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…

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.

Keep reading for free

Create a free CaseChat account to read Cobham Aviation Services Australia Pty Ltd & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WASAT 21
Decision Date: 29 MARCH 2023

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Cobham Aviation Services Australia Pty Ltd & Ors involved an application for an exemption from certain provisions of the Equal Opportunity Act 1984 (WA) relating to discrimination on the grounds of race in employment. The applicants, Cobham Aviation Services Australia Pty Ltd and others, provided aerial maritime search and rescue services, maritime surveillance services, and maintenance of aircraft used for these purposes to the Australian Maritime Safety Authority (AMSA) and the Australian Border Force. These aircraft were equipped with controlled defence articles obtained from US suppliers. The US law and export licenses required the applicants to prohibit persons of certain nationalities from accessing these articles. The applicants sought an exemption from sections 37, 39, and 49 of the Act, which prohibit discrimination based on race in areas related to employment.

The court was tasked with determining whether the applicants were entitled to an exemption from the anti-discrimination provisions under section 135 of the Equal Opportunity Act 1984 (WA), given the stringent requirements imposed by US law and export licenses. Specifically, the court had to consider whether the need to comply with US laws and licenses constituted a valid reason for the applicants to implement discriminatory practices in their employment conditions. The court also had to decide on the appropriate terms and conditions for any exemption granted, ensuring that it did not unduly compromise the anti-discrimination principles enshrined in the Act.

The court carefully evaluated the legal and factual circumstances surrounding the application for exemption. It found that the applicants' need to comply with US law and export licenses did indeed create a situation where discrimination was necessary to meet international obligations. The court considered the broader implications of non-compliance with US laws, which could have significant ramifications for Australia's international relations and security. The court concluded that an exemption was warranted, but only under strict conditions to mitigate any potential discrimination. These conditions included ensuring that the discriminatory practices were limited to what was strictly necessary and that the applicants took steps to minimize any adverse impact on affected employees.

The court granted the exemption from sections 37, 39, and 49 of the Equal Opportunity Act 1984 (WA) on the condition that the applicants adhere to specific terms and conditions. These included the requirement to implement measures to minimise the discriminatory impact on employees, ensure transparency in their compliance with US laws, and regularly report to the relevant authorities on compliance and the impact of the exemption. The court emphasised that the exemption was to be reviewed periodically to ensure ongoing compliance with the Act's objectives and the international obligations under US law.

Orders