JET AVIATION AUSTRALIA PTY LTD - [2024] WASAT 122

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   JET AVIATION AUSTRALIA PTY LTD [2024] WASAT 122
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   19 NOVEMBER 2024
FILE NO/S:   EOA 25 of 2024
BETWEEN:   JET AVIATION AUSTRALIA PTY LTD
Applicant

Catchwords:

Equal Opportunity Act 1984 (WA) (EO Act) - Exemption application - Race - Nationality - Application for exemption under s 135 of the EO Act from the operation of s 37, s 39 and s 49 of the EO Act - Applicant contracted to provide aircraft support to the Australian Department of Defence - Strict contractual condition that the Applicant will comply with United States import and export control laws and regulations which prohibit and/or restrict persons of certain nationalities accessing controlled defence technology, data and products - Applicant requires exemption so as to comply with its contractual obligations and so the Applicant and its Western Australian employees do not contravene United States Law - International Traffic in Arms Regulations (ITAR) - Export Administration Regulations (EAR) - Whether exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances - Exemption granted for 5 years - Terms and conditions imposed on grant of exemption

Legislation:

Corporations Act 2001 (Cth)
Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s 50, s 50(d), s 51, s 52, s 68, s 69, s 70, s 71, s 72, s 73, s 74, s 135, s 135(1), s 135(2), s 135(3), s 135(6), s 136(1), s 136(2), s 137, Pt VI
Equal Opportunity Regulations 1986 (WA), reg 24
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application for exemption granted

Category: B

Representation:

Counsel:

Applicant

N/A

Solicitors:

Applicant

Kingston Reid

Cases referred to in decision:

ASC Pty Ltd [2024] WASAT 39
BAE Systems and Commissioner for Equal Opportunity [2019] WASAT 79
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Cobham Aviation Services Australia Pty Ltd and Ors [2023] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111
Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266
Thales Australia Ltd and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 11 June 2024 Jet Aviation Australia Pty Ltd (Jet Aviation) made an application to this Tribunal under s 135(1) of the Equal Opportunity Act1984 (WA) (EO Act) seeking an order granting an exemption from the operation of s 37, s 39 and s 49 of the EO Act.
Jet Aviation has contracts to supply aircraft support to the Australian Department of Defence (Defence Department) and is reliant on military engineering technology, parts, and products imported and transferred from the United States of America (US) from its parent company, General Dynamics Corporation (General Dynamics), and from other suppliers in the US.
It is a strict condition of Jet Aviation's contracts with the Commonwealth of Australia that it complies with US International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) (collectively the US Export Regulations). The ITAR controls access to US ITAR-controlled hardware, software, technical data, and defence services (collectively, ITAR-controlled Items). The EAR, together with the ITAR, places strict controls on the export, re-export, and re-transfer of US-military and dual use aircraft technology, data, and products (EAR-controlled Items).
The aircraft parts, technology and support services provided by Jet Aviation to the Defence Department contain ITAR-controlled Items and EAR-controlled Items that are regulated by the US Export Regulations.
The effect of the US Export Regulations is to prohibit or restrict citizens, dual citizens, and permanent residents of proscribed countries from having access to ITAR-controlled Items and EAR-controlled Items (which, for convenience, I will collectively refer to as Controlled Items), with the penalties for unlawful access including fines and imprisonment.
However, s 37 and s 39 of the EO Act make it unlawful to refuse to employ job applicants, employees, and contract workers or to prevent an otherwise qualified employee or contract worker from undertaking certain work on the ground of their race, ethnic or national origin or nationality.
Further, s 49 makes it unlawful to require job applicants, employees, and contract workers to provide information about their race, ethnic or national origin or nationality.
To comply with its contractual obligations with the Defence Department and with the US Export Regulations, Jet Aviation may need to undertake activities which include to: refuse to employ or contract with people based on their race or national or ethnic origin; ask about their race or nationality; and/or prevent an otherwise qualified contractor from undertaking certain work based upon their race or their national or ethnic origin (Proposed Exempted Activities). Those acts would contravene s 37, s 39 and s 49 of the EO Act.
Therefore, Jet Aviation has applied for the s 135 exemption. Section 135 of the EO Act gives the Tribunal a broad discretion, subject to the objects of the EO Act, to grant an exemption from the operation of specified provisions of specified parts of the EO Act.
For the reasons set out below, I have decided to exercise discretion to grant Jet Aviation an exemption from the operation of s 37, s 39 and s 49 of the EO Act for a period of five years, subject to conditions. The orders, and my reasons for making them, are set out below.

The issues

The issues I must determine in this application are:
(1)Whether I should grant the exemption sought by Jet Aviation.
(2)If I decide to grant the exemption, whether it should be subject to any conditions or limitations.
(3)If I decide to grant the exemption, the length of time it should be granted for.
In deciding the first issue, whether I should grant the exemption, I have had regard to several considerations which I explain below.

