Ascent Pty Ltd, Re [2024] QIRC 234

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Ascent Pty Ltd [2024] QIRC 234 PARTIES: Ascent Pty Ltd (Applicant) CASE NO: AD/2024/39 PROCEEDING: Application for exemption DELIVERED ON: 23 September 2024 MEMBER: HEARD AT: McLennan IC On the papers ORDER: 1. The Orders are in the terms set out in Schedule A to this Decision. CATCHWORDS: LEGISLATION: 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 the applicant offers professional engineering services, project management, and logistics support to the defence, intelligence and security industries – where the exemption is required to comply with the International Traffic in Arms Regulations – exemption granted Anti-Discrimination Act 1991 (Qld) s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s127 Human Rights Act 2019 (Qld), s 3, s 4, s 5, s 7, s 8, s 9, s 13, s 15, s 25, s 48, s 58 US International Traffic in Arms Regulations CASES: Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 -- 1 of 22 -- 2 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] 43 VR 446 Wotton v State of Queensland (No 5) [2016] FCA 1457 Reasons for Decision Introduction [1] By application filed on 28 May 2024, the Applicant applied under s 113 of the Anti- Discrimination Act 1991 (Qld) (the AD Act) for an order exempting the Applicant from ss 7(g), 14, 15, 15A, 124 and 127. The exemption is sought for a period of five years, -- 2 of 22 -- 3 insofar as those sections relate to the 'race' for employment, employees and contract workers.1 [2] The question for determination is whether the Applicant 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). The exemption application [3] In the exemption application, the Applicant submits: • The Applicant offers professional engineering services, project management, and logistics support to the Defence, intelligence and security industries. • The Applicant is regularly engaged to support projects which are managed by organisations subject to United States law, in particular, the International Traffic in Arms Regulations (ITAR). • The Applicant is also regularly engaged to support projects with the Australian Government, which requires security assessments under the Australian Security and Intelligence Organisation Act 1979 (Cth) (ASIO Act). The security assessments require confirmation of the citizenship status of the relevant employee, and race and nationality are a consideration in the assessments. • The Applicant is engaged on these projects either directly by the Australian Defence Force, or alternatively the Applicant is engaged as a sub-contractor, by another organisation which is engaged as a primary contractor on a project with the Australian Government or the United States. • The Applicant's engagement on defence projects is therefore subject to additional regulations and requirements, typically passed down by the primary contractor requiring the Applicant to ensure it has the requisite security clearances and is otherwise in compliance with applicable legislation including the ITAR. • As a result, the Applicant is required to identify the nationality and country of origin of its employees (including prospective employees) and based on that information make further enquiries if necessary and make a decision about the employee's employment and/or involvement in a particular project. 1 Race is defined in sch 1 of the Anti-Discrimination Act 1991 (Qld) to include colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin. -- 3 of 22 -- 4 [4] The Applicant relies on the evidence of Ms Celanie Meyer2 with respect to the reasoning for bringing the Application, including their operations, engagement on defence projects, the relevant ITAR applicable to them, consequences of non-compliance and the requirement to establish the nationality of the Applicant's employees and contractors. Procedural matters [5] Pursuant to s 113(2) of the AD Act, before deciding an application, the Tribunal3 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 7 June 2024, the Industrial Registry forwarded a copy of the Application and supporting material to the QHRC. The QHRC advised they did not intend to make any submissions. Application for exemption [7] The Applicant seeks an exemption in the following terms: 1. 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 from the date of this order, insofar as those sections relate to the race of applicants for employment, employees and contract workers. 2. The exemption permits the Applicants to engage in the following activities: (a) request information relating to the nationality, country of birth and current and past citizenship from existing and potential employees and contractors; (b) 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; (c) 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; (d) 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; 2 Affidavit of Ms C. Meyer – Business Manager, filed 28 May 2024. 3 The Queensland Industrial Relations Commission is the Tribunal for the purposes of s 113 of the Anti- Discrimination Act 1991 (Qld). -- 4 of 22 -- 5 (e) 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; (f) 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; (g) disclose to US Contractors with whom any of the Applicant 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 (h) establish security systems which will prevent the unauthorised re-export or retransfer of Controlled Defence Articles. 3. This exemption applies only to the Applicants' conduct where: (a) that conduct is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles; and (b) 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). 