ASC PTY LTD - [2024] WASAT 39

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
EQUAL OPPORTUNITY REGULATIONS 1986 (WA)

CITATION:   ASC PTY LTD [2024] WASAT 39
MEMBER:   PRESIDENT PRITCHARD
HEARD:   30 APRIL 2024
DELIVERED          :   3 MAY 2024
FILE NO/S:   EOA 9 of 2024
BETWEEN:   ASC PTY LTD
Applicant

Catchwords:

Anti-discrimination – Application under s 135 of the Equal Opportunity Act 1984 (WA) for exemption from ss 37, 39 and 49 of the Equal Opportunity Act 1984 (WA) – Discrimination on the ground of race – Applicant contracted to maintain, and provide training for the use of Collins Class Submarines for use by the Royal Australian Navy – Applicant subject under contract to export controls contained in the International Traffic in Arms Regulations (US) and the Export Administration Regulations (US) – Whether exemption from provisions of the Equal Opportunity Act 1984 (WA) prohibiting racial discrimination in areas related to employment warranted in the circumstances – Terms and conditions on grant of exemption

Legislation:

Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s 50, s 50(c), s 50(d), s 52, s 135, s 135(1), s 135(2), s 135(3), s 136, s 136(1), s 136(2), s 137, Parts II, IIAA, IIA, IIB, III, IV, IVA, IVB, IVC, IX
Equal Opportunity Regulations 1986 (WA), reg 24

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant

Ms S Vila and Ms S Ventrice

Solicitors:

Applicant

In Person

Cases referred to in decision(s):

BAE Systems Australia Ltd and Commissioner for Equal Opportunity [2019] WASAT 79
Cobham Aviation Services Australia Pty Ltd and Ors [2023] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By an application dated 29 February 2024 (Application), ASC Pty Ltd (ASC) has applied under s 135(2) of the Equal Opportunity Act 1984 (WA) (EO Act) for a further exemption from the provisions of s 37, s 39 and s 49 of the EO Act, for a term of 5 years. On 17 March 2014, and again on 15 March 2019, ASC had been granted an exemption by the Tribunal in materially the same terms as are now sought.
Sections 37, 39 and 49 are all concerned with discrimination in the area of employment, including contracting arrangements, on the grounds of race. The term 'race' is defined in s 4 of the EO Act to include 'colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act'.
Although the Commissioner for Equal Opportunity (CEO) was initially named as the respondent to the Application, he filed an affidavit indicating that he did not wish to be a party or to be heard on the Application. In those circumstances, it is appropriate to make an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ASC PTY LTD [2024] WASAT 39
Case: [2024] WASAT 39
Decision Date: 3 MAY 2024

CaseChat Overview and Summary

ASC Pty Ltd, a company contracted to maintain and train the Royal Australian Navy on the use of Collins Class Submarines, applied for an exemption under section 135 of the Equal Opportunity Act 1984 (WA) from certain provisions of the Act that prohibit racial discrimination in employment. The company sought an exemption from sections 37, 39, and 49 of the Act, arguing that it was subject to strict export controls under the International Traffic in Arms Regulations (US) and the Export Administration Regulations (US) which necessitated the exclusion of certain individuals based on nationality. The dispute centred on whether the exemptions were justified under the circumstances and, if so, what terms and conditions should apply.

The court had to determine whether the applicant met the criteria for exemption under section 135 of the Equal Opportunity Act 1984 (WA), which requires that discrimination be necessary and proportionate to achieve a legitimate aim. Additionally, the court considered the nature of the export control regulations and how they impacted the company's ability to comply with the anti-discrimination provisions of the Act. The court also needed to assess whether any terms and conditions imposed on the exemption would adequately safeguard against racial discrimination while allowing the company to meet its obligations under the export regulations.

The court found that the applicant was subject to stringent export controls that necessitated certain exclusions based on nationality. Given the national security implications and the strict regulatory framework governing the export of sensitive military technology, the court concluded that the exemptions were warranted. The court imposed terms and conditions on the exemption, including requirements for the company to implement robust monitoring and reporting mechanisms to ensure compliance with anti-discrimination laws and to avoid unnecessary exclusions. These conditions aimed to balance the need for national security with the protection of equal employment opportunities.

The court granted the applicant an exemption from sections 37, 39, and 49 of the Equal Opportunity Act 1984 (WA) on the condition that ASC Pty Ltd adhere to the specified terms and conditions, including the implementation of monitoring and reporting mechanisms. This decision recognised the unique challenges posed by the intersection of national security regulations and anti-discrimination laws, and sought to provide a framework that allowed for both to be addressed effectively.

Orders