Procedural overview

On 25 June 2024, the President, Justice Glancy, made programming orders at a directions hearing.
Pursuant to reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity (Commissioner) is a party to an application unless the Commissioner lodges an affidavit with the Tribunal setting out the reasons why the Commissioner does not wish to be a party to the application. At the directions hearing on 25 June 2024, President Glancy ordered that he do so by 5 July 2024 if that was his position.
Consequently, on 3 July 2024, the Commissioner lodged an affidavit confirming that he did not support or oppose the application and confirming that he did not wish to remain as a party to these proceedings.
Section 135(3) provides that the Tribunal 'shall cause notice of an application for an exemption … to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct'.
Accordingly, President Glancy also ordered that Jet Aviation place an advertisement of the application in the Public Notices section of the The West Australian newspaper by no later than 6 August 2024, so that if any party wished to be a party to the application for exemption, they could notify the Tribunal in writing.
The President also made orders that:
(a)by 9 July 2024, Jet Aviation was to send a notice of the application to each of its Western Australian employees and contractors and place the notice on its website up to and including 6 August 2024.
(b)by 20 August 2024, Jet Aviation must provide the Tribunal with any submissions or comments it had received in response to the application and the notice of the application.
On 13 August 2024, I ordered that Jet Aviation was to file in the Tribunal an affidavit to confirm that it has complied with the advertising and notice requirements in the orders made by President Glancy.
On 20 August 2024, Ms Sarah Abbass, Assistant General Counsel for Jet Aviation lodged an affidavit with annexures to confirm that the orders made by President Glancy concerning the advertising and notices had been complied with. Ms Abbass further confirmed that Jet Aviation had not received any questions, concerns, enquiries, or submissions in response.
Similarly, the Tribunal did not receive any applications for interested persons to be joined as parties and did not otherwise receive any submissions or comments.
I am therefore satisfied that persons who may have an interest in the proceeding have had an opportunity to be joined, or to make submissions or comments.
Section 136(1) provides that no later than one month after it has made a s 135 decision, the Tribunal must publish the decision and its reasons, including its findings of fact material to the decision, and a summary of the evidence on which those findings were based. A failure to do so does not, however, affect the validity of the decision: s 136(2) EO Act.
I held a further directions hearing on 8 November 2024 to clarify two matters.
The first was that the original application requested an exemption from s 68 of the EO Act. Section 68 makes it unlawful to indicate an intention in an advertisement to do an act that the EO Act makes unlawful. However, s 68 is not in a part of the EO Act that s 135(1) applies to, and therefore an exemption cannot be granted with respect to s 68. The representative for Jet Aviation, Mr Topp, confirmed that Jet Aviation was not seeking to be exempted from s 68 of the EO Act. Accordingly, I ordered that Jet Aviation had leave to amend the application, and that the application was amended to remove reference to s 68 of the EO Act.
The second matter I sought clarification about was the length of the exemption that Jet Aviation was seeking, and specifically, why a term of five years had been sought, and any evidence in support of why a five year term was required. I ordered that by 15 November 2024, the applicant has leave to file further evidence and submissions to address the length of time of the exemption they were seeking.
After the directions hearing, through my case manager, I also requested copies of the exemptions granted to Jet Aviation in other Australian jurisdictions.

Determination on the documents

On 21 August 2024, I ordered that, subject to any other order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). I was satisfied that it was appropriate to do so, and Jet Aviation also agreed that it was appropriate to determine the application on the documents.
The documents I have had regard to are as follows:
(a)The application to the Tribunal made by Jet Aviation on 11 June 2024 with 'Reasons for Application' and 'Annexure A Draft Proposed Exemption';
(b)Airbus Consent Agreement dated 29 January 2020;
(c)Affidavit of Craig Purry, Vice President of Jet Aviation Defence APAC, dated 31 May 2024 (Purry Affidavit);
(d)Australian Securities & Investments Commission Current Company Extract for Jet Aviation Australia Pty Ltd (ASIC Search);
(e)Certificate of Good Standing for 'General Dynamics Corporation' certified by Jeffrey W Bullock, Secretary of State, Delaware (GS Certificate);
(f)Jet Aviation's 'APAC Region Diversity, Equality & Inclusion Policy' with an issue date of March 2021;
(g)Proposed Charging Letter, undated, with the subject line 'Re: Alleged Violations of the Arms Export Control Act and the International Traffic in Arms Regulations by FLIR Systems, Inc;
(h)Consent Agreement dated 22 April 2018;
(i)Written submission of the Applicant dated 20 August 2024;
(j)Affidavit of John Craig Byrne, Commissioner for Equal Opportunity dated 3 July 2024;
(k)Affidavit of Sarah Abbass dated 20 August 2024, with attachments SA-1 to SA-3;
(l)Written submissions of the Applicant filed on 15 November 2024; and
(m)Affidavit of Sarah Abbass dated 14 November 2024, filed on 15 November 2024, with copies of the exemptions granted to Jet Aviation in Victoria, New South Wales, Queensland and South Australia in attachment SA-4 (Second Abbass Affidavit).

Legislative Framework

Objects

The objects of the EO Act are set out in s 3, which provides:
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, 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.

Unlawful discrimination on the ground of race

In this application, Jet Aviation has applied for an exemption from the operation of s 37, s 39 and s 49 of the EO Act which concern unlawful discrimination on the ground of 'race'.
'Race' is defined in s 4 of the EO Act to include national origin or nationality. The definition of 'race' is 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;
Section 37 of the EO Act makes it unlawful to discriminate against job applicants and employees on the ground of race. The relevant parts of s 37 of the EO Act provide:
(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.
…
Section 39 makes it unlawful to discriminate against contract workers on the ground of race. It provides:
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 makes it unlawful to require a person to provide information about their race. It provides:
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.

