Cobham Aviation Services Australia Pty Ltd & Ors - [2023] WASAT 21

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   COBHAM AVIATION SERVICES AUSTRALIA PTY LTD AND ORS [2023] WASAT 21
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD:   DETERMINED ON THE DOCUMENTS
PUBLISHED           :   29 MARCH 2023
FILE NO/S:   EOA 12 of 2022
BETWEEN:   COBHAM AVIATION SERVICES AUSTRALIA PTY LTD
First Applicant
COBHAM SAR SERVICES PTY LTD
Second Applicant
COBHAM NAS PTY LTD
Third Applicant
SURVEILLANCE AUSTRALIA PTY LTD
Fourth Applicant
COBHAM AVIATION SERVICES ENGINEERING PTY LTD
Fifth Applicant
NATIONAL JET EXPRESS PTY LTD
Sixth Applicant

Catchwords:

Application under s 135 of the EO Act for exemption from ss 37, 39 and 49 of the Equal Opportunity Act 1984 (WA) – Applicants contracted to provide aerial maritime search and rescue services and maritime surveillance services to AMSA and Australian Border Force or to conduct maintenance of aircraft used for those purposes – Controlled defence articles obtained from US suppliers installed on the aircraft – US law and export licences require that the applicants prohibit persons of certain nationalities accessing the controlled defence articles – Whether exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances – Terms and conditions on grant of exemption

Legislation:

Arms Export Control Act, 22 USC (2004) (USA)
Corporations Act 2001 (Cth)
Equal Opportunity Act 1984 (SA)
Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s135, s136(1), s136(2), s 137
Equal Opportunity Regulations 1986 (WA), r 24
State Administrative Tribunal Act 2004 (WA), s 60(2)
US International Traffic to Arms Regulations, 22 CFR (2003) (USA)

Result:

Application for exemption granted

Category: B

Representation:

Counsel:

First Applicant	:	Ms T Birss
Second Applicant	:	Ms T Birss
Third Applicant	:	Ms T Birss
Fourth Applicant	:	Ms T Birss
Fifth Applicant	:	Ms T Birss
Sixth Applicant	:	Ms T Birss

Solicitors:

First Applicant	:	Vardon Legal
Second Applicant	:	Vardon Legal
Third Applicant	:	Vardon Legal
Fourth Applicant	:	Vardon Legal
Fifth Applicant	:	Vardon Legal
Sixth Applicant	:	Vardon Legal

Cases referred to in decision:

BAE Systems Australia Ltd and Commissioner for Equal Opportunity [2019] WASAT 79
Cobham Aviation Services Australia Pty Ltd and Ors (SACAT, Member Stratton-Smith, 26 November 2019)
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266
Re Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326
Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL

Introduction and outcome

The First – Fourth Applicants are principally engaged in providing aviation services that involve aerial maritime surveillance of Australian coastlines and maritime search and rescue services. The Fifth Applicant and the Sixth Applicant are contracted to maintain the aircraft used in the course of the surveillance. The aircraft involved contain certain technology (Controlled Defence Articles), which is obtained from suppliers in the United States and the use of which is regulated by certain laws of the United States. The arrangements by which the Controlled Defence Articles are provided for use in the aircraft require the Applicants to prohibit persons of certain races or nationalities, or who are or were citizens of certain nations, from having access to the Controlled Defence Articles.
Under the terms of the Equal Opportunity Act 1984 (WA) (EO Act), refusing to employ or contract with people on the basis of their race or national or ethnic origin, or asking about their race or nationality or preventing an otherwise qualified employee or contractor from undertaking certain work based upon their race or their national or ethnic origin would likely be unlawful under ss 37, 39 and 49 of the EO Act. The Applicants have, therefore, applied pursuant to s 135 of the EO Act, for an exemption from the operation of ss 37, 39 and 49 of the EO Act.
For the reasons set out below, I will grant the exemption sought for a period of five (5) years. The exemption is granted subject to conditions. The orders giving effect to this decision are set out at the conclusion of these reasons for decision.

Procedural history and jurisdiction

Section 135(1) of the EO Act permits the Tribunal on application of a person, to by order, grant an exemption from the operation of a specified provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC of the EO Act.
Section 135(3) requires that before an exception is granted, the Tribunal cause notice of the application to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct.
Regulation 24 of the Equal Opportunity Regulations 1986 (WA) (EO Regulations) provides that the Tribunal's executive officer must cause every application for an exemption to be served upon the Commissioner for Equal Opportunity (Commissioner), who shall be a party to the application unless the Commissioner lodges with the executive officer an affidavit setting out the reasons why the Commissioner does not wish to be a party to the application.
Section 136(1) of the EO Act requires the Tribunal to publish the decision, the reasons for the decision, the findings of fact material to the decision and a summary of the evidence on which those findings were based not later than one month after it makes a decision under s 135. Section 136(2) provides that a failure to comply with s 136(1) does not affect the validity of the decision.
On 3 May 2022, the Applicants applied for the exemption pursuant to s 135 of the EO Act.
On 7 July 2022, pursuant to an order of the Tribunal, the Applicants published notice of their exemption application in the West Australian Newspaper. A copy of the terms of the advertisement is Schedule 1 to the reasons for decision.
I am satisfied that persons who might have an interest in the proceedings have had an opportunity to apply to be joined as parties and to be heard. No application to be joined as a party was received by the Tribunal.
The Commissioner provided the Tribunal with an affidavit dated 13 June 2022, setting out the reasons why he did not wish to be a party to the application. Accordingly, on 16 June 2022, the Tribunal ordered that the Commissioner was no longer a party to the proceeding.