4. This exemption applies subject to the following conditions: (a) 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; (b) 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; (c) 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; (d) 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 -- 5 of 22 -- 6 regarding nationality, country of birth and current and past citizenship is made solely for the purposes of compliance with United States laws; and (e) The Applicant must report to the Queensland Human Rights Commission annually 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. The relevant legislative provisions The AD Act [8] 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: 113 Tribunal (1) The tribunal, on application by— (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. Note— See also section 174C in relation to the tribunal's powers for deciding the application. … (6) An exemption— (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. -- 6 of 22 -- 7 [9] The Applicant seeks exemption from the operation of ss 7(g), 14, 15, 15A, 124 and 127 of the AD Act for a period of five years.4 [10] Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of "race". [11] 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. [12] 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. [13] 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. [14] Section 124 of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based. [15] 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. [16] In Re: Leidos Australia Pty Ltd ('Leidos'),5 Industrial Commissioner Hartigan (as she then was) stated: [43] The exercise of the discretion conferred by s 113 of the AD Act on the Tribunal is broad and unfettered.6 However, a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.7 These considerations include: (a) whether the exemption is necessary; (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; 4 Application for exemption or renewal of exemption filed 28 May 2024, Annexure 1, [1], [25]. 5 [2021] QIRC 229. 6 Re: Kalwun Development Corporation Limited [2019] QIRC 141, [6]. 7 Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21. -- 7 of 22 -- 8 (e) whether it is reasonable and appropriate to grant the exemption; and (f) the effect of not granting the exemption. [19] I will address these matters below following my consideration of the Human Rights Act 2019 (Qld) (HR Act). The HR Act [20] In Leidos, Industrial Commissioner Hartigan (as she then was) 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 objects8 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 achieved9 include, inter alia, by: (a) requiring public entities to act and make decisions in a way compatible with human rights;10 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.11 [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] Section 48 of the HR Act is applicable to the Commission by virtue of s 5(2)(c) of the HR Act and requires that all statutory provisions 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. [22] 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.12 On that 8 Human Rights Act 2019 (Qld), s 3. 9 Ibid, s 4. 10 Ibid, s 4(b). 11 Ibid, s 4(f). 12 Ibid s 9(4)(b). -- 8 of 22 -- 9 basis, 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. Section 58 of the HR Act [23] Section 58 of the HR Act relevantly provides as follows: 58 Conduct of public entities (1) It is unlawful for a public entity— (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. (6) To remove any doubt, it is declared that— (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: 15 Recognition and equality before the law (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. -- 9 of 22 -- 10 (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: 25 Privacy and reputation A person has the right – (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: 8 Meaning of compatible with human rights An act, decision or statutory provision is compatible with human rights if the act, decision or provision— (a) does not limit a human right; or (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: 13 Human rights may be limited (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— (a) the nature of the human right; (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; -- 10 of 22 -- 11 (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 [30] Section 5 of the HR Act relevantly provides as follows: 5 Act binds all persons (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. (2) This Act applies to— (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] Section 48 of the HR Act is contained in pt 3, div 3 of the HR Act and provides as follows: 48 Interpretation (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. -- 11 of 22 -- 12 (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. (4) This section does not affect the validity of— (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. [32] 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. Application of the HR Act to this matter Affected human rights [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.13 [40] The effect of the exemption would be to allow the Applicant to seek and use personal information 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 Applicant 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 earlier decisions of VCAT have 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 (as she then was) comments in Leidos: [99] The right to privacy, in the HR Act,14 mirrors the right to privacy in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Victorian Charter").15 The right to 13 Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869. 