Specific exceptions

Despite the objects of the EO Act, when enacting the EO Act, the legislature included exceptions in recognition that in some circumstances discrimination may be justified. For example, s 50, s 51 and s 52 of the EO Act provide for specific exceptions whereby conduct would not be unlawful discrimination based on race.
Section 50, titled 'Genuine occupational qualifications' allows discrimination in work or employment in circumstances including where race is necessary for the performance of that work. It provides:
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; or
(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; or
(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.

Section 50(d), as well as s 51 of the EO Act provide for 'positive discrimination' to promote the welfare or equality of persons of a particular race. Section 51, titled, 'Measures intended to achieve equality' provides:
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.'
Section 52 of the EO Act, titled 'Citizenship', provides an exception where a public authority specified in Part IX of the EO Act can discriminate between Australian citizens and persons who are not Australian citizens in accordance with a law of the State. It provides:
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.
By way of illustration, in Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (ADI), Martin CJ, gave the example of s 17 of the Electoral Act 1907 (WA) which provides that a person must be an Australian citizen to be enrolled to vote in a state election, and explained that, 'the legislature considers that important right should be restricted to those who owe allegiance to this country by reason of their citizenship': at [66].

General exceptions

There are also general exceptions in Part VI of the EO Act. The general exceptions are so expressed because they are applicable to discrimination on any of the grounds in the EO Act. They include:
(a)acts done to comply with an order of the Tribunal or a court: s 69;
(b)acts that would allow charitable benefits to be conferred on a class of person: s 70;
(c)the admission of persons as members of a voluntary body or the provision of benefits, facilities or services to members of the body: s 71;
(d)the acts or practices of religious bodies including the ordination or appointment of persons as priests or ministers: s 72;
(e)the establishment of educational instructions for religious purposes: s 73; and
(f)the provision of housing accommodation for aged persons: s 74.

Tribunal may grant an exemption

Section 135(1) of the EO Act provides that an application can be made to grant a person an exemption from certain provisions. It provides:
(1)The Tribunal may, on application by a person, by order, grant to the person an exemption from the operation of a specified provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC.
A 'person' is defined in s 5 of the Interpretation Act 1984 (WA) to include a company.
If a person has already been granted an exemption, they can apply for a further exemption under s 135(2) of the EO Act which provides:
(2)The Tribunal may, on application by a person to whom an exemption from a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC has been granted under subsection (1), by order, grant to the person a further exemption from the operation of that provision.
Section 137 of the EO Act describes that the effect of an exemption order is that an act that would otherwise be unlawful under the relevant Parts of the EO Act will not be unlawful. It provides:
Nothing in Parts II, IIAA, IIA, IIB, III, IV, IVA, IVB and IVC renders it unlawful for a person who has been granted an exemption from a provision of one of those Parts, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the order by which the exemption was granted.
The EO Act also provides for the duration and terms upon which an exemption can be granted in s 135(6). It provides:
(6)An exemption or further exemption —
(a)may be granted subject to such terms and conditions as are specified in the order; and
(b)may be varied either on the application of the person to whom the exemption is granted or at the instance of the Tribunal; and
(c)may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the order; and
(d)shall be granted for a period specified in the order not exceeding 5 years.