The legal framework

Section 37 of the EO Act comes within Part III, Division 2 of the EO Act. That section provides:
37.Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of the race of that person —
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the race of the employee —
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3)Nothing in subsection (1) renders it unlawful for an employer to discriminate against a person, on the ground of the race of the person, in connection with employment to perform domestic duties within a private household in which the employer resides.
Section 39 is also within Part III, Division 2 of the EO Act. That section provides as follows:
39. Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's race —
(a)in the terms or conditions on which the principal allows the contract worker to work; or
(b)by not allowing the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(c)by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d)by subjecting the contract worker to any other detriment.
Section 49 of the EO Act is within Part III, Division 3A of the EO Act. It provides:
49. Requesting or requiring provision of certain information
Where, by virtue of a provision of Division 2 or this Division, it would be unlawful in particular circumstances for a person to discriminate against another person, on the ground of the other person's race, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by way of completing a form or otherwise) that persons of a different race would not, in circumstances that are the same or not materially different, be requested or required to provide.
The provisions from which the Applicants seek to be exempt are all concerned with discrimination in the area of employment, including via contracting arrangements, on the grounds of race. The term 'race' is defined in s 4 of the EO Act as follows:
race includes 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[.]

Exemption - principles

The effect of an exemption is that an act that would otherwise be unlawful by virtue of the EO Act will not be unlawful: s 137 EO Act.
An exemption may be granted for up to five years on such terms and conditions as the Tribunal orders: s 135(6) EO Act. An exemption may be varied on the application of the person to whom it is granted or at the instance of the Tribunal: s 135(6)(b) EO Act. An exemption may be expressed to apply only to such circumstances or in relation to such activities as are specified in the order: ss 135(1), 135(3) and 135(6) EO Act.
Section 135 of the EO Act confers what appears to be an unconfined discretion on the Tribunal to grant exemptions. However, in Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (ADI), Martin CJ (as he then was) at [43] made the following statements, which he described as 'clear' and 'uncontroversial', about the principles which govern the scope of the discretion to grant an exemption under s 135 of the EO Act:
1.Without clear words to that effect, a discretion, the exercise of which will affect the rights of a citizen, will not ordinarily be regarded as absolute and unfettered.
2.As a general rule, the scope of the discretion is to be ascertained by reference to the scope and purpose of the statute.
This means that even though the discretion is very broad, the Tribunal must have regard to the scope and purpose of the EO Act in determining an exemption application under s 135.
The purpose of the EO Act is set out in its preamble, which is:
An act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar's website, or involving sexual or racial harassment or, in certain cases, on gender history grounds.
The objects of the EO Act are set out in s 3 as follows:
(a)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and
(b)to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; and
(c)to promote recognition and acceptance within the community of the equality of men and women; and
(d)to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.
In ADI, Martin CJ observed that the EO Act does not prohibit all forms of discrimination. The EO Act not only permits 'positive discrimination' but also conduct which, though discriminatory, can be justified by a variety of purposes or objects other than those which are identified in s 3 of the EO Act: [67] – [68]. His Honour said at [69]:
So, when regard is had to the specific exceptions to Pt III of the Act, and the general exceptions to the Act in Pt VI, it is clear that the legislature has taken the view that conduct which would otherwise be prohibited because it is discriminatory should nevertheless be permitted because it can be justified by reference to a variety of considerations which are extraneous to the anti-discriminatory objects of the Act, and in particular the objects specified in s 3 of the Act.
His Honour observed that the Tribunal is permitted to grant exemptions because it was recognised in the EO Act that Parliament could not anticipate all the circumstances in which discriminatory conduct might occur and might nevertheless be justifiable.[1] His Honour said at [59]:
… And against the likely contingency that the Parliament has not been able to anticipate all the circumstances in which discriminatory conduct might nevertheless be justifiable, it has empowered the Tribunal to grant exemptions in particular cases.
[1] In the debate in the Legislative Council when the Equal Opportunity Bill was being debated, the then Attorney General, Hon J M Berinson, said the lack of specified considerations in s 135 was a deliberate drafting choice done with a view to providing maximum flexibility: WA Parliamentary Debates Legislative Council, 23 October 1984, 2746.
In considering the scope of the power to grant exemptions and the reasons why exemptions might be granted, his Honour stated at [72]:
… [P]rovided there is a rational basis for the discriminatory conduct, it will fall to the Tribunal to determine whether the interests to be served by permitting that conduct outweigh the detriment which flows from discriminatory conduct.
At [74] his Honour said:
… if, as I would infer his Honour [being a reference to Morris J sitting as the President of the Victorian Civil and Administrative Tribunal in Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532] was referring to a process whereby the Tribunal weighs the advantages, both public and private which would flow from the grant of exemption, against the detriment which flows from discriminatory conduct, then I am in agreement with his Honour.
Matters which a Tribunal might have regard to, although not exhaustive or mandatory or relevant in every case, include:
1.whether the exemption sought is necessary;
2.whether the proposed exemption is reasonable and necessary having regard to the reasons for which it is sought;
3.whether it is in the public interest that it be granted;
4.whether there are non-discriminatory ways of achieving the purposes for which the exemption is sought; and
5.whether the applicants have and will continue to take steps to mitigate the adverse effects of the proposed exemption.
In Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222, the Tribunal stated that it is in the public interest for exemptions which have already been granted to be renewed where there has been no material change in the applicant's circumstances, stating at [16]:
Where there is no material change in circumstances, it is in the public interest in terms of orderly and proper administrative decision-making that a decision in relation to a further exemption from the operation of a provision of the EO Act should be made consistently with the earlier decision to grant an exemption.

Issues for determination

The issues to be determined therefore are:
1.whether the Tribunal should grant the exemption sought; and
2.if an exemption is to be granted, for what period of time it should apply; and
3.if an exemption is to be granted, whether it should be subject to any conditions or limitations.

