Commissioner For Equal Opportunity v ADI Limited
[2007] WASCA 261
•28 NOVEMBER 2007
COMMISSIONER FOR EQUAL OPPORTUNITY -v- ADI LIMITED [2007] WASCA 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 261 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:138/2005 | 1 AUGUST 2007 | |
| Coram: | MARTIN CJ WHEELER JA PULLIN JA | 27/11/07 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR EQUAL OPPORTUNITY TRADES AND LABOUR COUNCIL OF WESTERN AUSTRALIA WESTERN AUSTRALIANS FOR RACIAL EQUALITY INC ADI LIMITED ADI MUNITIONS PTY LIMITED ADI ADVANCED SYSTEMS PTY LTD THALES UNDERWATER SYSTEMS PTY LTD THALES TRAINING AND SIMULATION PTY LTD |
Catchwords: | Appeal Anti-discrimination Application for exemption from operation of s 37 and s 39 of the Equal Opportunity Act 1984 (WA) Exemptions relating to nationality of employees, job applicants and contract workers Discretion of the State Administrative Tribunal Balancing of interests in determining rational basis for discriminatory conduct Objects, scope and purpose of the Act |
Legislation: | Anti-Discrimination Act 1977 (NSW), s 126 Anti-Discrimination Regulations 2004 (NSW), cl 5 Electoral Act 1907 (WA), s 17 Equal Opportunity Act 1984 (WA), s 3, s 4, s 36, s 37, s 39, s 50, s 51, s 52, s 135, s 137 Interpretation Act 1984 (WA), s 51(1) Justices of the Peace Act 2004 (WA), s 8 State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | ADI Ltd v Commissioner for Equal Opportunity [2005] WASAT 259 Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532 Boeing Australia Holdings Pty Ltd [2003] QADT 21 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Jupiter Holding Pty Ltd v Commissioner for Equal Opportunity [2005] WASAT 202 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 Secretary to the Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 Stevens v Fernwood Fitness Centres Pty Ltd [2001] VCAT 1869 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COMMISSIONER FOR EQUAL OPPORTUNITY -v- ADI LIMITED [2007] WASCA 261 CORAM : MARTIN CJ
- WHEELER JA
PULLIN JA
- First Appellant
TRADES AND LABOUR COUNCIL OF WESTERN AUSTRALIA
Second Appellant
WESTERN AUSTRALIANS FOR RACIAL EQUALITY INC
Third Appellant
AND
ADI LIMITED
First Respondent
ADI MUNITIONS PTY LIMITED
Second Respondent
ADI ADVANCED SYSTEMS PTY LTD
Third Respondent
THALES UNDERWATER SYSTEMS PTY LTD
Fourth Respondent
THALES TRAINING AND SIMULATION PTY LTD
Fifth Respondent
ON APPEAL FROM:
For File No : CACV 138 of 2005
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J ECKERT (DEPUTY PRESIDENT)
- MS J TOOHEY (SENIOR MEMBER)
BRIG A WARNER (SENIOR SESSIONAL MEMBER)
Citation : ADI LIMITED & ORS and COMMISSIONER FOR EQUAL OPPORTUNITY & ORS [2005] WASAT 259
File No : ET 31 of 2004
Catchwords:
Appeal - Anti-discrimination - Application for exemption from operation of s 37 and s 39 of the Equal Opportunity Act 1984 (WA) - Exemptions relating to nationality of employees, job applicants and contract workers - Discretion of the State Administrative Tribunal - Balancing of interests in determining rational basis for discriminatory conduct - Objects, scope and purpose of the Act
Legislation:
Anti-Discrimination Act 1977 (NSW), s 126
Anti-Discrimination Regulations 2004 (NSW), cl 5
Electoral Act 1907 (WA), s 17
Equal Opportunity Act 1984 (WA), s 3, s 4, s 36, s 37, s 39, s 50, s 51, s 52, s 135, s 137
Interpretation Act 1984 (WA), s 51(1)
Justices of the Peace Act 2004 (WA), s 8
State Administrative Tribunal Act 2004 (WA), s 105
(Page 3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr C P Shanahan SC
Second Appellant : Mr C P Shanahan SC
Third Appellant : Mr C P Shanahan SC
First Respondent : Mr A J Power
Second Respondent : Mr A J Power
Third Respondent : Mr A J Power
Fourth Respondent : Mr A J Power
Fifth Respondent : Mr A J Power
Solicitors:
First Appellant : Equal Opportunity Commission
Second Appellant : Equal Opportunity Commission
Third Appellant : Equal Opportunity Commission
First Respondent : Allens Arthur Robinson
Second Respondent : Allens Arthur Robinson
Third Respondent : Allens Arthur Robinson
Fourth Respondent : Allens Arthur Robinson
Fifth Respondent : Allens Arthur Robinson
Case(s) referred to in judgment(s):
ADI Ltd v Commissioner for Equal Opportunity [2005] WASAT 259
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Boeing Australia Holdings Pty Ltd [2003] QADT 21
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
(Page 4)
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Jupiter Holding Pty Ltd v Commissioner for Equal Opportunity [2005] WASAT 202
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Secretary to the Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Stevens v Fernwood Fitness Centres Pty Ltd [2001] VCAT 1869
(Page 5)
1 MARTIN CJ: The Commissioner for Equal Opportunity, the Trades and Labour Council of Western Australia, and Western Australians for Racial Equality Inc (the appellants) appeal from a decision of the State Administrative Tribunal (the Tribunal) in which the Tribunal granted a number of applicants, which I will collectively describe as the ADI Group of companies, an exemption from the operation of ss 37 and 39 of the Equal Opportunity Act 1984 (WA) (the Act), insofar as those sections relate to the nationality of employees, job applicants and contract workers, on terms and conditions specified in the orders made by the Tribunal. Amongst those terms is an order which restricts the exemption to conduct by the applicants for exemption only where the conduct is necessary to enable the applicant to undertake defence projects in compliance with the laws of the United States of America (the United States) and the applicant has taken all steps as are reasonably available to avoid the necessity of engaging in the conduct.
