidos, this Commission did not follow the Boeing decision but instead found that an exemption under s 113 of the AD Act was required because, for some employees of Leidos, it was not essential to, at all times, have access to Controlled Defence Articles;

some of the Applicants' personnel engaged to work with Controlled Defence Articles may not be required, at all times, to have access to Controlled Defence Articles;

the phrase 'genuine occupational requirement' has not been interpreted by this Commission as authorising discrimination on the basis of nationality with respect to positions for which it is not essential to, at all times, have access to Controlled Materials;

the Applicants do not seek lawful authorisation to make employment or engagement of all Queensland employees and contractors in particular positions conditional on their nationality or country of origin;

the Application is akin to the application made in Leidos in that positions are not neatly divided into 'ITAR' and 'non-ITAR' roles;

some employees of the Applicants could be required to have occasional, intermittent or unplanned access to Controlled Defence Articles;

the use of s 25(1) to deny employment of 100% of people of a particular nationality or origin does not appear consistent with the purpose of the AD Act in circumstances where the requirement to be of a particular nationality or origin may never eventuate in practice; and

it appears that the genuine occupational requirement in s 25(1) of the AD Act may not extend far enough to address the lawfulness of discrimination in the Applicants' circumstances because some employees are not required, at all times, to have access to Controlled Defence Articles.

[37] The arguments raised in this regard are analogous to those considered in Leidos, as extracted below:

[86] On the material before me, I am not satisfied that it is an inherent requirement of the position and consequently, a genuine occupational requirement, that workers at Leidos access Controlled Materials. Relevantly, Leidos seeks the exemption only insofar as some of its personnel may, at times, be required to access Controlled Material, when working on a particular project or part of a project or program. Not all work undertaken by personnel engaged by Leidos requires access to Controlled Material. Leidos argues that given the nature of the work it performs, including in designing software, it is difficult to predict with certainty, what information an employee will need to have access to at the commencement of a project and further at the time the worker is engaged. It states that it might be the case that for several stages of a project, that it would not be necessary for a worker to access Controlled Material, and accordingly, it would not be an inherent requirement of the position. Alternatively, a worker might be engaged to work on one project where access to Controlled Material is not necessary and then transition into a different project where such access was necessary.

[87] I accept that the evidence relied on by Leidos as to how it operates its business and how it manages personnel. On that evidence, it is not essential to the position to, at all times, have access to Controlled Material. Accordingly, it is not essential to the position and does not form a genuine operational requirement.

[88] On the information before me, I am unable to conclude that s 25 of the AD Act applies.[19]

[38] I agree with Industrial Commissioner Hartigan's reasoning in the analogous matter of Leidos. The Applicants submit that some employees could be required to have only occasional, intermittent or unplanned access to Controlled Defence Articles and it is therefore not essential for some of the Applicants' employees to have access to Controlled Defence Articles at all times. On that basis, I accept the Applicants' submission that s 25 of the AD Act is not applicable in these circumstances.

[39] To determine whether a person's human rights may be affected by the granting of an exemption under s 113(1) of the AD Act, I will consider the effect of the exemption if it is to be granted.[20]

[40] The effect of the exemption would be to allow the Applicants to seek and use personal information including with respect to a person's nationality, citizenship and country of birth when determining who should be offered employment or contract work. Relevantly, the effect of the exemption would be to permit the Applicants to lawfully discriminate on the basis of race in the pre-work and work area, to be exempt from the application of s 124 of the AD Act in respect of unlawful requests for information and to be exempt from the application of s 127 of the AD Act in respect of advertisements.

[41] The QHRC submits that earlier decisions of VCAT identified that the rights to privacy and the right to equality and to equal protection of the law without and against discrimination are relevant to exemptions of this nature.

[42] With respect to the right to privacy, I refer to Industrial Commissioner Hartigan's comments in Leidos:

[99] The right to privacy, in the HR Act,[21] mirrors the right to privacy in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Victorian Charter").[22] The right to recognition equality[23] before the law is also expressed in similar terms to the right in the Victorian Charter.

[100] Section 25(a) of the HR Act provides that a person has the right not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with. I accept that the right to privacy might arise because Leidos seeks to use personal information including place of birth, nationality and citizenship details which may intrude on a person's privacy. However, consideration must be given as to whether such interference is arbitrary.

[101] There has been a range of opinions expressed in the Victorian jurisdiction regarding the concept of arbitrariness as it appears in s 43 of the Victorian Charter.

[102] In Director of Housing v Sudi (Residential Tenancies),[24] Bell J adopted an approach whereby the meaning was informed by international and comparative human rights cases. Bell J concluded that the meaning encompassed a lack of proportionality or justification and objective unreasonableness.

[103] In WBM v Chief Commissioner of Police,[25] a narrow approach was taken by the court and the term "arbitrary" was determined[26] to mean conduct not based on any identifiable criteria, but which stems from an act of caprice or whim.

[104] In obiter statements in the appeal from the decision,[27] Warren CJ indicated[28] a preference for the approach taken by the UK courts as guidance on how to determine "what amounts to 'arbitrary interference' with privacy where arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness - in the sense of it not being proportionate to the legitimate aim sought".

[105] In the federal jurisdiction, in Wotton v State of Queensland (No 5),[29] Mortimer J, after considering, inter alia, the above authorities, indicated a preference[30] for a construction of arbitrariness to include, at least, a "... lack of proportionality to the ends sought, and lack of justification." She continued by stating that "[s]uch a construction gives independent operation to arbitrariness in contrast to unlawfulness."

[106] Having regard to these matters, I do not consider that the possible interference with privacy raised by the exemption application could be regarded as arbitrary. It could not be said that by seeking the information in accordance with its obligations to act in compliance with the US export control laws, that Leidos is acting in a capricious or unpredictable way. Further, given the interference is directly aligned with Leidos' attempts to comply with the US export control laws and its contractual obligations, I do not consider that such conduct lacks proportionality to the end sought or was without justification.