Determination on the documents

Section 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) permits the Tribunal, where it thinks it appropriate, to determine a proceeding entirely on the basis of documents, without the parties or their representatives or any witnesses attending or participating in a hearing.
In this case, I thought it was appropriate to determine the exemption application on the basis of the documents. The Applicants agreed that this was an appropriate case in which to do so. Accordingly, on 12 August 2022, I made an order that, subject to any further order of the Tribunal, the application would be determined entirely on the documents.
On 29 November 2022, I held a further directions hearing at which I indicated to the Applicants that I had formed the preliminary view that the affidavits filed in support of the application did not sufficiently address the reasons why an exemption might be granted, and I gave leave for the Applicants to file further affidavit material in support of their application. That material was filed on 20 January 2023.
On 9 February 2023, I held another directions hearing as I still did not consider that the affidavits sufficiently addressed the matters that are required to be considered in determining an application for an exemption. For example, among other deficiencies, there was no factual information that addressed the reason why the Applicants sought to have the exemption granted for a period of five years. I also requested the Applicants file submissions regarding the conditions they sought to have the Tribunal impose. I noted that I was concerned about the enforceability of the Applicants' proposed conditions and whether they could properly be regarded as conditions.
On 3 March 2023, the Applicants filed five short paragraphs under the heading 'submissions' in which they submitted:
1.that the conditions were sought because they are identical to those imposed in South Australia (a reference to the South Australian Civil and Administrative Tribunal's (SACAT) decision of 26 November 2019 in Cobham Aviation Services Australia Pty Ltd and Ors (SACAT, Member Stratton-Smith, 26 November 2019);
2.that their understanding of the South Australian position is that if conditions are not complied with, the exemption does not operate;
3.that the Applicant only seeks a condition broad enough to allow it to comply with the ITAR; and
4.that it is a matter for the Tribunal to determine whether any conditions are necessary, and, if so, what they might be and that granting the exemption without conditions would not cause them any operational difficulties.

From those submissions, and the way in which the Applicants have conducted the proceeding, I can only assume that they believed that because an exemption had been granted on similar grounds in South Australia and Queensland the grant of an exemption under the EO Act was a fait accompli, thus requiring little to be done in support of the application. While the grant of an exemption in another jurisdiction is a factor to which I may have regard in determining this application, the application made to this Tribunal is to be resolved on its merits and in accordance with the law as it applies in Western Australia. Regrettably, I was not assisted in resolving the application expeditiously by the approach taken by the Applicants.
I have determined the application on the documents. The documents to which I have had regard in determining the application are:
1.Affidavit of Sorcha O'Neill, Head of Legal Special Mission dated 2 May 2022;
2.Second Affidavit of Sorcha O'Neill, Head of Legal Special Mission dated 20 January 2023;
3.Third Affidavit of Sorcha O'Neill dated 3 March 2023;
4.Affidavit of John Craig Byrne, Commissioner, dated 13 June 2022;
5.Affidavit of Thea Birss, Partner Vardon Legal dated 30 June 2022;
6.Advertisement of 7 July 2022 published in the West Australian Newspaper;
7.Copy of an order confirmation from the West Australian in connection with the advertisement;
8.Applicants' written submissions dated 9 September 2022;
9.Affidavit of Matthew Smith dated 20 January 2023; and
10.Applicants' written submissions dated 3 March 2023.

Commissioner's position

The Commissioner does not oppose the granting of the exemption sought by the Applicants. The Commissioner's affidavit notes:
(a)The orders sought are in similar terms to orders which have previously been made in favour of other applicants, granting exemptions from the operation of Part III of the EO Act in order to allow the applicants to comply with their obligations under the ITAR in respect to 'third country' and dual nationals.
(b)The Commissioner did not seek to remain a party in those applications and cannot identify any issues or facts which are sufficiently different or novel in this application that would warrant his remaining a party in this proceeding.
(c)The SACAT had granted the Applicants exemptions from equivalent provisions of the Equal Opportunity Act 1984 (SA) in 2019.
(d)The Commissioner seeks that a condition in terms equivalent to that in para (f) of the conditions of the approval given by the SACAT[2] be imposed by the Tribunal in the event that the exemption application was to be granted.
[2] The Orders of the SACAT is Exhibit 1 to the affidavit of Sorcha O’Neill affirmed on 2 May 2022. Those Orders were made on 6 November 2019.
It is to be expected that the Commissioner would be involved in the proceedings where he was opposed to an exemption being granted. His decision not to oppose the application and the reference to being unable to identify any materially different facts to those upon which applications have previously been granted under Part III of the EO Act in order to allow the Applicants to comply with their obligations under the ITAR in respect to 'third country' and dual nationals suggests the Commissioner considers that the proposed exemption is warranted. I will return to his submission that a condition equivalent to that in para (f) of the approval given by the SACAT later in these reasons.

