Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133 | Case summary

Queensland Industrial Relations Commission|2024-06-11|Before: Hartigan DP

Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280

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

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

Re: Cobham Aviation Service Australia Pty Ltd & Ors [2022] QIRC 326

Re: Kalwun Development Corporation Limited [2019] QIRC 141

Re: Leidos Australia Pty Ltd [2021] QIRC 229

Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

Re: Rohde & Schwarz (Australia) Pty Ltd [2024] QIRC 016

[1] The applicants, Jet Aviation Australia Pty Ltd and Jet Aviation Australia (Qld) Pty Ltd (collectively, 'Jet Aviation'), seek an exemption for a period of five years, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ('AD Act'), from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act.[1]

[2] Jet Aviation seeks the exemption insofar as the relevant provisions relate to the attribute of 'race'[2] to enable it to comply with the International Traffic in Arm Regulations[3] ('ITAR') and the Export Administration Regulations ('EAR').

[3] The application filed on 21 December 2023 was brought by Jet Aviation Australia Pty Ltd.[4] On 31 January 2024, Jet Aviation filed an amended application and affidavit of Ms Sarah Abbass, Assistant General Counsel, seeking to amend the application to include a new entity, Jet Aviation Australia (Qld) Pty Ltd ('Jet Aviation Qld') a wholly owned subsidiary of Jet Aviation Australia Pty Ltd ('amended application'). Jet Aviation sought to amend the application following a business transfer agreement dated 1 December 2023 which, inter alia, resulted in the transfer of 176 of Jet Aviation's Queensland-based employees to Jet Aviation Qld. Ms Abbass also sets out that it continues to be foreseeable that employees of Jet Aviation may have a continuing need to access and use ITAR-controlled items in the course of their employment.

[4] Jet Aviation submits that it requires the exemption sought in order to comply with the laws of the United States of America ('US') which govern access to certain defence-related technology and data ('Controlled Technology') for the purpose of performing contracted works for the Commonwealth of Australia, in particular, the Department of Defence ('the Department').

[5] Jet Aviation manages custom-designed maintenance and support solutions for military aviation fleets and undertakes design and engineering of specialised aircraft modifications and mission system integrations. Jet Aviation also supplies and maintains specialised imaging equipment for military, emergency services, law enforcement and civilian use in airborne, maritime, and land environments. Jet Aviation is reliant on manufacturers from the US for military end use engineering technology, parts and products for the provision of aviation services.

[6] Jet Aviation relies on an affidavit of Mr Purry[5] who describes Jet Aviation as being principally engaged in the provision of aviation services that include supporting the Department's aircraft with engineering services, repair, and maintenance services, and generally supplying logistics support to the Royal Australian Air Force ('RAAF') fleet.

[7] Jet Aviation submits that approximately 35 to 40% of Jet Aviation's current contracts involve supplying aircraft support to the Department and approximately one third of all RAAF flights are supported by Jet Aviation. The works associated with these contracts are carried out by employees employed by Jet Aviation Australia Pty Ltd and Jet Aviation (Qld).

[8] The amended application lists at 5(a) - (d) several of what are described as "major contracts" with the Department. Jet Aviation submits that it is a strict condition of their contracts with the Department that Jet Aviation comply with all applicable laws and regulations including the US import and export controls laws and regulations.

[9] Mr Purry states that Jet Aviation requires access to Controlled Technology, including both US classified and US unclassified controlled defence articles and technical data, to perform work and fulfill its contractual obligations to the Department.

[10] Jet Aviation submits that the US places very strict controls over the export, re-export and re-transfer of the US military and dual-use aircraft technology, data and products. The key export control regulations that are relevant to and affect Jet Aviation and their contractual obligations with the Department are the ITAR and the EAR ('US export control laws').[6]

[11] In order to obtain access to Controlled Technology required to perform its contractual obligations, Mr Purry states that Jet Aviation had, at the time of filing the application, entered into approximately 35 agreements and licenses that strictly require compliance with the US export control laws.