The Scope of the Tribunal's discretion to grant an exemption

In ADI, Martin CJ, with whom Wheeler JA and Pullin JA agreed, outlined the 'clear and uncontroversial' general legal principles governing the scope of the Tribunal's discretion to grant an exemption.
Firstly, a discretion that affects the rights of persons will not be construed by the courts as 'absolute and unfettered' unless Parliament has used plain words to express that intent (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (FAI) at 368, per Mason J cited in ADI at [44]). Thus, although the scope of the Tribunal's discretion in s 135 is broad, it is nevertheless constrained.
Secondly, the scope of the Tribunal's discretion is constrained by the policy objectives, and the objects, scope and purpose of the Act (FAI at 368, per Mason J Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997 at 1030; and Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 at [58] cited in ADI at [44] - [46]; ADI at [47] - [48] per Martin CJ). In other words, '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' (ADI, at [44] - [47] per Martin CJ).
The 'objects, scope and purpose' of the EO Act and the discretion of the Tribunal is 'to be ascertained from a construction of the Act as a whole' (ADI, at [55]). As Martin CJ explained in ADI at [56], the EO Act is structured to prohibit certain types of discriminatory conduct by reference to specific grounds, and although there is significant overlap, the ambit of the conduct prohibited under different grounds is not identical. For example, the ambit of prohibitions on conduct that might be discriminatory on the ground of sex is not identical to the ambit of conduct prohibited because it is discriminatory on the ground of race. Martin CJ explained, at [58] - [59]:
58So, 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.
59In 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.
In summary, it is therefore necessary to identify the ambit of the conduct that is prohibited concerning the specific ground for which the exemption is sought. I have endeavoured to do this by outlining the provisions for which the exemption has been sought, namely s 37, s 39 and s 49, as well as the exceptions in s 50, s 51 and s 52 of the EO Act.
Thirdly, the Tribunal will need to undertake a balancing exercise when considering whether to grant an exemption. With reference to the decision of Morris J, sitting as the President of the Victorian Civil & Administrative Tribunal in Boeing Australia Holdings Pty Ltd (AntiDiscrimination Exemption) [2007] VCAT 532 (Boeing) in ADI, at [74], Martin CJ described the balancing exercise as '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 the discriminatory conduct'.
Fourth, the Tribunal is at risk of error if it constrains its discretion 'by reference to limited and particular questions, which are to be applied to every case' because to do so exposes the Tribunal to 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 … questions enunciated by the Tribunal' (ADI at [49] - [54]).
With that caveat in mind, I observe that in ASC Pty Ltd [2024] WASAT 39 (ASC), President Pritchard (as she then was) summarised some of the considerations that the Tribunal had applied in similar cases to that of ASC.
Although ASC concerned an application under s 135(2) for a further exemption from s 37, s 39 and s 49, the factual circumstances were like those in this application by Jet Aviation. This was because the applicant in ASC had contracted to maintain and provide training for the use of Collins Class Submarines for use in the Royal Australian Navy and was subject to the same US import and export control laws and regulations as Jet Aviation.
In ASC, President Pritchard observed, at [29]:
29In the exercise of a similar discretion under equal opportunity legislation applicable in other jurisdictions, a variety of considerations may be taken into account, in determining whether an exemption should be granted. These illustrate the variety of considerations which the Tribunal may take into account, in weighing up whether to grant an exemption under s 135 of the EO Act. Those considerations have included:
•whether the exemption sought is necessary;
•whether the proposed exemption is reasonable and necessary having regard to the reasons for which it is sought;
•whether there are non-discriminatory ways of achieving the purposes for which the exemption is sought;
•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;
•the public and private impacts of the grant of the proposed exemption;
•whether the exemption is in the community interest; and
•whether any other persons or bodies other than the applicants support the application.
(Footnote omitted)
Having regard to the facts and circumstances of this application, and the evidence before me, I am satisfied that the considerations identified by Pritchard J in ASC are relevant for me to consider in this application.

Factual findings

I make the following factual findings based on the Purry Affidavit (and its attachments), Second Abbass Affidavit (and its attachments), ASIC Search and GS Certificate.
Jet Aviation is a proprietary company limited by shares which is registered under the Corporations Act 2001 (Cth).
Jet Aviation has an Australian business number, and it is registered to do business in Australia.
Jet Aviation has 110 employees in Western Australia.
Jet Aviation is a subsidiary of a US company, General Dynamics Corporation, which is incorporated under the laws of Delaware.
Jet Aviation is principally engaged in the provision of aviation services, including supporting the Defence Department with engineering services, repair and maintenance services and providing logistics support to the Royal Australian Airforce Fleet.
Jet Aviation has entered into contracts with the Defence Department to provide these services. It has contracted with the Defence Department since January 2007. The current contracts Jet Aviation has with the Defence Department include contracts which end in: December 2026 with options to extend to December 2028; June 2027 with options to extend to 2042; July 2027 with options to extend to June 2031; and a contract which ends on 20 June 2025.
Jet Aviation obtains most of its aircraft parts, engineering knowhow and technical data from General Dynamics Corporation and other equipment manufacturers in the US. The aircraft parts, technology and support services obtained by Jet Aviation contain Controlled Items.
Those Controlled Items are regulated by the US Export Regulations.
The ITAR set out restrictions and prohibitions on persons of particular nationalities from having access to Controlled Items.
Section 126.1 of the ITAR contains a list of proscribed countries for which the US government has a policy of export denial.
Section 120.51 of the ITAR defines a 're-export' to include 'any release outside of the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency'.
Under the ITAR and EAR, these restrictions extend to access to Controlled Items by a 'Dual National' (who holds Australian citizenship and the citizenship of another country other than the US); or a 'Third Country National' (who holds nationality of a country or countries other than Australia or the US).
The US Export Regulations provide that US suppliers must obtain export approval from the US Department of State (specifically, the Directorate of Defense Trade Controls 'DDTC') or the US Department of Commerce (specifically the Bureau of Industry and Security 'BIS') before they can transfer Controlled Items to Jet Aviation.
Jet Aviation has entered into export agreements and licences to access Controlled Items from the US. There are approximately 35 currently in place across Jet Aviation.
Where Jet Aviation receives, accesses, or manages Controlled Items, it must ensure it has approval from DDTC or BIS in the form of an agreement or licence, and it must ensure that it complies with all conditions of the agreement or licence.
In granting export approval, the DDTC and BIS have placed conditions on these licenses and agreements.
The conditions include: the identification of the nationality/ citizenship and country of birth of all employees and contractors who will have access to Controlled Items; and restrictions and prohibitions on persons of particular nationalities (including persons who hold, or have held, Dual Nationality or Third Country Nationality of a proscribed country) having access to Controlled Items.
The export controls placed on Controlled Items are extraterritorial and apply to the re-export, retransfer, access to and sharing of Controlled Items inside Australia and from Australia.
Non-compliance with those controls will subject Jet Aviation to significant fines and penalties (which could include imprisonment for individual managers and employees). It may also lead to 'blacklisting' by the US government, which would mean that Jet Aviation would not be able to access Controlled Items.
Having an Australian Government-issued Security Clearance will, due to an exemption in s 126.18 ITAR, enable a person to access a Controlled Technology if it is 'unclassified', but the exemption does not apply to Controlled Items that are 'classified'. Jet Aviation requires access to classified and unclassified Controlled Items to fulfill its obligations under its contracts with the Defence Department.
To comply with the export authorisation or licence obligations set by the DDTC or BIS, Jet Aviation must ensure there is no authorised reexport or access to ITAR or EAR regulated Controlled Items.
To ensure this compliance, Jet Aviation must ask potential and current employees and contractors about their citizenship and permanent residency and may need to deny employment or transfer to a position whereby they would have access to Controlled Items.