The Equal Opportunity Act
2 In order to set the context for the issues which arose in the proceedings before the Tribunal, and the propositions advanced by the appellants in this appeal, it is appropriate to refer to the provisions of the Act.
3 The preamble to the Act provides that it 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, or age, or involving sexual or racial harassment or, in certain cases, on gender history grounds.
4 The objects of the Act are specified by s 3 in the following terms:
The objects of this Act are -
(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 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;
(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;
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- (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.
5 The terms used in the Act are defined in s 4. The word 'race' is defined in the following terms:
'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
6 Parts of the Act deal with discrimination on differing grounds. For example Pt II of the Act deals with discrimination on the ground of sex, marital status or pregnancy, Pt IIA deals with discrimination on the ground of family responsibility or family status, Pt IV deals with discrimination on the ground of religious or political conviction, Pt IVB deals with discrimination on the ground of age, and so on.
7 Part III of the Act, which deals with the discrimination on the ground of race is relevant to this appeal. Section 36 of the Act, which falls within Pt III, defines racial discrimination for the purposes of the Act. Section 36(1) provides:
36. Racial discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of race if, on the ground of -
(a) the race of the aggrieved person;
(b) a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
(d) treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
- (e) segregates the aggrieved person from persons of a different race.
8 In the proceedings before the Tribunal the ADI group of companies sought exemption from the operations of ss 37 and 39 of the Act, which fall within Pt III. Those sections provide:
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;
(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;
(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;
(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.
…
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;
- (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;
(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.
9 Other provisions of Pt III deal with discrimination on the ground of race in various areas of endeavour other than employment, such as partnership, membership of professional or trade organisations, education, accommodation, and the provision of goods, services and facilities.
10 Division 4 of Pt III specifies exceptions to the conduct otherwise prohibited by the provisions of that Part. Those exceptions are expressed in the following terms:
50. Exception - genuine occupational qualification
Nothing in this Part applies to or in respect of any work or employment where that work or employment involves any one or more of the following -
(a) participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity;
(b) participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity;
(c) working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity; or
(d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.
51. Measures intended to achieve equality
Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is -
- (a) to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or
(b) to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits.
- 52. Exception - citizenship
This Part does not apply to or in respect of any act of an authority to which Part IX applies being an act performed pursuant to a Western Australian law that discriminates between Australian citizens and persons who are not Australian citizens.
11 The authorities to which Pt IX of the Act applies are defined by s 139. They include the Public Service of the State, State trading concerns, instrumentalities, agencies or any public statutory body established by or under a law of the State, and such authorities as may be declared by regulation to be authorities for the purposes of that Part.
12 Part VI of the Act specifies a number of general exceptions to the operation of the Act, applicable to discrimination on any of the grounds identified by the Act. The general exceptions include acts done under statutory authority, provisions in documents conferring charitable benefits, admission of persons as members of voluntary bodies, the provision of facilities or services to members of such bodies, the ordination or appointment of priests and ministers of religion, the employment of staff of an educational institution established for religious purposes, and the provision of housing accommodation for aged persons.
13 Section 135 of the Act provides that the Tribunal may, on application, grant to the applicant an exemption from the operation of a specified provision of a number of Parts of the Act, including Pt III. The section also provides that an exemption 'may be granted subject to such terms and conditions as are specified in the order'; 'may be expressed to apply in such circumstances or in relation to such activities, as are specified in the order'; and is not to be granted for a period exceeding five years. The section makes provision for the grant of a further exemption following the expiry of the exemption period. Section 137 provides that an act done in accordance with the provisions of an order of exemption is not rendered unlawful by reason of the provision from which exemption has been granted.
(Page 10)
The decision of the Tribunal
14 The Tribunal commenced its reasons for decision by referring to the terms of the application before it. It noted that the 'class of activities for which the exemption was sought was discrimination against employees, job applicants and contract workers, where such discrimination is required in order for the Applicant Companies to undertake certain defence projects in compliance with the laws of the United States': ADI Ltd v Commissioner for Equal Opportunity [2005] WASAT 259 (at [5]). The particular activities for which exemption was sought included demanding from existing and prospective employees details of their place of birth and citizenship, identifying the nationality of employees, restricting the provision of information to employees based on their nationality, rejecting applications from prospective employees based on nationality, and transferring employees from projects on the basis of change in nationality.
15 The Tribunal found that the ADI group of companies 'manufacture and provide a broad spectrum of technologies, services and systems both in the defence and commercial sectors, but primarily in the defence sector. They have numerous contracts directly with the Australian government through the Department of Defence and indirectly through other companies in both Australia and the United States of America' (at [16]).
16 Some of the ADI Group of companies had their origin in the accumulation and corporatisation of the assets of the Australian Department of Defence Production in 1989. In 1999 the relevant companies were transferred from public ownership and acquired by Transfield Holdings Ltd and Thomson-CSF. Thomson-CSF has now become Thales. Thales SA (France) is one of the world's largest systems and electronics groups and has its headquarters in France. Some of its operations in Australia are carried out through subsidiary companies which are amongst the ADI group of companies. One of those companies was found by the Tribunal to have 360 employees and to be 'involved in projects relating to sonar technology, especially for submarines and surface ships' (at [18]). Another was found by the Tribunal to employee 173 people, and to be engaged in the production of simulators for military and civilian aircraft, sea vessels and armoured vehicles (at [18]). That company has a Collins class submarine simulator situated at HMS Stirling in Western Australia for use by the Royal Australian Navy.