14 Human Rights Act 2019 (Qld), s 25. 15 Section 13. -- 12 of 22 -- 13 recognition equality16 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),17 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,18 a narrow approach was taken by the court and the term "arbitrary" was determined19 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,20 Warren CJ indicated21 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),22 Mortimer J, after considering, inter alia, the above authorities, indicated a preference23 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. 16 Ibid, s 15. 17 [2010] VCAT 328; 33 VR 139, [63] – [64] (this decision was overturned on appeal but this reasoning was not the subject of a ground of appeal). 18 [2010] VSC 219; 27 VR 409. 19 Ibid, [51] and [56]. 20 WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR 446. 21 Ibid, [114]. 22 [2016] FCA 1457. 23 Ibid, [716]. -- 13 of 22 -- 14 [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 Applicant 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 (as she then was) 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)24 ("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. 24 [2009] VCAT 1869, [285] – [287]. -- 14 of 22 -- 15 [115] In Lifestyle Communities,25 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.26 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 Applicant's 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 Applicant to comply with the ITAR. The ITAR require the Applicant to have an effective screening process to identify the race or nationality of its employees to identify whether they have substantive contact with restricted countries. At present, all projects the Applicant works on are subject to the ITAR and require security clearances under the ASIO Act. If the Applicant fails to comply with the ITAR, the Applicant would be exposed to a range of civil and criminal penalties, including debarment from further defence contracts. The exemption sought therefore is crucial to the continuance of its commercial operations in Queensland and Australia. 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. 25 Ibid, [390]. 26 Ibid [392]. -- 15 of 22 -- 16 [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 Applicant seeks the exemption subject to conditions that will only apply to conduct that is necessary to enable the Applicant to comply with the ITAR and that the Applicant has 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 Applicant contends there are no less restrictive and reasonably available ways to enable the Applicant to comply with the ITAR without the exemption. [53] I accept that the Applicant is required to acquire and use the nationality, citizenship and national origin information of potential workers. [54] In Leidos, Industrial Commissioner Hartigan (as she then was) noted the following: In Thales,27 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.28 [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 (as she then was) concluded: [130] It has been held29 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 held30 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. 27 Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) [2014] VCAT 1441, [47]. 28 Re: Leidos Australia Pty Ltd [2021] QIRC 229, 27 [128]. 29 Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, [312]. 30 Ibid. -- 16 of 22 -- 17 [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,31 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. [57] I agree with the reasoning in the analogous matter of Leidos as extracted directly above and am satisfied that the limitation on human rights is reasonable and justifiable. The exemption power [58] Section 113(1) of the AD Act confers a broad and unfettered discretion upon the Commission to grant an exemption of specified provisions of the AD Act. [59] Section 48 of the HR Act requires that s 113 of the AD Act must, to the extent possible that is consistent with its purpose, be interpreted in a way that is compatible with human rights. [60] I will now consider the relevant factors in determining whether an exemption should be granted pursuant to s 113(1) of the AD Act. Is the exemption necessary? [61] The Applicant is required to have an effective screening process to identify the race or nationality of its employees to identify whether they have substantive contact with restricted countries as governed by the ITAR. The exemption is therefore necessary to enable the Applicant to comply with the ITAR and its contractual obligations with primary contractors subject to the ITAR without contravening the act, thereby allowing the Applicant to deliver its professional engineering services, project management, and logistics support to the Defence, intelligence and securities industries. To obtain the required information in compliance with the ITAR, the Applicant's conduct may 31 Raytheon Australia Pty Ltd (Human Rights) [2014] VCAT 1370, [130]. -- 17 of 22 -- 18 contravene the AD Act in so far as the Applicant is required to identify and disclose the nationality of potential employees and contractors who may be involved in their operations. [62] I am satisfied the exemption is necessary to permit the Applicant to lawfully perform their activities. Whether there are any non-discriminatory ways for achieving the objects or purposes for which the exemption is sought? [63] The Applicant submits there are no less restrictive and reasonably available ways to achieve the purpose of complying with the ITAR. [64] If