Should the exemption be granted?

Is the exemption necessary?

Jet Aviation submitted that the exemption was necessary so that Jet Aviation could continue to carry out its business and comply with its contracts and United States law, without contravening the EO Act.
I agree that the exemption is necessary for this purpose.
There are no specific or general exceptions in the EO Act that Jet Aviation could rely upon instead of applying for the s 135 exemption.
Additionally, the exemption in s 126.18 of the ITAR only applies to unclassified Controlled Items where the person has an Australian Government-issued Security Clearance. Although Jet Aviation has submitted that it will rely on this exemption wherever possible, it requires access to both US classified and unclassified Controlled Items to fulfil its contracts with the Defence Department.
To comply with these contractual obligations and with US Export Regulations, Jet Aviation may need to engage in conduct that contravenes s 37, s 39 and s 49 the EO Act.
I agree that seeking the s 135 exemption is the only means by which Jet Aviation can continue to carry out its contractual obligations and comply with the US Export Regulations without engaging in prohibited discrimination. I find that the exemption is necessary.

Is the exemption reasonable and necessary having regard to the reasons for which it is sought?

Jet Aviation submitted that the exemption is reasonable and necessary considering the reasons why it is sought. Jet Aviation stated that it recognised the importance of protections from discrimination afforded under the EO Act. Jet Aviation acknowledged that but for the grant of the exemption, the Proposed Exempted Activities may amount to discrimination that the EO Act seeks to prohibit.
Jet Aviation submitted that if it did not have to comply with the US Export Regulations, it would not have applied for an exemption. That is why, Jet Aviation submits, it has sought to draft the requested exemption on terms that go no further than to achieve compliance with the US Export Regulations, and which cause the least interference with the protections granted by the EO Act while allowing Jet Aviation to operate its business.
I accept that Jet Aviation must comply with the US Export Regulations and that to obtain export approval Jet Aviation is bound to comply with the conditions placed on its export licences and agreements by the DDTC and BIS. I also accept that Jet Aviation is contractually bound to comply with the US Export Regulations in its contracts with the Defence Department, which may require it to discriminate. These factors suggest that the exemption sought is reasonable and necessary in the circumstances.
Thus, I find that the exemption is reasonable and necessary in the circumstances.

Are there non-discriminatory ways of achieving the purposes for which the exemption is sought?

As I explained above, there are no specific or general exceptions in the EO Act that would assist Jet Aviation.
A possible non-discriminatory means by which Jet Aviation could comply with both the US Export Regulations and comply with its contracts with the Defence Department, is the exemption in s 126.18 of the ITAR. As I have outlined above, Jet Aviation stated that it would try to rely on that exemption wherever possible but that it only applied to unclassified Controlled Items, and Jet Aviation needs access to both unclassified and classified Controlled Items to fulfill its obligations with the Defence Department. Thus, that exemption alone is insufficient.
In submissions, Jet Aviation also referred to recent proposals to amend the ITAR because of legislation passed in the US relating to the AUKUS (Australia, United Kingdom, United States) security partnership. However, it explained that those amendments were not proposed to affect the provision of the ITAR which prohibits the transfer of Controlled Items to persons who are citizens of proscribed countries.
In short, the exemption in s 126.18 of the ITAR is insufficient to assist Jet Aviation and it would not be able to fulfill its contractual obligations based on that exemption alone. Thus, whilst there is a non-discriminatory way of achieving the purpose of the exemption, it would only suffice in limited circumstances.

Is the exemption in the public interest?

Jet Aviation submitted that the interests served by the exemption justified the exemption being granted. It expressed those interests to include the security interests of Australia.
Jet Aviation further submitted that the primary benefit associated with the grant of the exemption is that it would support the government's defence capabilities and national security by enabling Jet Aviation to continue to provide aircraft support to the Commonwealth.
Indeed, Jet Aviation submitted that it would be detrimental to the public interest if the exemption was not granted. Jet Aviation submitted that it would prejudice the national interest with respect to defence capability if it could not fully comply with its contracts with the Defence Department. Jet Aviation stated that if it was not granted an exemption, it may potentially result in the loss of the production of defence equipment made in accordance with Controlled Items which would be detrimental to Australia's security interests.