17 The Tribunal found that the ADI Group of companies 'is one of Australia's largest defence, engineering and systems contractors, by reference to employee numbers, revenue, and the number of contracts [the
(Page 11)
- ADI Group of companies] has with the Australian government' (at [20]). The Tribunal made specific findings with respect to the particular activities carried on by the ADI Group of companies in Western Australia. The Tribunal found that the ADI Group of Companies employs a total of 159 people in Western Australia, 26 of whom are dual nationals, and 14 of whom would have access to sensitive information provided by companies in the United States (at [23]). For reasons which it enunciated, the Tribunal found that if the exemptions sought were not granted, the ADI Group of companies would look to places other than Western Australia in which to conduct its major operations (at [24]).
18 The Tribunal also found that as a result of the decision of the Australian government, a large number of Australia's armaments are based on the use of United States technology. In order to obtain access to that technology, and therefore in order to perform its obligations under defence related contracts with the Australian government, the ADI Group of companies, or one or more of them, enters into agreements or obtains licences under the laws of the United States which make that technology available to it. Access to that technology is regulated by various laws of the United States, including the United States International Traffic in Arms Regulations (ITARs) and the United States Export Administration Regulations (EARs). The Tribunal found that those regulations prohibit persons who are dual nationals, or third country foreign nationals of some countries, from having access to the United States controlled technology (at [27]).
19 The agreements which must be entered into in order to obtain access to the United States controlled technology contain provisions which oblige the contractor to comply with relevant Unites States regulations. The Tribunal found that the ADI Group of companies was currently a party to 49 of those agreements affecting projects generating annual sales in excess of $400 million (at [28]). The Tribunal found that unless the ADI Group of companies was prepared to assume the obligation of complying with the relevant United States regulations, it would not be allowed access to the United States controlled technology, which is fundamental to its fulfilment of its defence contract obligations to the Australian Defence Force. Thus the Tribunal concluded (at [30]):
ADI is therefore party to agreements which oblige it to ensure that US defence related technology is not accessed by dual nationals or third country foreign nationals of certain countries. These terms require ADI to discriminate on the ground of nationality in the area of employment. This conduct potentially infringes s 37 and s 39 of the EO Act.
(Page 12)
20 The Tribunal also found that (at [36]):
Nationals of some specified countries are absolutely barred from accessing US controlled material. However, there is a discretion in the US Department of State to allow nationals of some countries to be included, depending on the nature of the technology and the nationality (or dual nationality) of the person involved. As ADI is a project-based company, employees and prospective employees need to disclose their nationality for each project. Obtaining approval for a particular nationality or a particular person to work on a project involving US controlled material does not necessarily mean that approval will be given for that nationality or that person on the next project.
21 The Tribunal accepted evidence to the effect that significant adverse consequences would flow to the ADI Group of companies if members of that group were to breach the United States regulations, including liability to substantial financial and criminal penalties, denial of access to United States controlled technology for up to three years, a prohibition by the United States government from participation in the provision of defence services where access to United States controlled technology is required, and the risk of losing future contracts (at [48]).
22 Noting that members of the ADI Group of companies had been given exemptions from equal opportunity legislation in New South Wales and Victoria in order to comply with its obligations under the agreements into which it had entered, providing access to US controlled technology, the Tribunal found that refusal of similar exemptions in Western Australia would not lead to a complete failure to supply under contracts held with the Australian government (at [127]). Rather, it concluded that the most likely consequence would be the closure of the ADI Group of companies' operations in Western Australia. The Tribunal expressed the view that it was not in the best interests of the Western Australian community for that to occur, or for there to be a significant risk of that occurring. The Tribunal concluded that if the exemptions sought were not granted, there would be 'broad economic consequences not just for the ADI Group of companies, but also for its employees in Western Australia and for the Western Australian economy; and that there would be consequences for Australia's defence capability' (at [132]). It specifically enunciated the particular aspects of the public interest which it concluded would be affected if the exemptions were refused in the following terms (at [162]):
(1) the potential loss of the production of defence equipment made in accordance with US controlled technology, from ADI and potentially from Western Australia and ultimately Australia;
(Page 13)
- (2) the significant prejudice to the national interest in particular with respect to defence capability if ADI could not comply fully with its contracts with the ADF;
(3) the adverse impact on employment in Western Australia if the exemption is not granted;
(4) the adverse effect or impact on the broader economy of Western Australia; and
(5) the adverse effect on tertiary sector funding if the exemption is not granted.
23 The Tribunal also concluded that the only way to properly control those consequences, to ensure a continued economic security and defence capacity at current levels would be to grant the exemptions sought (at [163]).
24 The Tribunal summarised the arguments advanced by the various parties which had appeared before it in its reasons for decision. A significant issue, and the substantive issue raised in this appeal, is the question of whether the Tribunal could properly take into account broader public interest considerations relating to the adverse impact upon the Western Australian economy and Australia's defence capability, which the Tribunal had found would flow from refusal of the exemptions, in order to justify the grant of the exemptions, when those public interest considerations were not related to issues of discrimination or equal opportunity. So, in that context, the Tribunal was required to determine the range of considerations which it could properly take into account in the exercise of its discretion to grant or refuse the exemption.
25 The Tribunal noted that the existence of the discretion is confirmed by s 51(1) of the Interpretation Act 1984 (WA) which provides:
Where a written law confers power upon a person to issue, grant, give or renew any licence, registration, lease, right, authority, approval, permit, or exemption, the person so empowered shall have a discretion either to issue, grant, give or renew or to refuse to issue, grant, give or renew such licence, registration, lease, right, authority, approval, permit, or exemption.