Factual findings

The Applicants

I make the following findings of fact concerning the Applicants.
Cobham Aviation Services Australia Pty Ltd (First Applicant) is a proprietary company limited by shares which is registered under the Corporations Act 2001 (Cth) and is privately owned and operated. All the shares in the capital of the First Applicant are owned by FR Aviation Group Ltd and Aedion Investment Units Trust. It was incorporated on 8 March 1988 under the name Calset Pty Ltd.
Cobham SAR Services Pty Ltd (Second Applicant) is wholly owned by National Jet Systems Pty Ltd and was incorporated on 22 April 1998, although under a different name.
Cobham NAS Pty Ltd (Third Applicant) is wholly owned by the First Applicant and was incorporated on 19 November 1993 under the name ME Shelf 195 Pty Limited.
Surveillance Australia Pty Ltd (Fourth Applicant) is wholly owned by National Jet Systems and was incorporated on 12 September 1990 with the name Calydon Pty Ltd.
Cobham Aviation Services Engineering Pty Ltd (Fifth Applicant) was incorporated on 13 February 2002 with the name National Jetfix Pty Ltd. At the time the application was made, it was wholly owned by the First Applicant. Since the application was made, the shares in the Fifth Applicant were transferred from the First Applicant to the Sixth Applicant.
National Jet Express Pty Ltd (Sixth Applicant) was incorporated on 1 March 1994. At the time the application was made the Sixth Applicant was wholly owned by the First Applicant's parent entity, Cobham Limited. The Sixth Applicant was purchased by Rex Freight and Charter Pty Ltd (a subsidiary of Rex Holdings Pty Ltd) on 30 September 2022.
Cobham Limited is the ultimate holding company of each of the First – Fourth Applicants.
The First – Fourth Applicants are principally engaged in the provision of aviation services. These services include aerial maritime surveillance operations of Australian coastlines, and search and rescue operations.
The Second Applicant is contracted to use its surveillance aircraft to provide airborne search and rescue services to the Commonwealth of Australia (Commonwealth) and the Australian Maritime Safety Authority (AMSA) under a contract dated 20 October 2014 (AMSA Contract). Under the terms of the contract, it is also required to provide similar services to other nations close to Australia as the Commonwealth directs. While the AMSA operations are based in Victoria, the contract requires the Second Applicant to post aircraft at other locations, including Perth.
The Third Applicant employs special mission engineers and corporate staff who assist in carrying out the AMSA Contract.
The Fourth Applicant is contracted by the Department of Home Affairs, Australian Border Force to conduct aerial maritime surveillance (ABF Contract). It employs aircrew, management personnel and aircrew pilot instructors who conduct aerial surveillance operations. The pilots, crew and engineers on aircraft used for this purpose live and work in Western Australia and elsewhere. The main base for operations associated with the ABF Contract is in Broome. This ensures that the Applicant can meet its contractual obligations to provide surveillance in the Indian Ocean Region.
The Second and Fourth Applicants have contracts with the Fifth and Sixth Applicants to supply within Western Australia, personnel to perform maintenance on aircraft used in the performance of the AMSA Contract and the ABF Contract.

The Controlled Defence Articles and the ITAR

I make the following findings of fact concerning the Applicants' use of Controlled Defence Articles and the obligations the Applicants owe as a result of their contracts with their suppliers of the Controlled Defence Articles.
In order to perform the services that are provided under the AMSA Contract and the ABF Contract, defence technologies obtained from United States suppliers is installed on the aircraft. Some of that technology is Controlled Defence Articles.
It is common for governments to impose import and export controls to ensure that the export and import of defence related technology is consistent with its national interest and international obligations. In this case the United States government has done so via the Arms Export Control Act, 22 USC (2004) (USA) and the associated US International Traffic in Arms Regulations, 22 CFR (2003) (USA) (ITAR).
The agreements are generally in the form of export licences or technical assistance agreements which operate as the export authorisation by which a United States contractor is able to transfer or provide access to Controlled Defence Articles to persons including the First – Fourth Applicants.
The ITAR provides that United States defence technology which comes within the definition of Controlled Defence Articles may not be transferred to a person from a third country or to a national of a third country except as specifically authorised by the United States Department of State.
The ITAR also denies access to Controlled Defence Articles by proscribed countries and their nationals, whether directly or indirectly, by United States based suppliers or foreign based third parties.
In granting export approvals (usually an export licence or technical assistance agreement), the United States Department of State require that the licences and agreements contain conditions:
1.requiring the identification of the nationality of all employees and contractors who will have access to Controlled Defence Articles;
2.requiring disclosure to the United States Contractor of the nationality of all employees and contractors who will have access to Controlled Defence Articles; and
3.imposing restrictions or prohibitions on persons of particular nationalities having access to the Controlled Defence Articles.
The First – Fourth Applicants have entered into export licences and technical assistance agreements with the United States suppliers of the Controlled Defence Articles which permit it to obtain the Control Defence Articles. The export licences and technical assistance agreements contain conditions of a kind set out in para 57 (1) – (3) above.

The obligations on the Applicants as a result of the use of Controlled Defence Articles

I make the following findings set out at paras 60 – 65 about the obligations on the Applicants as a result of their use of Controlled Defence Articles.
It is impossible for the First – Fourth Applicants to meet their contractual obligations under the ABF Contract and the AMSA Contract without using the Controlled Defence Articles.
The contracts between the Second and Fourth Applicant and the Fifth and Sixth Applicant requires the Fifth and Sixth Applicants to comply with ITAR obligations in their supply of aircraft maintenance personnel. Passing the ITAR obligations on to the Fifth and Sixth Applicants is required by the terms of the export agreements or technical assistance agreement which permit the First – Fourth Applicants to obtain the Controlled Defence Articles.
In order to comply with its obligations in relation to the Controlled Defence Articles, the Applicants have prepared a Technology Control Plan (TCP).[3] That plan is intended to guide the Applicants' employees and contractors in the protection and handling of the Controlled Defence Articles in accordance with the requirements of the relevant United States export controls which are set out in the relevant export agreements or technical assistance agreements. The TCP sets out the rules of access to the Controlled Defence Articles which incorporate the ITAR as they relate to the transmission of the Controlled Defence Articles to foreign nationals or third country nationals.
[3] Annexure SO2 to the affidavit of Sorcha O’Neill.
The Applicants are obliged to be able to report on compliance with the ITAR to their United States suppliers of the Controlled Defence Articles and to the United States Department of State. The Commonwealth is also required to be able to report on compliance with the ITAR by the Applicants.
Some of the Controlled Defence Articles are embedded in the aircraft. Although it is possible to strip it out of the aircraft when the aircraft is to undergo heavy maintenance, it is not practical to strip it out of an aircraft for the purposes of line maintenance, routine checks or ad hoc maintenance, which occurs in Broome, among other places. Accordingly, engineers who perform routine checks, line maintenance and ad hoc maintenance of the aircraft used in the performance of the contracts have access to Controlled Defence Articles when doing so. When stripping out the Controlled Defence Articles before heavy maintenance is performed, the engineers employed by the Fifth and Sixth Applicants, who undertake the heavy maintenance on behalf of the Fourth Applicant, also access the Controlled Defence Articles.
Other Controlled Defence Articles are not embedded in the aircraft. Those Controlled Defence Articles are locked away when they are not in use.