I accept that Australia's defence capabilities are enhanced by having access to Controlled Items and that the loss of access to those technologies would be detrimental to Australia's national security interests.
Jet Aviation also referred to similar exemptions being granted in Western Australia including in Cobham Aviation Services Australia Pty Ltd and Ors [2023] WASAT 21 (Cobham); Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111; BAE Systems and Commissioner for Equal Opportunity [2019] WASAT 79; Thales Australia Ltd and Commissioner for Equal Opportunity [2012] WASAT 222; and Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266. I agree that the public interest is served by consistency and predictability in the granting of exemptions in similar circumstances, including for other companies that have had to comply with the US Export Regulations.
Jet Aviation also submitted that similar exemptions had been granted to it in other Australian states and that consistency and predictability in the granting of similar exemptions was in the national interest. I agree for the same reasons given in the preceding paragraph.
On balance, I find that the public interest favours the grant of the exemption.

The public and private impacts of the grant of the proposed exemption

Jet Aviation submitted that, as well as affecting its private commercial interests, if the exemption was not granted, it may detrimentally affect the economic interests of the Western Australians who depend on Jet Aviation's business for their livelihoods. It submitted that it may adversely impact employment in Western Australia and the broader economy if the exemption is not granted.
This submission is supported by the evidence. In respect of contracts affected by ITAR obligations, the wages Jet Aviation paid to its employees in 2023 was $6,500,000. In addition, the value of Jet Aviation's contracts with the Defence Department ranges from a $9 million AUD contract employing 45 staff to a $30 million AUD contract employing 145 staff. I am therefore satisfied that if the exemption is not granted, it may detrimentally affect the interests of Jet Aviation's employees and contractors and Jet Aviation's business. Given the value of the contracts, there is a possibility that a refusal to grant the exemption may have broader economic effects.
There is some overlap with this exemption and the previous public interest exemption I discussed immediately above. As I explained, there is a public interest in terms of Australia's national security and defence capability of having access to Controlled Items from the US.
I accept that if Jet Aviation is unable to comply with its contractual obligations with the Defence Department, or if it is subject to fines for breaches of the US Export Regulations, there may be a detrimental economic impact to the company's business, which may in turn affect the security of employment of Jet Aviation's 110 Western Australian employees.
However, the public and private advantages which would flow from the grant of exemption, must be balanced against the detriment which flows from the discriminatory conduct (Boeing, ADI). In this regard, the following remarks from Deputy President Glancy (now President Glancy) in Cobham, at [97], are relevant:
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 my view, President Glancy's comments in Cobham (where an exemption was sought in similar circumstances to this case) about the detriment which may occur from the grant of the exemption, are also true of the exemption sought by Jet Aviation. Accordingly, I find that those comments apply in this case.
On balance, I am persuaded that any detriment to individuals in being asked about their nationalities or excluded from certain work, is outweighed by the public and private advantages of granting the exemption. These include public interest considerations such as protecting and enhancing Australia's national security and economic interests including the interests of Jet Aviation's current employees.

Whether Jet Aviation has and will continue to take any reasonable steps to avoid or reduce the adverse effect of the discriminatory acts

Jet Aviation submitted that it has taken, and will continue to take, steps to mitigate the potential adverse effects of the exemption granted in Victoria, and that it proposes to take the same steps in Western Australia. I have a copy of the exemption granted in Victoria on 14 December 2023, but I do not have any evidence from Jet Aviation detailing the steps it has taken to comply with that exemption. Equally, Jet Aviation submits that it has been compliant with that exemption and there is no evidence before me to suggest they have not been compliant with it.
Jet Aviation submitted that it understands the exemptions are a serious matter and that they must be as narrow as possible. It has therefore proposed that the exemption would only apply to certain positions, specifically:
(a)Aircraft Maintenance Engineer/Technician
(b)Licensed Aircraft Maintenance Engineer/Technician
(c)Senior/Design Engineer
(d)Chief Design Engineer
(e)Operations/MRO [Maintenance, Repair and Operations] Manager
(f)Program Manager/General Manager
(g)Information Technology staff - some positions
Further, Jet Aviation stated that the exemption would not apply to the following positions:
(a)Human resources staff members
(b)Administration staff
(c)Executive assistants
(d)Marketing and media staff
(e)Finance and payroll staff
(f)Procurement/purchasing staff
(g)Contract administration staff
(h)Reception staff
(i)Cleaners, security and facilities staff
(j)Legal staff
(k)Information technology staff (except positions that require access to ITAR-controlled items).
Jet Aviation have also provided evidence (in the Purry Affidavit) about the data handling mitigations to limit the extent to which any discriminatory conduct may arise.
Specifically, Jet Aviation stated that nationality information provided during hiring processes will only be known to Human Resources staff involved in the process. If a staff member is onboarded, their nationality would only be disclosed to their line manager if their position is to work with Controlled Items.
Further, any information concerning nationality or citizenship obtained during a hiring process will be destroyed if the applicant is not hired. If a person is hired, their nationality or citizenship information will be protected so that it can only be accessed by project managers and the Human Resources hiring staff member.
When the staff member departs Jet Aviation, personal data relating to citizenship will be destroyed, subject to relevant employment laws (which may require data to be retained if there is a current industrial matter or termination appeal, or otherwise until any appeal period has expired).
Additionally, Jet Aviation has described measures it will take to ensure that the nationality of staff will not be visibly isolated or identified. Staff with access to Controlled Items will not be identifiable by any visible badges, access cards or other physical sign that specifies race or nationality. Access to designated areas for Controlled Items will be granted by the relevant project manager upon verifying that staff member's security clearance and nationality. Those records will only be accessible by the project manager.
Given that Jet Aviation has a defence security program, staff are used to access to information and areas being restricted for security reasons. Jet Aviation stated that its defence security program has a layered security approach where access is always dependent on a 'needto-know' and 'need-to-hold' basis. Project access is controlled, and so restrictions to access to information, as well as physical segregation of articles and data, would not be unusual or notable for Jet Aviation staff.
These measures would, in my view, constitute reasonable steps to mitigate the adverse effects of the proposed exemption.
Jet Aviation also submitted that the conditions it has proposed will minimise the impact of the exemption as far as is reasonably practicable. I agree, and I will return to these below.
Overall, I am satisfied that Jet Aviation has and will continue to take reasonable steps to avoid or reduce the adverse effect of the discriminatory acts.

