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BAE SYSTEMS AUSTRALIA LIMITED

BAE SYSTEMS AUSTRALIA LIMITED

Case [2025] WASAT 54 12 June 2025

Discrimination

Equal Opportunity

Exemption

Contractual Obligations

Compliance

Anti-Discrimination Law

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   BAE SYSTEMS AUSTRALIA LIMITED [2025] WASAT 54
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS & FINAL SUBMISSIONS RECEIVED 29 MAY 2025
DELIVERED          :   12 JUNE 2025
FILE NO/S:   EOA 33 of 2024
BETWEEN:   BAE SYSTEMS AUSTRALIA LIMITED
First Applicant
ASC SHIPBUILDING PTY LIMITED
Second Applicant

Catchwords:

Equal Opportunity Act 1984 (WA) (EO Act) - Further exemption application - Race - Nationality - Application for further exemption under s 135(2) of the EO Act from the operation of s 37, s 39 and s 49 of the EO Act - Applicants require access to defence technology from United States to meet contractual obligations - Applicants require further exemption to comply with contractual and legal obligations - International Traffic in Arms Regulations (ITAR) - Export Administration Regulations (EAR) - Whether further exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances - Further exemption granted for 5 years - Terms and conditions imposed on grant of further exemption

Legislation:

Defence Controls Act 2012 (Cth)
Electoral Act 1907 (WA), s 17
Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s 50, s 50(d), s 51, s 52, s 69, s 70, s 71, s 72, s 73, s 74, s 135, s 135(1), s 135(2), s 135(3), s 135(6), s 136(1), s 136(2), s 137, Pt VI, Pt IX
Equal Opportunity Regulations 1986 (WA), reg 24
Export Control Act 2002 (UK)
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application for further exemption granted

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A

Solicitors:

First Applicant	:	Allens Solicitors, Sydney
Second Applicant	:	Allens Solicitors, Sydney

Case(s) referred to in decision(s):

ASC Pty Ltd [2024] WASAT 39
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Cobham Aviation Services Australia Pty Ltd and Ors [2023] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Jet Aviation Australia Pty Ltd [2024] WASAT 122
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111
Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266
Saab Australia Pty Ltd [2025] WASAT 23

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 30 August 2024 the First Applicant, BAE Systems Australia Limited (BAE Systems) and the Second Applicant, ASC Shipbuilding Pty Limited (ASC Shipbuilding) made an application to this Tribunal under s 135(2) of the Equal Opportunity Act1984 (WA) (EO Act) seeking an order granting them a further exemption from the operation of s 37, s 39 and s 49 of the EO Act (Application).
The most recent…

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: BAE SYSTEMS AUSTRALIA LIMITED [2025] WASAT 54
Case: [2025] WASAT 54
Decision Date: 12 JUNE 2025

CaseChat Overview and Summary

BAE Systems Australia Limited applied for a further exemption from certain provisions of the Equal Opportunity Act 1984 (WA), specifically sections 37, 39 and 49, which relate to discrimination on the grounds of race. The application was made under section 135(2) of the Act, and the exemption sought was related to the need to access defence technology from the United States to meet contractual obligations, which were subject to the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). The exemption was also necessary for the company to comply with its contractual and legal obligations.

The court had to determine whether it was warranted to grant a further exemption from the discrimination provisions of the Act in circumstances where the applicant required access to defence technology from the United States. The court considered the international legal obligations and the contractual obligations of the applicant, and weighed these against the principles of equal opportunity and non-discrimination. The court found that the exemption was necessary for the applicant to meet its contractual and legal obligations, and that the exemption would not result in discrimination on the grounds of race.

The court granted the exemption for a period of five years, with certain terms and conditions imposed on the grant of the exemption. The conditions included the requirement for the applicant to report annually on its compliance with the exemption and to provide information on the use of the defence technology. The court also imposed conditions to ensure that the exemption would not result in discrimination on the grounds of race, and that the applicant would take all reasonable steps to prevent such discrimination. The court noted that the exemption was limited to the specific circumstances of the case, and that it did not set a precedent for other cases.

Orders