Duration of the contracts

I make the findings of fact set out at paras 67 – 68 about the duration of the ABF Contract and the AMSA Contract.
The term of the AMSA Contract will end on 20 October 2028. AMSA has a right of renewal for a further term which, if exercised, will come to an end in 2031.
The ABF Contract will end in 2017. It is likely that the Fourth Applicant will have to participate in tender process to secure a contract to perform similar works beyond that date.

Consequences of refusal of exemption

I find that the First – Fourth Applicants could not carry out their contractual obligations to Australian Border Force and the AMSA without installing the Controlled Defence Articles onto its aircraft.
The affidavits reveal, and I find, that the consequences of failing to comply with the terms and conditions of an export licence, or technical assistance agreement include significant fines, imprisonment, civil penalties, potential debarment from further defence contracts, and the loss of security clearances in related defence contracts. I accept that these are serious, even grave, consequences for the First – Fourth Applicants.
The AMSA Contract requires the Second Applicant to operate within a maritime and aviation search and rescue region of nearly 53 million square kilometres covering the Australian land mass, the east Indian Ocean, the Timor, the Arafura and the Tasman Seas, part of the Southern Ocean and the Australian Antarctic Territory. The evidence, which I accept, is that, practically speaking, because of the aircraft's range, the Second Applicant could not cover this area of operation without having aircraft based in Perth, even though the contract with AMSA does not specifically require aircraft to be based in Perth. Without using aircraft based in Perth, the time it would take to deliver search and rescue operations within the Western Australian region would be significantly longer, and that extra time would result in the endangering of, and possibly the loss of, life.
I accept the evidence set out in the affidavits to the effect that the ABF Contract assists in the detection of illegal activity in protected areas, illegal exploitation of natural resources, marine pollution, prohibited imports and exports, unauthorised maritime arrivals to Australia, piracy and violence at sea, maritime terrorism and activities that compromise biosecurity. The surveillance provided assists the Australian Border Force to detect and assess risk and track vessels operating in or approaching Australia's maritime zones. That information is used by Australian Border Force to anticipate and respond to identified threats using surface and air assets. I accept that without having aircraft based in Western Australia, the provision of services to Australian Border Force would be significantly compromised.
It is said, and I accept, that if the First – Fourth Applicants cannot operate from Western Australia, ninety Western Australians are likely to lose their jobs, many of whom work in remote regions of Western Australia. I accept that the loss of those ninety Western Australian jobs would also adversely impact on the workers' families and the communities in which they live and work.
The affidavit filed by Mr Smith asserts that the primary impact on the public interest, if an exemption were not granted to the Fifth and Sixth Applicants, would be a negative impact on the Fourth Applicants' capacity to deliver search and rescue services and surveillance services to Australia, to the detriment of Australia. That would be the consequence of the Fifth and Sixth Applicants being unable to maintain the aircraft.
The affidavits filed by the Applicants contain information taken from Instagram. They include pictures of aircraft and personnel involved in particular search and rescue operations. They also show, and I accept, that the Applicants contribute to their communities, including by participating in air shows and the education of the public about the role they play in aerial search and rescue operation at schools and other venues.
The Instagram pages provided also show that the First – Fourth Applicants have been contracted to fly workers to various mine sites in remote parts of Western Australia. It is not said, either in the affidavits or in the Applicants' submissions, of what relevance that is to the determination of the exemption application. For example, it is not said that the same aircraft are used for that purpose, and it is not said that those important operations would have to cease if the surveillance operations and the search and rescue operations were unable to be provided to Australian Border Force and AMSA from Western Australia. I have been unable to make any relevant findings of fact or draw any conclusions from that material.
The Applicants submit that the Instagram posts taken from the Cobham Aviation Services Instagram page which shows staff participation in R U OK? Day, showing that Cobham held a Family Day and showing what was captioned the essence of summer in the mid-west WA's Meekatharra with these 'hot day clouds' drifting across the endless blue sky behind the imposing tail of our Q400, which were annexed to the affidavit of Matthew Smith and the second affidavit of Sorcha O’Neill, demonstrate the contribution made by the Applicants' employees to the local community in which they live and work. I infer from that submission that some employees would no longer be able to live and work in Western Australia if the exemption is not granted as they would no longer be able to be based in Western Australia. I accept that being unable to operate from Western Australia may cause some of the Applicants' employees to relocate from Western Australia to obtain work. It is not possible to ascertain the impact that that would have on the economy of Broome or Western Australia more generally.