[12] Jet Aviation contends that the US export control laws "contain restrictions on access/diversion of controlled technology to specific countries, including individuals who hold, or have held, nationality of the specific countries, even where those individuals are located within Australia." [7] Specifically, Jet Aviation submits that the US export control laws restrict access to Controlled Technology by individuals classified as a:

(a) 'Dual National', who for Australian purposes is an individual who holds Australian citizenship, in addition to citizenship of one or more other countries (except for the US); or

(b) a 'Third County National', who for Australian purposes is an individual who holds nationality of a country or countries other than Australia or the US.

[13] In order to comply with the US export control laws, Jet Aviation contends that it would be required to deny employment and internal transfer opportunities to current and previous citizens and permanent residents of proscribed countries, which would ordinarily be a breach of ss 7, 14, 15, 15A, 124 and 127 of the AD Act.

[14] Jet Aviation submits that a failure to comply with the US export control laws, however, would make it, as well as its employees and contractors, potentially liable to sanctions including "multi-million-dollar fines and other penalties."

[15] Jet Aviation submits that it seeks the exemption only insofar as some of its personnel may, at times, be required to access Controlled Technology, when working on a particular project or part of a project or program.

[16] The question for my determination is whether, pursuant to s 113(1) of the AD Act, the exemption sought by the Jet Aviation should be granted.

Procedural matters required by s 113(2) of the AD Act

[17] Before deciding an application, the Tribunal[8] must provide a copy of the application and material filed in support of the application to the Human Rights Commissioner ('the HR Commissioner') and have regard to any submission made by the HR Commissioner on the application, including any submission on the process for considering the application.

[18] In accordance with s 113 of the AD Act, the HR Commissioner was notified and provided with a copy of the application and supporting information. On 22 February 2024, the HR Commissioner indicated that he did not intend to make any submissions in respect of the application.

[19] Following a public consultation process which included providing a copy of the application and supporting information to the Queensland employees, contractors and other workers of Jet Aviation, the Queensland Council of Unions ('QCU') and the Ethnic Communities Council of Queensland, the Tribunal received submissions from the QCU as an interested party. The Tribunal was not notified of any other interested party wishing to be heard with respect to the application.

[20] The Queensland Council of Unions ('QCU') filed written submissions[9] indicating that it did not object to the Tribunal granting the exemption sought by Jet Aviation on the basis that the exemption is subject to relevant conditions similar to those ordered in the decisions of Re: Leidos Australia Pty Ltd[10]; Re: Cobham Aviation Service Australia Pty Ltd & Ors[11]; Re: Rheinmetall Defence Australia Pty Ltd[12] and most recently, Re: Rohde & Schwarz (Australia) Pty Ltd[13].

[21] Accordingly, no objection was received from any third or interested party to the application made by Jet Aviation.

[22] The terms of the exemption order sought by Jet Aviation are as follows:

Pursuant to section 113 of the Anti-Discrimination Act 1991 (QLD) and subject to the conditions contained in the Schedule, an exemption is granted to Jet Aviation Australia Pty Ltd (Jet Aviation) and Jet Aviation Australia (Qld) Pty Ltd (Jet Aviation Qld) from the operation of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (QLD) for the period [5-YEAR PERIOD] [sic].
The exemption is granted in respect of the operation of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (QLD) insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the Act) of Jet Aviation and Jet Aviation Qld's workforce.
The exemption permits Jet Aviation and Jet Aviation Qld to engage in the following activities in the State of Queensland:

(a) Advertise positions and/or otherwise inform applicants for employment or contract work in roles which require access to controlled defence articles and technical data and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by EAR and ITAR controls if they:

(i) are not an Australian citizen; or

(ii) hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or

(iii) hold permanent residency in a country or countries other than the US or Australia; or

(iv) have substantive contacts with countries proscribed by section 126.1 of ITAR or the EAR.