26 The Tribunal made the following observations in relation to the breadth of the discretion conferred upon it pursuant to s 135 of the Act (at [97]):
All State statutes have a context to which courts will look in order to determine the proper scope of the power. Therefore, no matter how unfettered a discretion might appear to be, it must always be exercised in
(Page 14)
- conformity with the Act's limits, which are usually implied as to subject matter, scope and purpose - see Aranson, Dyer and Groves 'Judicial Review of Administrative Action' 3rd ed Law Book Co, Sydney, 2004 at pages 88 - 90 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. See also s 18 of the Interpretation Act 1984 which provides that in the interpretation of a provision of a written law a construction that would promote the purpose or object underlying a written law shall be preferred to a construction that would not promote that purpose or object.
- That analysis of the discretion conferred upon the Tribunal is uncontroversial and, with respect, plainly correct.
27 The Tribunal also referred to extrinsic materials which the parties to the proceedings before it had tendered as an aid to the interpretation of the legislation. Amongst those materials was an extract from the Hansard Report of Debate in the Legislative Council when the Equal Opportunity Bill was in Committee. In the course of that debate the Hon I G Medcalf posed the rhetorical question (Western Australia, Parliamentary Debates, Legislative Council, 23 October 1984, 2746):
On what grounds may the Tribunal grant exemptions?
- He went on to observe:
[t]here do not seem to be any criteria to guide the tribunal. This puzzles me.
I am aware that by clause 136 the tribunal is required to publish its decisions in the Government Gazette and set out its reasons for making its decisions; but the tribunal does not have any specific grounds for granting an exemption relating to the major clauses which we have already discussed and accepted.
It is rather curious that we are giving the tribunal the power to grant exemptions without giving it any standards or grounds for the exemptions. It appears we are giving the tribunal and open go. I am rather puzzled, and I wonder if the Attorney General can explain what grounds the tribunal might be expected to use.
The honourable member is correct. Clause 135 is drawn in such a way as to provide the tribunal with an open discretion. There are no specified considerations which it is required to apply. That was done with a view to providing maximum flexibility.
(Page 15)
- The explanation for that comes down to the consideration that there is a huge range of situations which might potentially give rise to an application to the tribunal. There is also the relative novelty of this sort of legislation, despite the experience elsewhere to which I have referred earlier. This will put a great deal of pressure on the tribunal to act responsibly. No doubt it will be encouraged in that by the need for public advertisement and advice as to the nature of applications and the nature of reasons for decisions of the tribunal. This clause reflects a deliberate decision and is largely in line with the whole approach of this Bill which is to provide for maximum flexibility in a new area where many things can go wrong.
As the member will have noticed elsewhere in the Bill, repeated references are made to the ability, by regulation, to exempt certain acts. The criteria for those exemptions also are not specified, but naturally they would be expected to conform to the spirit of the Bill, read as a whole.
- The Attorney General went on to observe (at 2746):
I would not like it to be thought that the wide flexibility given to this tribunal is something which I would be inclined to recommend for all other tribunals. In general, it is desirable that the framework within which tribunals work be specified. The factors leading to the requirement for greater flexibility in this case are well understood and Mr Medcalf has referred to them. I do not think they need to be expanded upon. It goes without saying that whatever the tribunal does must be within the object and spirit of the Act and that will be observed with great interest.
It should be noted also, in explanation of the very wide flexibility here, as opposed to specified powers elsewhere, that what the tribunal in this clause is being authorised to do is to grant exemptions rather than to impose obligations on people.
If it were a matter of the tribunal's imposing new obligations, then, of course, we would be anxious to ensure that it was subject to guidelines in performing that sort of duty; but here it is freeing people from an obligation. That makes it easier to accept the wide flexibility which is proposed.
The power to grant exemptions in s 135 therefore constitutes a very broad discretion vested in the Tribunal - it is not weighed down with criteria to guide its exercise because its purpose is to give the Tribunal flexibility, to accommodate situations that could not be envisaged in 1984 when the EO Act passed through Parliament; for example, a situation such as this, where a former government asset has been privatised and now seeks exemption from the operation of parts of the Act to allow it to continue to fulfil its obligations to the Australian government. We cannot speculate whether Parliament would now decide that these sorts of activities should
(Page 16)
- be legislatively exempted or whether Parliament would decide that these sorts of matters should be subject to the full thrust of the EO Act; we do not know what Parliament's attitude would be today to such a broad discretionary power bereft of guidelines for its exercise. However, we do know that Parliament has chosen to leave that broad discretion in its form with this Tribunal, although it had the opportunity to restrict it when it passed the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004.
30 The Tribunal adopted the approach to the grant of exemptions under s 135 of the Act which it had enunciated in the earlier decision of Re Jupiter Holding Pty Ltd v Commissioner for Equal Opportunity [2005] WASAT 202. In that case the Tribunal had held (at [33]):
The general body of Australian law that has built up with respect to applications for exemption make it clear that the process that the Tribunal should go through is three-fold. First, the Tribunal should ask whether the conduct sought to be exempted falls broadly within the spirit of one of the express exception provisions in the Act; second, the Tribunal should consider the scheme of the objectives of the Act; and finally, the Tribunal should consider what interests might be pointed to in the application that would justify the granting of the exemption. We would add that these three steps should be tested against a framework of the 'public interest'.
31 The Tribunal then addressed the first question which it had enunciated in the framework which it had constructed for the purposes of assessing the exercise of its discretion under s 135 - namely, the question of whether the conduct sought to be exempted falls broadly within the spirit of one of the express exception provisions in the Act. The Tribunal noted (at [107]) that ADI had conceded that it could not invoke the spirit of any exception, and the Tribunal accepted that concession. For the reasons which will appear, I do not consider that concession should have been made or accepted by the Tribunal.