The Applicants' submissions

The Applicants submit that the exemption is sought in order to allow the Applicants to lawfully comply with the ITAR and their contractual obligations in the operation of their businesses.
It is submitted that without the exemption, the Applicants would be unable to perform work utilising the Controlled Defence Articles, including work which relates to national security, and that an inability to perform that work would negatively impact Australia's national security, the Western Australian economy, the Applicants' ability to operate, their financial positions and the lives of their employees who live in Western Australia.
It is submitted that there is no express exemption under the EO Act which would assist in relieving the Applicants. Accordingly, they submit, the exemption sought is necessary.
The Applicants also submit that the exemption is reasonable in light of the reasons for which it is sought, and the fact that it is only sought to the extent that it is necessary to permit the Applicants to perform work using Controlled Defence Materials.
The Applicants also submit that the exemption sought is reasonable because if it is not granted:
(a)they may suffer significant financial penalties for breaching their contractual and security obligations;
(b)they may be prevented from entering into future arrangements with United States Contractors;
(c)it will be difficult to obtain future contracts through the Australian Department of Defence;
(d)they may suffer financial loss and employee loss;
(e)the Commonwealth, through the Department of Defence, may incur substantially increased costs; and
(f)there may be an adverse effect on the Western Australian economy.

The Applicants submit that such adverse consequences may put Australia's defence capabilities at risk.
The Applicants submit that the preservation of national interest, such as defence interests, are the crux of successful exemption application cases which recognise that national security and the protection of Australian jobs are matters of public interest sufficient to satisfy the granting of an exemption under anti-discrimination and equal opportunity laws.
Further, the Applicants submit that consistency across jurisdictions is said to be in the public interest and notes that on 26 November 2019, an exemption was granted to the Applicants under the equivalent provisions of the Equal Opportunity Act 1984 (SA) in 2019/SA003247 and that an exemption was granted by the Queensland Industrial Relations Commission in Re Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326.
The Applicants submit that they have taken, and will continue to take, steps to mitigate the potential adverse effects of the exemption in South Australia and propose to take the same steps in Western Australia. The Applicants submit that the conditions it has proposed will minimise the impact of the exemption as far as is reasonably practicable.
The Applicants submit that the following additional matters support the granting of the proposed exemption:
1.They have complied with the conditions imposed in South Australia.
2.The Commissioner did not identify any non‑discriminatory means of achieving the purpose of the proposed exemption.
3.No person responded to the advertisement objecting to the proposed exemption or wishing to be heard in respect of the application.
Finally, the Applicants submit that there are no non-discriminatory means of achieving the objects and purposes for which the proposed exemption is sought.

Reasoning and conclusion

Exemption

Given the facts as I have identified them, I accept that the Applicants provide, or assist in the provision of, important services to Australian Border Force and the AMSA which serve the national interest.
I also accept that the Applicants cannot perform their contractual obligations to perform those services without access to the Controlled Defence Articles.
Further, I accept that failure to comply with the contractual restrictions imposed as a result of the ITAR and the export licences or technical assistance agreements would affect Australia's national interests, the interests of Western Australia and the corporate interests of the Applicants in the ways submitted.
I accept that the Applicants have no control or influence over the restrictions imposed by the ITAR.
I accept that the Fifth and Sixth Applicants are also contractually bound to discriminate in their employment practices in order to perform their contracts to maintain the aircraft used in the surveillance undertaken under the ABF Contract and the AMSA Contract and that the maintenance of the aircraft is essential to their continued operation.
I, therefore, accept that there is a need for the grant of the exemption and that there is no non-discriminatory way in which the same object can be achieved other than by the grant of the exemption.
The question then to be determined is whether the interests which are served by the granting of the exemption outweigh the detriment that would flow from the discriminatory conduct permitted by the grant of an exemption: ADI at [74] – [75].
I have concluded that they do.
The requirement for employees and contract workers and applicants for employment or contract work to provide information about their nationality, country of birth and past and current citizenship is unlikely to cause much detriment in and of itself. Any detriment will occur from the use of that information to exclude people of particular nationalities, countries of birth and who hold or have held citizenship of particular countries from particular work. I have no evidence before me from which I can draw any conclusions about the extent of that detriment. All I can do in the circumstances is identify the potential detriment and conclude that a loss of a job opportunity may have serious consequences for particular individuals. Further, restricting some employees or contractors from certain work might create two classes of employees with the result that staff of particular nationalities may be regarded differently to others in the Applicants' workforces.
In contrast, the inability to discriminate as proposed will affect the private commercial interests of the Applicants and the public interest served by the operation of surveillance aircraft from Western Australia. I regard those interests as compelling.
The fact that similar exemptions have been granted to the Applicants in other Australian jurisdictions, and the reasons for which those exemptions have been granted, reinforce my view that the national interest is served by the granting of the exemption.
The fact that similar exemptions have been granted to other entities which have been required to comply with ITAR requirements by the Tribunal[4] also reinforces the view that it is appropriate to grant the exemption in this case.
[4] See, for example, Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111; BAE Systems Australia Ltd and Commissioner for Equal Opportunity [2019] WASAT 79; Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266 (Raytheon).
The fact that the Commissioner is not opposed to the granting of the exemption in the terms sought is a factor that weighs in favour of the granting of the exemption.
So too, does the fact that no person sought to be joined to the proceedings to oppose the grant of the exemption.
I have also taken into account that the orders which the Applicants have proposed and which I will make (subject to one amendment to which I will refer below) will require them to take steps to avoid and reduce the adverse effect that any discrimination that might occur as a result of the existence of the exemption.
The Applicants seek orders granting an exemption from the provisions of ss 37, 39 and 49 of the EO Act. In the circumstances, I find it is appropriate to grant an exemption from each of those provisions.