[107] For these reasons, I consider the right to privacy is not engaged in the circumstances of this matter.

[43] For the reasons outlined in Leidos as extracted above, I agree that any possible interference with privacy stemming from the granting of the exemption sought would not be arbitrary.

[44] On the material before me, I am satisfied that the human right to recognition and equality before the law is engaged in this matter. Specifically, the right to equal protection of the law without discrimination pursuant to s 15(3) of the HR Act and the right to equal and effective protection against discrimination pursuant to s 15(4) would be affected.

[45] As the right to recognition and equality before the law will be limited, I will consider the factors prescribed under s 13 of the HR Act to determine whether the limitations proposed by the Applicants are reasonable and may be demonstrably justified.

The nature of the human right - s 13(2)(a) of the HR Act

[46] The human rights engaged in this matter are the rights to equal protection of the law without discrimination and the right to equal and effective protection from discrimination. Industrial Commissioner Hartigan explored the nature of these human rights in Leidos:

[114] The equivalent right in the Victorian Charter was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination)[31] ("Lifestyle Communities") as follows:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, ie treatment devoid of objective justification, in the application and administration of the law.

The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

[115] In Lifestyle Communities,[32] it was considered that it was a common feature of exemption applications is that there is no particular "victim" of the intended discrimination. It was recognised that such applications are usually undefended and not opposed by the relevant human rights and equal opportunity commission. Further it was noted that such applications are often routine, and it is rare for someone to appear in a hearing to oppose such an application.

[116] Yet, it was further discussed that exemptions of this nature have far reaching consequences and that it is important for a tribunal to take the nature of the right being limited into proper account.[33] Further it was noted that the tribunal in such a circumstance, is the guardian of the human rights of the community in these applications.

The nature of the purpose of the limitation - s 13(2)(b) of the HR Act

[47] Section 13(2)(b) of the HR provides that in deciding whether a limit on a human right is reasonable and justifiable, the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom, may be relevant.

[48] The purpose of the limitation is to be achieved by, for example, taking into account the nationality and national origin of potential and current employees to determine the engagement of the Applicants' workforce. Clearly, such a limitation is inconsistent with a free and democratic society based on human dignity, equality and freedom.

[49] These considerations must be weighed against the purpose of the exemption. As in Leidos, the purpose of the Application is to enable the Applicants to comply with US Export Control laws which will permit access to Controlled Materials in carrying out its business. I accept that without the exemption, the Applicants would be unable to perform work utilising Controlled Materials, including work which relates to aerial maritime surveillance and search and rescue services, some of which form part of contractual arrangements with the Commonwealth.

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose - s 13(2)(c) of the HR Act

[50] I accept there is a relationship between the terms of the limitation and its purpose. On the material before me, I am satisfied that the limitation helps to achieve the purpose for which it is sought.

[51] I do not consider that the terms of the exemption go beyond the purpose of the exemption. In this regard, I note the that the Applicants seek the exemption subject to conditions that it will only apply to conduct that is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles and where the Applicants have taken all steps that are reasonably available to avoid the necessity of engaging in conduct that would otherwise breach ss 7, 14, 15, 15A, 124 and 127 of the AD Act.

Whether there are any less restrictive and reasonably available ways to achieve the purpose - s 13(2)(d) of the HR Act

[52] The Applicants contend there are no less restrictive and reasonably available ways to achieve the purpose of utilising Controlled Materials.

[53] I accept that the Applicants are required to acquire and use the nationality, citizenship and national origin information of potential workers.

[54] In Leidos, Industrial Commissioner Hartigan noted the following:

In Thales,[34] when considering the effects of the 2011 amendments to the ITAR in an exemption application, it was concluded that there was an absence of less restrictive means to achieve the purpose, as the amendments to the US export control laws and other developments had not eliminated the need for the applicant to seek nationality origin information from its workforce from time to time.[35]

[55] On the material before me, I am not satisfied that there is any less restrictive and reasonable available way to achieve the purpose.

The importance of the purpose of the limitation, the importance of preserving the human right and finding a balance between the two - s 13(2)(e)-(g) of the HR Act

[56] In Leidos, Industrial Commissioner Hartigan concluded:

[130] It has been held[36] that the purpose of the right to recognition and equality before the law, specifically the right to equal protection of the law without discrimination and the right to equal and effective protection against discrimination is to protect the values of substantive equality, the universal humanity, autonomy and worth of the individual and their protection for personal and social development.

[131] Further, it has been held[37] that the interests protected by the 'equality rights' are the rights of every person to be treated equally before the law and to have the law applied to them in a way that is equal in law and in fact. Clearly, such important rights must not be limited without good reason.

[132] The evidence adduced by Leidos supports its submission that it provides fundamental services and support to Australia's defence and national security interests through its contracted work with the Commonwealth of Australia, in particular, Defence.

[133] I have had regard to the fact that Leidos only seeks the limitation on the rights in order to comply with the US export control laws when it undertakes its business which includes providing services to the Commonwealth of Australia, including Defence. When considering a similar application for exemption in Victoria,[38] it was held that the concerns of the Australian and US governments about who ought and ought not have access to Controlled Material is clear and they are not matters that should be disregarded.

[134] I consider the limitation in the circumstances of this matter to be legitimate and of sufficient importance to limit the human rights affected. For the reasons referred to above, I also consider the limitations to be consistent with the purpose for which they are sought and to be proportionate to and appropriate for achieving that purpose.

[135] For these reasons, I am satisfied that the limitation on human rights is reasonable and justifiable.

Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326 (19 August 2022)

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