32 The Tribunal then turned to the second step in the three-step process which it had set for itself, and asked whether the exemption would further the objects of the Act. In that context, it referred to s 3 of the Act and observed (at [111]):
It is clear that in this case, the grant of the exemption would not fit within the objects of the EO Act. However, the issue for the Tribunal is whether despite this flaw, there is a public interest that should be taken into account in considering the application and what weight that public interest consideration should carry - in fact, whether that public interest overrides the exercise of the discretion to grant or refuse the application for exemption, particularly where the exemption would otherwise be outside of the scope and purpose of the EO Act. There has been movement in
(Page 17)
- other States of Australia towards an overriding public interest test and that has in fact been applied by this Tribunal, for example, in Jupiter Holdings Pty Ltd and Commissioner for Equal Opportunity (supra) at[47] and [48] the Tribunal looked at balancing the major commercial advantage available to the applicant for exemption in that case and whether that was diluted by a consideration of the public interest:
'There would be, in our view, major commercial advantage and it would be wrong for this Tribunal to exercise a very powerful function with the result of giving one player in a market a definite and clear commercial advantage over their competitors, particularly where there is no overriding public interest which would outweigh that competitive effect.
The Tribunal is not convinced that good reason exists to grant the exemption as the Tribunal is of the clear view that to do so would not enhance the objects of the Act and would result in a commercial advantage over Jupiter's competitors, the effect of neither of which, on these facts, is diluted by a consideration of the relevant public interest.'
- The reference to the 'overriding' of the exercise of the discretion or as a descriptor of a public interest test in this paragraph is curious. At first sight, it might be read as suggesting that the Tribunal had concluded that the grant of the exemption would be contrary to the furtherance of the objects and purposes of the Act, but that broader public interest considerations might 'override' the need to exercise the discretion consistently with the object, scope and purpose of the Act.
33 However, when that paragraph is read in the context of the Tribunal's reasons as a whole, and not 'minutely and finely with an eye keenly attuned to the perception of error' (see Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 187; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah[2001] HCA 22; (2001) 206 CLR 57 [23]) it is I think clear that the Tribunal is simply referring to the weighing of competing considerations for the purpose of evaluating the manner in which its discretion should be exercised.
34 At all events, it seems that in answering the second question which the Tribunal had posed for itself, the Tribunal concluded that although 'the grant of the exemption would not fit within the objects of the EO Act' (at [111]), there were nevertheless significant considerations which, in the public interest, supported the grant of exemption.
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35 That view essentially answered the third question which the Tribunal posed for itself - namely, 'what interests can be pointed to that would justify the granting of the exemption' assessed against 'a framework of the public interest' (at [125]).
36 The Tribunal concluded (at [131] - [132]):
The discretion vested in us is very broad and flexible although not entirely unfettered; this application for exemption does not fit squarely within the objects of the EO Act. But Parliament cannot have intended us to look at these applications completely in isolation with only the scope and purpose of the EO Act to guide us and to qualify an application. To be able to deal sensibly and realistically with this application, we must consider it in its broader context, looking at the ramifications not just on anti-discriminatory or discriminatory conduct, if it is granted. This is not to say that economic considerations should or could be paramount; they are not. Rather, we need to look to the total combined effect of the consequences if the exemption is or is not granted. We must consider all of the interests that can be pointed to that would justify the granting of the application, against a framework of the public interest (Jupiter Holdings Pty Ltd and Commissioner for Equal Opportunity(supra)).
In this case, that combined effect if the exemption is granted is to make unlawful discriminatory conduct lawful; there are broad economic consequences not just for ADI, but for its employees in Western Australia and for the Western Australian economy; and there will be consequences on Australia's defence capability. It is the combination of these ramifications - discriminatory, economic and defence, that lead us to the conclusion that the public or community interest in this application outweighs the negative discriminatory impact that granting the exemption would have.
- If these passages were to be read as embodying the proposition that the Tribunal could exercise the discretion conferred upon it by s 135 of the Act in a way which was inconsistent with or contrary to the scope and purpose of the Act, it would, as I will show, be contrary to trite principle and disclose an error of law. It would also be inconsistent with earlier passages in the Tribunal's reasons - see for example [97] set out at [26] above.
37 When this part of the Tribunal's reasons are read in their context, they seem to me to go no further than to record the Tribunal's view that, in exercising the discretion conferred upon it by s 135 of the Act, it was entitled to weigh broader considerations of the public interest, unrelated to issues of discrimination, against the fact that the grant of the exemption sought would legalise conduct that would otherwise be unlawful because it was discriminatory. For reasons which I will express below, that
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- approach is entirely consistent with, and conforms to the objects, scope and purpose of the Act.
The grounds of appeal
38 There were five grounds of appeal. Three (grounds 2, 3 and 4) were abandoned during the course of argument. Counsel for the appellants acknowledged that ground 5 simply applied the issues raised in ground 1 to contract workers, as opposed to employees. Accordingly, the central and indeed the only remaining issue ventilated in the appeal is that raised by ground 1.
39 Ground 1 alleges that the Tribunal erred in law in its construction and exercise of the discretion conferred upon it pursuant to s 135 of the Act. Five particulars are provided in support of the ground, although in oral argument they were conflated into one central proposition. That proposition was that because the discretion conferred upon the Tribunal by s 135 of the Act must be exercised in accordance with the objects, scope and purpose of the Act, the Tribunal erred by granting the exemptions sought because of the weight which it gave to the furtherance of public interest considerations which were unrelated to the avoidance of discrimination, being the public interest which the Tribunal had identified in the maintenance of employment within Western Australia, the maintenance of the Western Australian economy and Australia's defence capability. While the appellants did not go so far as to assert that the only considerations which could properly be taken into account by the Tribunal in the exercise of its discretion were those which came within the objects of the Act as defined by s 3, counsel did submit that the only considerations that could properly be taken into account by the Tribunal had to be within 'the spirit' of those objects, or 'the spirit' of the general exemptions to be found within the Act. In counsel's submission, public interest considerations which had 'no resonance' with either the defined objects of the Act or the general exemptions specified by the Act could either not be taken into account or, alternatively, at least could not be given such weight as to justify the grant of an exemption, of themselves. Counsel for the appellants accepted that if that proposition could not be made good, the appeal must fail.