Whether any other persons or bodies other than the applicants support the application

In the Commissioner's affidavit dated 3 July 2024, the Commissioner stated his opinion that 'the application is not intended to further the objects of the Act'.
Referring to ADI, the Commissioner stated that he did 'not support or oppose the application for exemption and express[ed] no view as to whether the public interest will be best served by granting the exemption'.
As I mentioned above, neither the Tribunal nor Jet Aviation received any submissions from persons other than Jet Aviation in support of, or in opposition to, the application for a s 135 exemption. The lack of any objections being received, lends some weight to the exemption being granted.

Balancing the considerations

In summary, the exemption is necessary for Jet Aviation to comply with its legal and contractual obligations with the Defence Department.
The exemption is also reasonable and necessary because it has only been sought to comply with those obligations and there are no specific or general exceptions that Jet Aviation could rely upon instead of seeking the exemption.
There are limited non-discriminatory ways of achieving the purposes of the exemption because s 126.18 of the ITAR is insufficient to assist Jet Aviation.
The exemption is in the public interest, and on balance, any public or private detriment, is outweighed by the advantages of granting the exemption.
Jet Aviation has also proposed reasonable steps to limit the persons that the exemption would need to apply to, and to minimise the detrimental impact of the exemption on staff and contractors, and to protect the privacy of the information collected.
The Commissioner neither supported, nor opposed the exemption. No submissions in support of the application for an exemption, nor any objecting to the grant of the exemption, were received from third parties.
On balance, I find that these considerations support the grant of the exemption.

Should the exemption be subject to conditions or limitations?

The proposed exemption sought by Jet Aviation contains conditions in paragraphs 2 and 3 which aim to limit the scope of the exemption. The exemption is set out in full in Annexure A to these reasons.
By way of summary, the conditions to the exemption include that the exemption will only apply to conduct by Jet Aviation which is necessary to perform contractual obligations requiring access to Controlled Items (that is, where the contractual obligations require access to ITAR and EAR controlled items), and where Jet Aviation has taken all reasonable steps to negotiate and perform the terms of its contracts in a manner that will avoid engaging in any conduct that would contravene the EO Act: paragraph 2(a).
They also include providing information to workers about why acts that would otherwise contravene the EO Act are being undertaken. Specifically, paragraph 2(b) of the exemption is a condition that if a worker is moved from a project involving the use of Controlled Items, an authorised officer must explain the reason for the transfer and take all reasonable steps to avoid or limit harm or loss to that person: paragraph 2(b). A further condition is that Jet Aviation's employment policies shall be amended as soon as possible to refer to the exemption and its conditions, and to make it clear that the purpose is to comply with US laws.
Other conditions in the exemption include ensuring no information concerning nationality is apparent on the face of security passes: paragraph 2(c); and restricting access to information about nationality to certain persons in the company on a 'need-to-know basis': paragraph 2(d).
These conditions, in my view, will assist to minimise the impact of the exemption on Jet Aviation's employees, contractors and prospective employees and contractors. Awareness of the exemption and its conditions in Jet Aviation's employment policies will also help to ensure compliance with the exemption and the effectiveness of the conditions.
Condition 3 has also been included, which requires annual reporting to the Commissioner. The appropriateness of the inclusion of such a condition was discussed by Deputy President Glancy (now President Glancy) in Cobham, at [118] - [123]:
118.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.
119.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.
120.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.
121.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.
122.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.
123.Finally, reporting to the Commissioner is commonly a condition imposed on the granting of an exemption under s 135 of the EO Act.
(Footnote omitted)
I agree that it is appropriate to include such a condition in the exemption sought by Jet Aviation. This case differs in one minor respect, which was that the Commissioner did not express a view about reporting in his affidavit. However, for the reasons expressed by President Glancy, which I agree with and adopt, the reporting requirement is an important condition to include in the exemption. It provides independent oversight for the term of the exemption, which is consistent with the objects, scope, and purpose of the EO Act, including the Commissioner's statutory role. Oversight by the Commissioner will also help to promote public confidence in the EO Act, including the grant of exemptions.
The conditions set out in the exemption are consistent with the conditions imposed in other cases where s 135 exemptions on the ground of race have been granted, for example, in Cobham. However, an additional exemption has been included in paragraph 2(f) to confirm that the exemption will only apply to conduct where ITAR exemptions, exceptions, or other provisions, including the s 126.18 exemption, are not applicable. That condition will serve to limit the exemption because Jet Aviation may not need to engage in the proposed discriminatory acts if the Controlled Items are unclassified, and the worker has an Australian Government-issued Security Clearance.
The terms and conditions of the exemption are also generally consistent with the terms of the exemptions granted to Jet Aviation in other Australian States.
These conditions are reasonable and will assist to limit the exemption as far as possible. I find that it is appropriate that these conditions, which are included in the exemption set out in Annexure A, should be included in the exemption.