(b) Request and maintain records of information from personnel who perform or may perform work on Jet Aviation or Jet Aviation Qld's premises or offsite and who are subject to Jet Aviation or Jet Aviation Qld's control and direction for positions related to projects which use controlled defence articles and technical data, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR or the EAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (l) below:

(c) Impose a condition of any offer of employment in roles which are likely to require access to controlled defence articles and technical data that an applicant for those roles must, pursuant to ITAR, be authorised to access that controlled defence articles and technical data, whether pursuant to an individual approved obtained from the US Department of State or otherwise;

(d) Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR or the EAR in determining whether those personnel may be offered a role or allocated work that involves access to controlled defence articles and technical data;

(e) Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to controlled defence articles and technical data;

(f) Require personnel involved in projects which access controlled defence articles and technical data to notify Jet Aviation or Jet Aviation Qld (as applicable) of any change to their citizenship or permanent residency status, nationalities or substantive contacts;

(g) Restrict access to controlled defence articles and technical data to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR or the EAR;

(h) Record information relating to security clearances granted to personnel who are under the control and the direction of Jet Aviation or Jet Aviation Qld in relation to work requiring access to controlled defence articles and technical data;

(i) Impose limitations or prohibitions on access to controlled defence articles and technical data on persons not authorised to access the controlled defence articles and technical data;

(j) Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to controlled defence articles and technical data, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement.

(k) Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of controlled defence articles and technical data;

(l) Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR or the EAR, of Jet Aviation or Jet Aviation Qld's personnel in Queensland to:

(i) The US Department of State;

(ii) The US Department of Commerce;

(iii) The Australian Department of Defence; and

(iv) any other person or organisation for which, or on whose behalf, or at whose request Jet Aviation or Jet Aviation Qld undertakes work in respect of which Jet Aviation or Jet Aviation Qld has directly or indirectly an obligation not to transfer controlled defence articles and technical data to persons of certain nationalities.

(a) "ITAR" means the International Traffic in Arms Regulations;

(b) "EAR" means the Export Administration Regulations;

(c) "US" means United States of America.

This exemption applies only to Jet Aviation or Jet Aviation Qld's conduct where:

(a) it is necessary to enable the applicant to obtain and maintain US export licenses, authorisations and approvals or to perform contractual obligations which involve access to controlled defence articles and technical data;

(b) Jet Aviation and Jet Aviation Qld have taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (QLD), including:

(i) reliance of EAR and ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;

(ii) where personnel are nationals or dual nationals of a country not approved for access to controlled defence articles and technical data, then Jet Aviation or Jet Aviation Qld (as applicable in the circumstances) will either request the US Department of State, or request the relevant export licence holders to request the US Department of State to amend the relevant export licences to enable those personnel to have access to controlled defence articles and technical data, unless Jet Aviation or Jet Aviation Qld (as applicable in the circumstances), on reasonable grounds, determine that either:

(A) the personnel are not the best candidate for the relevant position; or

(B) such an application does not have significant prospects of success,

(iii) in the event the US Department of State requires Jet Aviation or Jet Aviation Qld to provide further information specific to an individual, then with the consent of the individual, Jet Aviation or Jet Aviation Qld will work with the individual to supply all relevant information to the US Department of State so than an application for approval may be made in relation to that individual.

Where, pursuant to this exemption, Jet Aviation or Jet Aviation Qld wishes to reserve the right to make a conditional offer of employment in relation to a position which will or may involve access to controlled defence articles and technical data, any advertisement, invitation for expressions of interest, or other promotional information referring to the position must include the information that:

(a) The position will or is likely to require access to controlled defence articles and technical data and that any individual occupying the position must be able to satisfy the EAR and ITAR-based requirements which may require specific authorisation for that individual to access controlled defence articles and technical data; and

(b) if a candidate for the position is concerned as to whether or not they will satisfy the requirement in (a) above, the candidate should contact a nominated member of Jet Aviation's personnel who is able to provide relevant information, including information about the scope of the exemption and the candidate's individual rights.

Jet Aviation and Jet Aviation Qld must provide to the Queensland Human Rights Commission a written report for every 12-month period from the date of this exemption order. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:

(a) The steps it has taken to comply with the terms of the exemption;

(b) The number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and

(c) The implementation of and compliance generally with the terms of the exemption.

[23] Jet Aviation seeks the exemption only insofar as some of its personnel may, at times, be required to access Controlled Technology when working on a particular project of part of a project or program. Accordingly, the proposed exemption would only apply in respect of staff who may require access to Controlled Technology[14] and not in respect of other employees, including for example, Human Resources, Administration and Procurement staff.

[24] Jet Aviation also proposes that, should the exemption be granted, it would take steps to limit the extent to which any discriminatory conduct may arise. Specifically, Jet Aviation undertakes to enforce and apply measures to restrict the access and use of applicant and employee nationality information, including by ensuring that staff members who do not have access to Controlled Technology are not unnecessarily identified or isolated.