40 The issue enunciated in this way is plainly a question of law, as it turns critically upon the proper construction and effect of s 135 of the Act, read in the context of the Act as a whole. Accordingly, there is no doubt that the appeal, as narrowed by the abandonment of three grounds, falls
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- within the jurisdiction given to this Court by s 105 of the State Administrative Tribunal Act 2004 (WA).
The grant of leave to appeal
41 All appeals to this Court from the Tribunal are subject to a grant of leave pursuant to s 105 of the State Administrative Tribunal Act. Leave will be granted if, in all the circumstances, such a grant is in the interests of justice (see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [18] per Buss JA). Ordinarily the determination of whether or not leave will be granted will be undertaken by reference to the guidelines articulated in Secretary to the Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 337 [16], which have been adopted by this Court in Paridis.
42 In this case the question of law which is identified is of importance, both generally and to the appellants and the respondents. Its resolution would likely determine the outcome of the proceedings before the Tribunal. There is a real or significant argument to be put in relation to that question of law and if error is established, to leave the error uncorrected would impose substantial injustice. For these reasons, I have no doubt that in this case leave to appeal should be granted.
The scope of the discretion to grant exemptions
43 The general legal principles governing the scope of the discretion to grant exemption from the operation of the Act conferred upon the Tribunal by s 135 of the Act are clear and uncontroversial. They were correctly stated by the Tribunal at [97] of its reasons, which I have set out at [26] above. At the risk of being trite, I will shortly re-state those principles by reference to authority.
44 In FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368, Mason J (as he then was) observed:
[T]he court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered. If Parliament intends to make such a discretion absolute and unfettered it should do so by a very plain expression of its intent. The general rule is that the extent of the discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment (Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at pp 757 - 758; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, at p 505).
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45 As Lord Reid famously observed in Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997 (at 1030):
Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.
46 More recently, French J observed that any statutory discretion is to be construed as being 'bounded by the subject matter, scope and purpose of the legislation under which it arises' (Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 [58]).
47 As the extracts from the Parliamentary Debates to which I have referred reveal, Parliament was specifically cognisant of these principles at the time it enacted s 135 of the Act. The debates reveal that it was the intention of the Parliament to confer upon the Tribunal a discretion which was constrained only by the objects, scope and purpose of the Act read as a whole. To that extent, the Parliamentary Debates serve to confirm the construction of s 135 which arises from well settled legal principles in any event.
48 Where the Parliament has conferred upon an administrative tribunal a discretion which is constrained only by the objects, scope and purpose of the Act conferring that discretion, the interposition by the Tribunal of a framework for the exercise of that discretion by reference to limited and particular questions, which are to be applied to every case is a course fraught with risk of error. Unless the questions posed pursuant to the self imposed framework embrace all considerations which could possibly fall within the objects, scope and purpose of the Act, by restricting itself to those questions, the Tribunal will be imposing upon itself a constraint to the exercise of the discretion which was not imposed by the Parliament and will, to that extent, be at risk of error.
49 The three questions posed by the Tribunal in Re Jupiter Holdings Pty Ltd, which were taken from the decision of the Equal Opportunity Tribunal in Victoria in Stevens v Fernwood Fitness Centres Pty Ltd [2001] VCAT 1869 do not necessarily extend to and embrace all considerations which could fall within the objects, scope and purpose of the Act in each and every case. That proposition can be made good by reference to cl 5 of the Anti-Discrimination Regulations 2004 (NSW) (the NSW Regulations) made under the Anti-Discrimination Act 1977 (NSW) (the NSW Act), which specifies that the matters to be considered when
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- exercising the power of exemption conferred by s 126 of the NSW Act are as follows:
(a) whether the proposed exemption is appropriate or reasonable,
(b) whether the proposed exemption is necessary,
(c) whether there are any non-discriminatory ways of achieving the objects or purposes for which the proposed exemption is sought,
(d) whether the proponent of the proposed exemption has taken reasonable steps, or is able to take any reasonable steps, to avoid or reduce the adverse effect of a particular act or action before seeking the exemption,
(e) the public, business, social or other community impact of the granting of the proposed exemption,
(f) any conditions or limitations to be contained in the proposed exemption.
51 The taxonomy of relevant considerations specified in the NSW Regulations identifies considerations which plainly fall within the objects, scope and purpose of the Western Australian Act, but which would not necessarily arise for specific consideration when answering the three questions posed by the Tribunal in this case.
52 The same point can be made by reference to a different taxonomy of relevant considerations specified by President Walter Sofronoff QC, sitting as the Anti-Discrimination Tribunal of Queensland, in Boeing Australia Holdings Pty Ltd [2003] QADT 21, where he observed:
For an exemption to be granted I must be satisfied that it would be appropriate and reasonable to do so. Other matters that may be relevant in considering an exemption application include:
(a) whether the exemption is necessary;
(b) whether there are any 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 persons or bodies other than the applicants support the application. [12.2]
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53 Again, some of these considerations are plainly relevant to the objects, scope and purpose of the Act but would not necessarily specifically arise for consideration if the discretion is to be exercised only by reference to the three questions posed by the Tribunal in Re Jupiter Holdings Pty Ltd and in this case.