Circumstances in which the exemption should be expressed to apply

Section 135(6)(a) of the EO Act permits the Tribunal to grant an exemption subject to such terms and conditions as are specified in the order. Section 135(6)(c) provides that an exemption may be expressed to apply only to such circumstances or in relation to such activities as are specified in the order: ss 135(1), 135(3) and 135(6) EO Act.
The Applicants seek orders that the exemption be granted only to the extent that they may:
(a)request information regarding 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 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 will have access to Controlled Defence Articles in the performance of their work;
(g)disclose to the United States contractors with whom any of the Applicants are party to a United States Export Authorisation and to the United States Department of State, the nationality, country of birth, and current and past citizenships 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.
I have concluded that, in light of the facts as I have found them, the limits on the exemption sought by the Applicants, which are set out in (a) – (h) above, are reasonable. Those provisions essentially limit the exemption so that where the Applicants seek to employ, or actually employ or engage, contract workers who will have no access to Controlled Defence Articles in the course of their work, the exemption will not operate.
I do not consider that the terms of the exemption go beyond the purpose behind the exemption. In this regard, I note that the Applicants seek the exemption subject to conditions that it will only apply to conduct that is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles and where the Applicants have taken all steps that are reasonably available to avoid the necessity of engaging in conduct that would otherwise breach the EO Act.

Conditions of exemption

The Applicants have sought that the exemption be subject to the following conditions:
(a)It will only apply to conduct by the Applicants where:
(i)that conduct is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles; and
(ii)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 United States contractors) to avoid the necessity of engaging in conduct that would otherwise be in breach of ss 37, 39 and 49 of the EO Act.
(b)Where, in the exercise of this exemption, an 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 to that person;
(c)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 or contract workers, the passes must 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 reason for that person's level of access;
(d)All information relating to the 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 resource officers of the Applicants or their properly appointed nominees on a 'need to know' basis;
(e)The Applicants' employment policies shall be amended as soon as reasonably possible to refer to the terms of this exemption, including all conditions attaching to it, and to make it clear that the purpose of the request for information regarding nationality, country of birth, and current and past citizenship is made solely for the purposes of compliance with United States' laws.
(f)The First Applicant must prepare and retain records annually on 26 November for the duration of the exemption on the First –Fourth Applicants' compliance with the exemption requirements and changes to its procedures to reflect amendments to the ITAR, and as to how its employees and contractors are affected.
(g)The Sixth Applicant must prepare and retain records annually on 26 November for the duration of the exemption on the Fifth and Sixth Applicants' compliance with the exemption requirements and changes to its procedures to reflect amendments to the ITAR, and as to how its employees and contractors are affected.
While the power to impose conditions in s 135(6)(a) of the EO Act appears unfettered, that is not the case. Although the Tribunal has a very broad discretion to impose conditions, the conditions must be imposed having regard to the objects, scope and purpose of the EO Act. Primarily then, conditions imposed under s 135(6) of the EO Act will be directed at minimising the prospect of, and actual impact of, actual discrimination and the protection of workers who may be affected by the proposed discrimination resulting from the operation of the ITAR.
Proposed conditions (a) – (e) are consistent with the conditions upon which the exemptions have been granted in South Australia and Queensland. They are also consistent with the conditions which have been imposed in other cases where exemptions from discrimination in employment on the grounds of race have been granted. Those conditions will ensure that the Applicants' employees and contractors and potential employees and contractors are aware of the exemption and its terms, are made aware of the reason for their exclusion from a particular kind of work or access to a particular place or equipment, that information about an employee or contract worker's nationality and race or citizenship is limited to those people who have a legitimate operational reason for possessing that information and to ensure that the Applicants' policies are amended to make the purpose for requesting information about an individual's place of birth, nationality, and current and past citizenship clear to the Applicants' employees. I am satisfied that the purpose of such conditions is to limit the impact of the exemption on employees, contract workers and potential employees or contract workers, and that making people aware of the exemption, its purpose, and limits will assist in ensuring compliance with its terms.
The First – Fourth Applicants submit that they are operated as a national business, and it is said that they will report on their compliance with any exemption conditions as a single business unit. It is for that reason the obligation to retain records in relation to compliance is expressed in proposed condition (f) to fall only on the First Applicant. Similarly, because the Fifth and Sixth Applicants are related, it is said that the obligation should only be imposed on the Sixth Applicant.
Despite the Applicants' assertion that proposed conditions (f) and (g) are the same as those imposed by the SACAT in granting the exemption, they, in fact, are not. The SACAT's conditions (f) and (g) obliged the relevant Applicants to report annually to the Equal Opportunity Commissioner on its 'compliance with the exemption requirement and changes in its procedures to reflect amendments to the ITAR, and as to how its employees and contractors are affected'.
In Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266 (Raytheon) at [71], the Tribunal declined to impose a condition, which had been proposed by the Commissioner, which would have required reporting on compliance annually to the Commissioner. In that case, the Tribunal did so for two reasons. First, because the EO Act neither required nor contemplated that the Commissioner should have a role in monitoring compliance with exemption orders. Second, because the creation of such a role would have a tendency to encourage applications for exemption that are not properly justified, or that are in wider terms than can be justified on the basis that monitoring would be a panacea for any disadvantage caused by the grant of an exemption; an outcome which the Tribunal found undesirable. In that case, the Tribunal did, however, make an order that Raytheon's compliance with the terms of the exemption order would be relevant to any application for variation or renewal of the exemption in the future.[5]
[5] Raytheon at [72].
Since Raytheon was decided, the Tribunal, differently constituted, has granted exemptions under s 135 of the EO Act with a condition requiring reporting to the Commissioner on compliance with the exemption. In Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222, Deputy President Parry renewed an exemption on conditions that were imposed in the original exemption with an added condition requiring reporting on compliance to the Commissioner on a six‑monthly basis. No reasons for departing from the views expressed in Raytheon were given in that case. However, his Honour noted that the Commissioner did not oppose the renewal of the exemption provided that the Tribunal imposed a condition requiring Thales to report to the Commissioner every six months on matters relating to the exemption, and that Thales consented to the imposition of that condition.[6]
[6] Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222 at [2].
As I stated earlier in these reasons, the Commissioner in this case has indicated that he does not oppose the granting of an exemption provided conditions requiring the Applicants to report to him annually in relation to compliance are also made.
The position in South Australia is different to that in Western Australia. Section 92(2) of the Equal Opportunity Act 1984 (SA) provides that an exemption granted under s 92(1) may be revoked by the Tribunal on the breach of a condition. Section 92(3) also provides that an application for revocation of an exemption may be made to the Tribunal by, among other persons, the Commissioner and s 94(4) entitles the Commissioner to be heard on an application made under s 92. The South Australian Commissioner, therefore, clearly has a role in the monitoring and enforcement of compliance with exemptions. There are no equivalent provisions in the EO Act.
In my view, despite the fact that the EO Act does not expressly confer upon the Commissioner a role in enforcing compliance with the terms of an exemption, the imposition of a condition requiring reporting to the Commissioner would be valid for the following reasons.
First, while the EO Act does not require or specifically contemplate the monitoring by the Commissioner of compliance with an exemption, the fact that the Commissioner considers that he has a role in doing so can be seen from his affidavit where he stated that he did not oppose the application but seeks to have a condition requiring reporting to him be imposed.
Second, in my view, the imposition of such a reporting requirement would further the purpose of the EO Act, which is, among other things, to promote equality of opportunity in WA and to provide remedies in respect of discrimination on particular grounds, including race.[7]
[7] See long title to the EO Act.
Third, the provision of information to the Commissioner and his review of that information periodically would be permitted by the functions conferred on the Commissioner by the EO Act, which include, in s 80 of the EO Act, the carrying out of investigations, research and inquiries relating to discrimination of the kinds rendered unlawful under the EO Act and the doing of anything conducive or incidental to the performance of functions conferred or imposed on the Commissioner under s 80 of the EO Act.
Fourthly, having regard to the objects, scope and purpose of the EO Act, it is important that there be some oversight of compliance with an exemption that is granted to ensure that discrimination does not occur beyond that which the Tribunal has determined is reasonable in the particular case. The Applicants' proposed conditions (f) and (g), which require the retention of records, would serve little purpose without more.