[25] The Tribunal has the power, pursuant to s 174B(b) of the AD Act, to grant exemptions in relation to work related matters.

[26] Section 113(1) of the AD Act relevantly provides that, on application by a person, the Tribunal may grant an exemption to the person from the operation of a specified provision of the Act. 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.

[27] The application sought by Jet Aviation seeks the exemption for a period of five years.[15]

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

[29] Section 14 of the AD Act prohibits discrimination in the area of 'pre-work' including by prohibiting discrimination in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered work.

[30] Section 15 of the AD Act prohibits discrimination in the work area including by prohibiting discrimination in varying terms of work, in dismissing a worker, by denying a worker's access to opportunities at work, and the general unfavourable treatment of a worker in anyway in connection with work.

[31] Section 15A of the AD Act prohibits discrimination by a proposed partnership in deciding who should be invited to become a partner and the terms on which a person is invited to be a partner.

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

[33] Section 127 of the AD Act prohibits the publication and display of advertisements which in any way contravene the AD Act.

[34] The exercise of the discretion conferred by s 113 of the AD Act on the Tribunal is broad and unfettered.[16] However, a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.[17] 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

[35] I will address these considerations further below following my consideration of the Human Rights Act 2019 (Qld) ('HR Act').

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

[37] Section 3 of the HR Act provides that the main objects[18] 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.

[38] The way in which the HR Act provides that the main objects are to be achieved[19] include, inter alia, by:

(a) requiring public entities to act and make decisions in a way that is compatible with human rights;[20] 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.[21]

[39] Section 58(1) of the HR Act provides that is unlawful for a public entity to:

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

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

[40] 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."

[41] It has been accepted[22] that a decision made pursuant to s 113 of the AD Act involves the Tribunal acting in an administrative capacity. Consequently, in determining the application, the Tribunal must observe the relevant provisions of s 58 of the HR Act. I will address s 58 and other provisions of the HR Act further below.

Section 58 of the HR Act applies

[42] Section 58 of the HR Act applies to the Tribunal when determining whether or not to grant an exemption pursuant to s 113(1) of the Act. Section 58 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).

[43] Section 7 of the HR Act defines human rights to mean "...the rights stated in part 2, divisions 2 and 3". Part 2, Div. 2 of the HR Act deals with civil and political rights. Section 15 [23] 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.

[44] Section 25 of the HR Act provides for the right to privacy as follows:

(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.

[45] 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.

[46] 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).

Section 48 of the HR Act applies

[47] 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.

[48] Consequently, 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.

[49] Section 48 of the HR Act is contained in Pt. 3, Div. 3 of the 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.

[50] 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.

Section 25 of the AD Act - Genuine occupational requirements exemption

[51] Relevantly, Jet Aviation does not contend that s 25 of the AD Act operates in respect of the relevant positions. Accordingly, I will not consider this provision any further within these reasons.

Application of the HR Act to this matter

What human rights may be affected by the granting of the exemption? - s13(2)

[52] Whether a person's human rights may be affected by the granting of an exemption under s 113(1) of the AD Act, can be determined by reference to the effect of the exemption if it is to be granted.[24]

[53] The human rights relevant to the application are the right to equal protection of the law without discrimination and the right to equal and effective protection from discrimination.

[54] The effect of the exemption sought by Jet Aviation would be to permit it to seek and personal information with respect to a person's nationality, citizenship and place of birth when engaging a person to work in aspects of its business.

[55] The effect of the exemption, if it were granted, would be to permit Jet Aviation to lawfully discriminate on this basis in pre-work and work areas, and, specifically, to be exempt from the application of ss 124 and 127 of the AD Act.

[56] Consequently, I am satisfied, on the material before me that the human rights contained in ss 15(3) and 15(4) of the HR Act, would be affected if the exemption sought by Jet Aviation was granted. Relevantly, the effect of the exemption is to permit discriminatory conduct which would permit conduct that affected a person's right to equal protection of the law without discrimination.[25]

[57] Accordingly, the right to equal recognition and equality before the law will be limited. As such, s 13 of the HR Act will need to be considered in order to determine if the proposed limitations are reasonable and justifiable.