54 For these reasons, the adoption by the Tribunal of the course which it followed in Re Jupiter Holdings Pty Ltd, and in this case, is a course fraught with risk of error. The risk of error to which the Tribunal is exposed is the risk of excluding from consideration matters which are relevant to the exercise of the discretion because they fall within the objects, scope and purpose of the Act, but not within the three questions enunciated by the Tribunal. But that is not the error which the appellant alleges the Tribunal made in this case. Rather, the allegation in this case is that the Tribunal erred by taking into account, or alternatively, giving determinative weight to public interest considerations which did not further the objects, scope or purpose of the Act.
The objects, scope and purpose of the Act
55 The authorities to which I have referred establish that the discretion conferred upon the Tribunal by s 135 of the Act is to be constrained only by the objects, scope and purpose of the Act and that those matters are to be ascertained from a construction of the Act as a whole. It follows, and the appellants accept, that it could not be submitted that the only matters properly taken into account by the Tribunal when exercising the discretion to grant exemption are those matters specified by s 3 of the Act. While those matters will, of course, be relevant to the ascertainment of the objects, scope and purpose of the Act, it is the Act as a whole which must be considered.
56 The structure of the Act is to proscribe particular discriminatory conduct by reference to the ground upon which that conduct occurs. So, the ambit of the prohibitions upon conduct which is discriminatory on the ground of sex, marital status or pregnancy is not identical to the ambit of the conduct which is prohibited because it is discriminatory on the ground of religious or political conviction, which is in turn not identical with the ambit of the conduct which is prohibited because it is discriminatory on the ground of race, although there are of course significant areas of overlap in respect of the conduct which is prohibited because it is discriminatory on any of these grounds.
57 After separately identifying the ambit of the conduct which is prohibited because it is discriminatory on each of the grounds covered by
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- the Act, exceptions which are specifically referrable to conduct which is prohibited because it is discriminatory on that particular ground are provided in each Part of the Act. Generally speaking, Div 4 of each relevant Part of the Act provides the scope of exceptions which are particular to the conduct which is otherwise prohibited within that Part. In addition, Pt VI of the Act provides general exceptions to the prohibition upon conduct which is discriminatory on any and all of the grounds identified by the Act, and s 135 provides a further opportunity for exemption from the prohibitions otherwise created by the Act which, as I have observed, is within the discretion of the Tribunal unconstrained by anything other than the objects, scope and purpose of the Act.
58 So, in summary, there are a range of prohibitions specified by reference to the ground of discrimination, qualified by exceptions which are specifically referrable only to discrimination on that particular ground. There are also general exceptions which apply irrespective of the ground of discrimination. If none of the specific or general exceptions apply, the Tribunal is given a general power of exemption, unconstrained by anything other than the objects, scope and purpose of the Act and the temporal limitation upon the operation of the exemption.
59 In this context, the legislative object to be served by the conferral of a general power of exemption upon the Tribunal is, I think, clear. The Act does not prohibit all discriminatory conduct. Rather, the ambit of the conduct prohibited depends upon the ground of discrimination. Nor does the Act prohibit all conduct of a particular kind because it is discriminatory on a particular ground. Rather, the Act provides both specific and general exceptions to its prohibitions. The legislature has thereby recognised that in a number of circumstances, which it has identified both specifically by reference to the particular ground upon which the discrimination is practiced, and generally, discriminatory conduct can be justified and should not be prohibited. 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.
60 This approach to the construction of the scope of the discretion conferred by s 135 of the Act is, I think, apparent from the structure of the Act viewed as a whole. It is reinforced by the extracts from the Parliamentary Debates to which I have referred, and indeed was expressly enunciated by the Attorney General in the course of those debates. His references, in the course of those debates, to the Tribunal
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- having 'maximum flexibility' 'within the objects and spirit of the Act' accord with the view which I would in any event draw from the structure of the Act to which I referred.
61 While these considerations serve to emphasis the range and breadth of matters properly taken into account by the Tribunal in the exercise of its discretion to grant exemptions, they do not of themselves determine the question of whether the particular considerations which were considered by the Tribunal in this case to be determinative of the application for exemption were properly considered as being within the objects, scope and purpose of the Act. In order to answer that question it is necessary to direct attention to the specific and general grounds of exception applicable to conduct which the Act prohibits because it is discriminatory on the ground of race (being, in this case, that aspect of race which is nationality).
62 As I have observed, the specific exceptions to Pt III are to be found in Div 4 of that Part, being ss 50, 51 and 52, which I have set out above at [10].
63 Section 50 excepts from the operation of the Act, discrimination on the ground of race which is undertaken in respect of work or employment involving circumstances in which the use of a person of a particular ethnic background or race is necessary, because it is in a dramatic performance, or other entertainment in which authenticity is required, or for similar reasons in connection with the production of a work of art, or in relation to the provision of food or drink. So, the legislature has recognised that in a play or film concerning Aboriginal persons (for example), it is justifiable for the producers to hire persons of the Aboriginal race. The legislature has also recognised that, for example, the owners of a Chinese restaurant may be justified in employing only chefs or waiters who are of Chinese origin.
64 Section 50 also excepts conduct which is discriminatory on the ground of race in connection with work or employment if it is undertaken for the purpose of promoting the welfare of persons of a particular race because services can most effectively be provided by a person of the same race. So, to take an example, the legislature has recognised that the Department of the Attorney General would be justified in discriminating on the grounds of race in relation to the employment of Aboriginal Liaison Officers to be attached to courts because the services of those officers can most effectively be provided by persons of Aboriginal origin.