the exemption is granted, it will be on the condition that the exemption will only apply to conduct where that conduct is necessary and the Applicant have taken all steps that are reasonably available to avoid the necessity of engaging in conduct that would otherwise be in breach of the AD Act. [65] I am satisfied there are not any non-discriminatory ways available to achieve the purpose of the exemption. Whether the exemption is in the community interest [66] If the Applicant fails to comply with the ITAR, it is exposed to a range of civil and criminal penalties, including debarment from further defence contracts. Such consequences would be detrimental to the Applicant's business. The Applicant would also likely be in breach of its contractual obligations to primary contractors, which could lead to the termination of the contract, which may in turn lead to loss of future opportunities and therefore a loss of employment opportunities for Queensland workers. If exemption was refused, the Applicant could not provide assurances with respect to its employees not having substantial connections to restricted or prohibited countries, which would likely cause international defence spending to be diverted outside Australia and a reduction of defence jobs here. Therefore, I am satisfied that the exemption is in the community interest. Whether any other persons or bodies other than the Applicant support the application [67] There is no evidence before me that any other person or body, other than the Applicant, support the application. [68] Notably however, the Applicant has had a similar exemption granted in South Australia. As Industrial Commissioner Hartigan (as she then was) found in Leidos,32 it is 32 Re: Leidos Australia Pty Ltd [2021] QIRC 229. -- 18 of 22 -- 19 appropriate to give weight to the fact that a tribunal in another jurisdiction has reached the view that the exemptions are, under the terms of similar legislation, appropriate. Further, exemptions under s 113 of the AD Act have been granted to other organisations in the defence industry also subject to the ITAR and ASIO Act for the same or substantially similar reasons that this exemption is sought in this Commission.33 The effect of not granting the exemption [69] The consequences of not obtaining an exemption include: • potential suffering from being exposed to a range of civil and criminal penalties; • potential to be debarred from further defence contracts; • breach of contractual obligations to primary contractors, which could lead to the termination of contracts; • financial and employment loss; • there may be an adverse impact on the Queensland economy. [70] I accept that the impacts that may result from not granting the exemption are significant. I consider it appropriate and reasonable to grant the exemption sought by the Applicant. Term of the exemption sought [71] 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." I will grant the exemption for a period of 5 years from the date of the order. Conclusion [72] For the forgoing reasons, I grant the exemption sought by the Applicant. Order [73] I will make an order in terms of Schedule A of this decision. 33 See eg Re: Leidos Australia Pty Ltd [2021] QIRC 229; Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326. -- 19 of 22 -- 20 Schedule A It is ordered that: 1. The Applicant 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 from the date of this order, insofar as those sections relate to the 'race' (as defined in section 4 of the Anti-Discrimination Act 1991 (Qld)) of Applicant for employment, employees and contract workers. 2. The exemption permits the Applicant to engage in the following activities: (a) request information relating to the nationality, country of birth and current and past citizenship from existing and potential employees and contractors; (b) 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; (c) 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; (d) 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; (e) 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; (f) 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; (g) disclose to US Contractors with whom the Applicant is 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 -- 20 of 22 -- 21 will have access to Controlled Defence Articles in the performance of their work; and (h) establish security systems which will prevent the unauthorised re-export or retransfer of Controlled Defence Articles. 3. This exemption applies only to the Applicant's conduct where: (a) that conduct is necessary to enable the Applicant to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles; and (b) the Applicant has 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). 4. This exemption applies subject to the following conditions: (a) 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 Applicant or any of their related entities, the Applicant 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; (b) where the Applicant uses 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; (c) 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 Applicant or their properly appointed nominees on a 'need to know' basis; (d) the Applicant's 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 -- 21 of 22 -- 22 regarding nationality, country of birth and current and past citizenship is made solely for the purposes of compliance with United States laws; and (e) the Applicant must report to the Queensland Human Rights Commission annually for the duration of the exemption on the Applicant's 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. -- 22 of 22 --