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

[58] 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.

[59] In previous decisions,[26] I have considered the equivalent right in the Victorian Charter, which was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination)[27] ('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.

[60] In Lifestyle Communities,[28] 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.

[61] 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. 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

[62] When determining whether the limitation on a human right is reasonable and justifiable, s 13(2)(b) of the HR Act provides that 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 is a matter that must be considered.

[63] The means by which the purpose is to be achieved includes utilising nationality and national origin information to make determinations about the engagement of Jet Aviation's workforce. It is noted that such a limitation is undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom.

[64] These considerations must be weighed with respect to the purpose of the exemption. The purpose of the exemption is to enable Jet Aviation to comply with the US export control laws which it says is critical for the fulfilment of its contractual obligations with the Department.

[65] I am satisfied in order to fulfil its contractual obligations with the Department, Jet Aviation must comply with the US export control laws.

[66] I am further satisfied that in addition to any potential contractual obligation, Jet Aviation leaves itself and its workforce exposed to possible serious sanctions if the US export control laws are not complied with.

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

[67] There is a clear relationship between the terms of the limitation on human rights and the purpose of the orders sought. On the material before me, I am satisfied that the limitation helps to achieve the purpose for which it is sought.

[68] Having regard to the purpose of the limitation as outlined above, so that Jet Aviation may comply with the US export control laws in order to have access to Controlled Technology, I consider that the terms of the proposed exemption are connected to and provide a means by which the purpose can be achieved.

[69] I do not consider that the terms of the exemption go beyond the purpose of the exemption.

[70] In this regard, I note that in Jet Aviation's submissions that the exemption is only sought to ensure that it complies US export control laws.

[71] This submission is reflected in the conditions attached to the terms of the draft exemption.

[72] The conditions also provide that Jet Aviation will take all steps reasonably available to it to avoid conduct which would otherwise be in breach of ss 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

[73] If limitations go further than is necessary, or if there are less restrictive alternatives available, then such limitations will not be reasonable or justifiable.

[74] Jet Aviation submits that there are no alternative or less restrictive means available to achieve compliance with the US export control laws and provide the services to the Department. Jet Aviation has considered alternative measures including, obtaining Australian criminal history checks and security clearances for their employees, and submits that these measures would not be sufficient to enable Jet Aviation to comply with the US export control laws.

[75] I note that the scope of the exemption is such that it is only sought to apply in circumstances where Jet Aviation must comply with the US export control laws and in order for it to meet its direct and indirect contractual obligations to the Commonwealth. On the material before me, I am not satisfied that there is any less restrictive and reasonable way available to achieve the purpose.

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

[76] In Lifestyle Communities[29] it was held 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, universal humanity, autonomy and worth of the individual and their protection for personal and social development.

[77] Further, it has been held[30] 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.

[78] Jet Aviation submits that the following consequences arise should the exemption not be granted:

(i) First, the Applicants will not be able to meet the Commonwealth of Australia's contract requirements without Controlled Technology. Consistent with Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VGAT 1869, the Applicants submit that the exemption is not being sought solely for commercial or economic purposes.

The Commonwealth of Australia relies on RAAF aircraft to conduct major and vital Defence operations in Queensland and other states, including Command. Control, Communications, Intelligence, Surveillance, Reconnaissance operations, Search and Rescue, and transport and logistics functions. Without these, the Queensland public would be considerably disadvantaged. Jet Aviation's contracts support these vital Defence functions.

(ii) Second, the Applicants (and in particular Jet Aviation Qld) may also not be able to conduct business in Queensland and would not be able to expand business and hire more Queenslanders without limiting this right.

(iii) Third, the Applicants would be in breach of the US laws and exposed to the risk of extraordinarily large fines if it did not limit the rights. Should they be in breach, it may be that the Commonwealth of Australia could also suffer reputational damage and exposure to a breach.

(iv) Fourth, staff members who breach the EAR and ITAR are at risk of many years of imprisonment - that includes the staff members whose nationality is the subject of this application. The limitation sought will protect the Commonwealth contracts for Queensland, local hiring and business in Queensland, the Applicants, individuals working for the Applicants and the dual/previous citizens of the proscribed countries.