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65 Section 51 excepts conduct which is discriminatory on the ground of race from the prohibitions of the Act if it is undertaken for purposes which are often described as 'positive discrimination' - that is to say, for the purpose of providing equality of opportunity or meeting special needs.
66 Section 52 excepts conduct which is discriminatory on the ground of race from the prohibitions created by the Act if it is the conduct of, generally speaking, a public authority taken pursuant to a law of the State which discriminates between persons who are Australian citizens and persons who are not Australian citizens. There are of course a number of such laws, including laws relating to fundamental rights, such as the right to vote, (Electoral Act 1907, s 17) and laws relating to qualification for office, such as the office of Justice of the Peace (Justices of the Peace Act 2004, s 8). While nationality is not necessarily coextensive with citizenship, in many cases nationality will be determined by citizenship. So, s 52 of the Act specifically recognises that conduct which is discriminatory on the ground of nationality can be justified by circumstances specifically recognised under State law. Those circumstances are not constrained by considerations pertinent to discriminatory conduct, but are extraneous to it. For example, the reason persons who are not Australian citizens are not entitled or required to vote is because the legislature considers that important right should be restricted to those who owe allegiance to this country by reason of their citizenship. That has nothing to do with positive discrimination, or with any of the objects specified in s 3 of the Act. The same observation can be made of those parts of s 50 of the Act which except conduct which discriminates on the ground of race because the circumstances of employment compel racial authenticity.
67 So, when regard is had to Div 4 of Pt III of the Act, it can be seen that the legislature has excepted from the operation of that Part not only conduct which serves the interests of what is often described as 'positive discrimination' but also conduct which, although discriminatory, can be justified by reference to a variety of other purposes or interests other than the specific objects identified in s 3 of the Act or the object of reducing discriminatory conduct and which are unrelated to those objects.
68 A similar observation can be made in relation to the range of conduct excepted from the operation of the Act under Pt VI of the Act. Generally speaking, the conduct which is excepted by reason of the operation of that Part is not conduct which furthers the specific objects identified by s 3 of the Act or the general object of reducing a discriminatory conduct, but rather is conduct which, for a variety of reasons unrelated to those
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- objectives, which the legislature considers justify the conduct, notwithstanding that it is discriminatory on one or more of the grounds identified by the Act.
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.
70 It follows that when the Tribunal comes to consider an application for exemption from the operation of the Act, it can and should take into account the fact that the legislature has recognised that there are some circumstances in which discriminatory conduct can be justified by reference to considerations which are extraneous to the anti-discriminatory objects of the Act, and that it has conferred upon the Tribunal the power to identify circumstances beyond those specified in the Act, in which conduct which is otherwise discriminatory should nevertheless be lawful.
71 This is why I have expressed the view that the concession that the applicants could not 'invoke the spirit' of any of the exceptions in the Act was not properly made or accepted by the Tribunal. In my view, when regard is had to the structure of the Act, and the particular exemption provisions to which I have referred, it is clear that the 'spirit' of those exceptions extends to a broad range of considerations which extend beyond the objects of the Act relating to the discouragement of discrimination. And there is, in my view, a clear parallel between the specific exception provided by s 52 of the Act, and the exemptions sought in this case. At least some of the conduct legitimised by virtue of s 52 of the Act will be conduct undertaken because of a recognition that some rights or functions should only be performed by those who owe allegiance to a Australia as a result of their nationality. The applications for exemption in this case have been made because one of Australia's allies, the United States, takes the view that persons who owe allegiance to a country other than Australia or the United States should not be permitted to access confidential information bearing upon the defence capabilities of Australia and our allies. It follows, in my view, that the exemptions sought in this case are entirely consistent with 'the spirit' of the exception provided by s 52 of the Act. However, it will be apparent from the views I have already expressed that, in my view, it is not necessary for such a
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- particular connection to be identified before the grant of an exemption can be justified.
72 In summary, in my opinion when exercising the discretion conferred upon it by s 135 of the Act, it is consistent with the objects, scope and purpose of the Act, for the Tribunal to take into account any considerations which it considers would justify the commission of conduct which would otherwise be unlawful under the Act. So, provided 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. Often the interests properly considered by the Tribunal in that context will be public interests, but they need not be so. As can be seen, for example, from s 50 of the Act, private interests (such as the interests of the owner of the Chinese restaurant in the example to which I have referred) have been recognised by the legislature as providing a sufficient justification for the permission of conduct which would otherwise be unlawful.
73 The view to which I have come is not dissimilar to the view expressed by Morris J, sitting as the President of the Victorian Civil & Administrative Tribunal in Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532. In that case, referring to the power of exemption conferred upon the Victorian Tribunal under similar legislation, his Honour observed (at [30]):
Rather it would seem that Parliament's intent was that an exemption may be granted by the Tribunal where, in the circumstances, it is necessary or desirable to avoid an unreasonable outcome.
74 While I would not necessarily express the discretion in those particular terms, and in particular would not place an onus upon an applicant for exemption to demonstrate that the outcome would be 'unreasonable' if no exemption was granted, if, as I would infer, his Honour 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.
75 Although the Tribunal did not enunciate its view of the discretion conferred by s 135 of the Act in the way in which I have enunciated my own view, the only question which arises in this appeal is whether the Tribunal erred by taking into account and giving determinative weight to the particular interests which the Tribunal identified as justifying the exemptions sought. For the reasons which I have set out above, in my
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- view the Tribunal was plainly entitled to take account of those considerations, and to give them determinative weight. As, in arriving at the latter conclusion, the Tribunal has clearly weighed and balanced those interests against the detriments which flow from discriminatory conduct, in my view the Tribunal has undertaken the task required of it under s 135 of the Act and this appeal should be dismissed.
76 WHEELER JA: I agree with the Chief Justice.
77 PULLIN JA: I agree with the Chief Justice.
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