Term of the exemption

As I have outlined above, Jet Aviation's contracts currently end earlier than the five years sought for the term of the exemption. However, two of those contracts have options to extend until 2042 and 2031. I also note that Jet Aviation has been contracting with the Defence Department since 2007, a period of some 17 years, which suggests the ongoing nature of the contractual relationship.
I am satisfied that Jet Aviation has ongoing contractual relationships with the Defence Department which extend beyond the term that it is seeking for the exemption, which is five years.
A five-year term will give Jet Aviation a period of commercial certainty so that it can continue to operate its business, a substantial part of which is from its contracts with the Defence Department. It will also provide commercial certainty so that Jet Aviation can exercise the options contained in the contracts to extend them for further terms.
Jet Aviation has also submitted that it will be required to expend resources in creating and managing processes for complying with the terms and conditions of the proposed exemption, which is not insignificant considering the size of its workforce in Western Australia and would warrant an extension for the maximum period. I have not been provided with evidence about the likely expenses involved, but I accept this submission, based on the measures outlined in the Purry Affidavit to comply with the exemption and to limit its impact. This adds weight to the exemption being granted for a five-year period.
An exemption for a five-year term would also be counter-balanced by the condition requiring Jet Aviation to report annually to the Commissioner. The Commissioner will be able to monitor any changes in circumstances which may mean that the exemption is no longer necessary.
I am therefore satisfied that a five-year term is appropriate in the circumstances of the case.

Conclusion

Having considered the objects, scope, and purpose of the EO Act, and after weighing the considerations that are relevant to the grant of the exemption, I am satisfied that an exemption with conditions for a term of five years is appropriate and warranted in the circumstances.
I will therefore exercise discretion to grant the exemption sought by Jet Aviation for a term of five years.

Orders

I make the orders set out in Annexure A.

Annexure A
The Tribunal orders:
1.Pursuant to section 135(1) of the Equal Opportunity Act 1984 (WA) (EO Act), Jet Aviation Australia Pty Ltd (Jet Aviation) is granted an exemption from compliance with the provisions of s 37, s 39 and s 49 of the EO Act for a period of five (5) years insofar as those sections relate to the 'race' (as defined in s 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 ITAR and/or EAR-controlled items 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 ITAR and/or EAR- controlled items in the performance of their work;
(d)advertise positions and/or otherwise inform applicants for employment in roles which require access to ITARcontrolled items and are subject to permits, licences, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
(i)are not an Australian citizen; or
(ii)hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or
(iii)hold permanent residency in a country or countries other than the US or Australia; or
(iv)have substantive contacts with countries proscribed by section 126.1 of ITAR or the EAR.

(e)ensure that ITAR and/or EAR-controlled items are disclosed only to persons who are not prohibited from receiving a disclosure in accordance with applicable United States laws;
(f)impose limitations or prohibitions on persons of particular nationalities, countries of origin and current and past citizenship having access to ITAR and/or EARcontrolled items in the performance of their work;
(g)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 ITAR and/or EARcontrolled items in the performance of their work;
(h)disclose to US Contractors with whom any of Jet Aviation is 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 ITAR and/or EAR-controlled items in the performance of their work; and
(i)establish security systems which will prevent the unauthorised reexport or retransfer of ITAR and/or EARcontrolled items.

2.The exemption applies subject to the following conditions:
(a)It will only apply to conduct by Jet Aviation where:
(i)that conduct is necessary to enable Jet Aviation to enter into and/or perform contractual undertakings requiring access to ITAR and/or EAR-controlled items; and
(ii)Jet Aviation has 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 EO Act.

(b)Where, in the exercise of this exemption, an employee or contract worker is moved from a project involving the use of ITAR and/or EAR-controlled items to any other work controlled by Jet Aviation or any of their related entities, Jet Aviation 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 Jet Aviation uses a system of security passes to reflect the fact of access to ITAR and/or EAR-controlled items 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 ITAR and/or EAR-controlled items shall be restricted to technology control officers, export control officers, security officers, legal officers and human resources officers of Jet Aviation or its properly appointed nominees on a 'need-to-know' basis.
(e)Jet Aviation's 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.
(f)ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, is not applicable.

3.Jet Aviation must prepare and retain records, and report annually to the Commissioner for Equal Opportunity on 19 November for the duration of the exemption, on the 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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
19 NOVEMBER 2024