(v) Finally, the Applicants submit that if it is not granted an exemption and fails to comply with ITAR requirements, this will impact the support the Applicants provide to the Commonwealth Australia, in particular, the Department of Defence in relation to defence and national security interests for the purposes of protecting Queensland persons of all nationalities.

(vi) The Applicants submit that the limitation in the circumstances of this matter is legitimate and of sufficient importance to limit the human rights affected, and the limitations are consistent with the purpose for which the Applicants have sought and proportionate to and appropriate for achieving this purpose.

[79] I have had regard to the fact that Jet Aviation 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 Department.

[80] 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 limitation to be consistent with the purpose for which it is sought and to be proportionate to and appropriate for achieving that purpose.

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

[82] Section 113(1) of the AD Act confers a broad and unfettered discretion upon the Tribunal to grant an exemption of specified provisions of the AD Act. It has been held that the purpose of s 113 of the AD Act is to allow persons the protection and security of the shield against complaints of unlawful discrimination and circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but when they are not inherently inconsistent with the AD Act.[31]

[83] Section 48 of the HR Act must be considered when considering the application of s 113 of the AD Act.

[84] Section 48(1) of the HR Act does not authorise an interpretation of statutory provisions which is inconsistent with their purpose, rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is "compatible with human rights."[32]

[85] Accordingly, the next step is to consider the matters that have traditionally been considered when granting an exemption pursuant to s 113(1) of the AD Act.

[86] The proposed exemption is necessary to permit Jet Aviation to lawfully perform its activities in Queensland, some of which require it to comply with the US export control laws. The effect of such compliance would amount to unlawful discrimination in so far as information about a person's nationality, citizenship or national origin is used to determine whether a person is permitted access to Controlled Technology.

Whether there are any non-discriminatory ways for achieving the objects or purposes for which the exemption is sought?

[87] Given the nature of the work to be performed, Jet Aviation submits that there are no non-discriminatory ways for achieving the purpose of which the exemption is sought.

[88] If the exemption is granted, it will be on the condition that Jet Aviation will take all steps reasonably available to avoid conduct which would otherwise be in breach of ss 14, 15, 15A, 124 and 127 of the AD Act. I am, however, satisfied that, given the nature of the purpose for the exemption, there are not any non-discriminatory ways available to achieve that purpose.

Whether the exemption is in the community interest

[89] Jet Aviation submits that it is in the community interest for the exemption to be granted because:

(a) it will permit Jet Aviation to conduct its activities which concern matters of national security;

(b) it will permit Jet Aviation to operate in Queensland with the intent of creating new and specialised employment opportunities; and

(c) it will allow for consistency and predictability in the granting of such exemptions given similar exemptions have been granted.

[90] I consider that these matters do support a conclusion that it is in the community interest to grant the exemption.

Whether any other persons or bodies other than the Applicant support the application

[91] As noted above, none of the third or interested parties who were notified with respect to the application, object to the granting of the exemption sought by Jet Aviation.

[92] Jet Aviation submits that the following may occur if the exemption is not granted, as relevantly summarised:

(a) significant financial and other penalties, including imprisonment and/or statutory debarment which would prevent Jet Aviation from accessing the ITAR controlled items for a specified period;

(b) Jet Aviation would be unable to fulfil its contractual obligations with the Department and will therefore not be able to provide the critical services and support which are essential to Australia's defence and national security interests; and

(c) the employment of Jet Aviation personnel across Australia, who perform Department contracted work, may be adversely affected.

[93] I accept that if the exemption was not granted, Jet Aviation would be unable to lawfully conduct activities in Queensland in accordance with its contractual obligations with the Department as it would not be permitted to comply with the US export control laws. This has the potential to undermine the completion of necessary work of the Department.

[94] Section 113(6)(c) of the AD Act provides that an exemption is to be granted for a specified period of not more than 5 years.

[95] Relevantly, I note that one of the proposed conditions[33] by Jet Aviation is that the HR Commissioner be provided with an annual report. In this regard, Jet Aviation proposes that it provide a written report every 12 months for the period of the order detailing:

Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133 (11 June 2024)

At a glance

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Judgment (247 paragraphs)

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