Finally, reporting to the Commissioner is commonly a condition imposed on the granting of an exemption under s 135 of the EO Act.
I consider that a reporting condition that is consistent with that imposed in Queensland by the Industrial Relations Commission and in South Australia by SACAT, which requires reporting by 26 November each year, is appropriate. Consistency in the obligations imposed on the Applicants is generally desirable.
I note that there has recently been a review of the EO Act undertaken by the Western Australian Law Reform Commission (WALRC),[8] and that on 16 August 2022, the Attorney General announced that it was the government's intention to amend the EO Act in a way that was largely consistent with the WALRC's recommendations. The inclusion of provisions akin to ss 92 and 94 of the Equal Opportunity Act 1984 (SA) to make clear that the Commissioner has a role in overseeing compliance with exemptions and specifying the consequences of non-compliance with conditions does not appear to have been canvassed by the WALRC who neither recommended nor rejected such amendments. [9] Perhaps consideration could still be given to whether the EO Act should be amended in this way.

Term of exemption

[8] The Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) Project 111 Final Report (May 2022).

[9] The Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) Project 111 Final Report (May 2022).

I find that the grant of an exemption of a period of five years is appropriate given that the contract with AMSA extends beyond that five‑year period. An exemption for a five‑year term allows the Applicants commercial certainty while the contracts are in force but also allows the existence of the order to be reconsidered after a reasonable interval, so as to take account of any change in circumstances which might mean that the exemption is no longer necessary.

Order

I will make an order in terms of Schedule 2 of this decision.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Deputy President Judge Glancy
29 MARCH 2023

SCHEDULE 1

Exemption Application

An application has been made by Cobham Aviation Services Australia Pty Ltd & Ors for an exemption from sections 37, 39 and 49 of the Equal Opportunity Act 1984 (WA) insofar as those sections extend to the race of applicants for employment, employees and contract workers of the applicant entities. If any person wishes to be a party to this application for exemption, they must by 28 July 2022 notify, in writing, the State Administrative Tribunal at Level 6, State Administrative Tribunal Building, 565 Hay Street, PERTH WA 6000 by post, fax (08 9325 5099) or email ([email protected]) and a determination will be made at a later date as to whether such a person may be added as a party to the application. The application is next listed for directions in the State Administrative Tribunal on 12 August 2022.

SCHEDULE 2

The Tribunal orders:

1.Pursuant to s 135(2) of the Equal Opportunity Act 1984 (WA) (the EO Act), the Applicants are granted an exemption from compliance with the provisions of sections 37, 39 and 49 of the EO Act for a period of five years, insofar as those sections relate to the 'race' (as defined in section 4 of the EO Act) of applicants for employment, employees and contract workers to the extent that they may:
(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 any of the Applicants are party to a US Export Authorisation and to the US Department of State, the nationality, country of birth and current and past citizenship of all employees and contractors who will have access to Controlled Defence Articles in the performance of their work; and
(h)establish security systems which will prevent the unauthorised re–export or retransfer of Controlled Defence Articles.

2.The exemption applies subject to the following conditions:
(a)It will only apply to conduct by the Applicants where:
(i)that conduct is necessary to enable the Applicants to enter into and/or perform contractual undertakings requiring access to Controlled Defence Articles; and
(ii)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 37, 39 and 49 of the Act.

(b)Where, in the exercise of this exemption, an 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.
(c)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.
(d)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.
(e)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 the purpose of the request for information regarding nationality, country of birth and current and past citizenship is made solely for the purposes of compliance with United States laws.

3.The First Applicant must prepare and retain records, and report annually to the Commissioner for Equal Opportunity on 26 November for the duration of the exemption, on the First to Fourth 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.
4.The Sixth Applicant must prepare and retain records, and report annually to the Commissioner for Equal Opportunity on 26 November for the duration of the exemption, on the Fifth and Sixth 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.