Raytheon Australia P/L & Ors - [2008] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
In the Matter of APPLICATIONS FOR EXEMPTION FROM CERTAIN PROVISIONS OF THE EQUAL OPPORTUNITY ACT 1984
RAYTHEON AUSTRALIA P/L & ORS
[2008] SAEOT 3
Reasons for Decision of His Honour Judge Beazley, Member Ms A Bachmann and Member Mr D Shetliffe
31 March 2008
DISCRIMINATION LAW
Application for exemption from the operation of sections 52, 54 and 103(1) of the Equal Opportunity Act 1984 (S.A.) - Exemptions sought to permit discrimination on grounds of nationality or national origin of employees, prospective employees and contract workers - The applicants, having contracted with the Australian Department of Defence, require access to sensitive technology controlled by the government of the United States of America. In order to access such technology the applicants are obliged to discriminate against certain persons on the basis of their nationality - Whether in the exercise of the power to exempt under section 92 of the Act the Tribunal is entitled to have regard to broader considerations including private commercial interests unrelated to issues of discrimination - Balancing of interests in determining whether there is a rational basis for the discriminatory conduct - Whether administrative mechanisms available to avoid discrimination - Application granted upon conditions.
Equal Opportunity Act 1984 (SA) ss5, 52, 54, 92 and 103(1), referred to.
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR at [15];; R v The Australian Broadcasting Tribunal (1979) 144 CLR 45 at 50; Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261; Pulteney Grammar School v Equal Opportunity Tribunal & Ors [2007] SASC 308, applied.
Re: Raytheon Australia Pty Ltd & Others [2008] QADT 1; Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532; Exemption application re: Raytheon Australia Pty Ltd and Ors [2007] VCAT 2230; BAE Systems Australia Ltd [2008] SAEOT 1; Exemption application re: Boeing Australia Holdings Pty Ltd & Ors [2003] QADT 21; Re: Raytheon Australia Pty Ltd & Others [2008] QADT 1; Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [34], considered.

RAYTHEON AUSTRALIA P/L & ORS
[2008] SAEOT 3
Introduction

Raytheon Australia Pty Ltd and its subsidiaries, Aerospace Technical Services Pty Ltd, Australian Maritime Surveillance Pty Ltd and Aeronautical Consulting, Training and Engineering Pty Ltd (“the applicants”) all seek, by application filed on 13 April 2007, orders pursuant to s 92(1)(b) of the Equal Opportunity Act 1984 (SA) (“the Act”) exempting them from the requirements of ss 52, 54 and 103(1) of the Act insofar as those sections prohibit them from taking into account the nationality and national origin of their respective current and prospective employees and contract workers.
The Commissioner for Equal Opportunity (“the Commissioner”) intervened, as of right, by counsel at the hearing, to oppose the application for exemptions.
As will appear from these reasons the applicants have entered into contractual arrangements with the Australian Government, through the Department of Defence, to commercially supply defence industry equipment, technology and services.
In order to meet…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SAEOT 3
Decision Date: 31 March 2008

CaseChat Overview and Summary

Raytheon Australia Pty Ltd and its subsidiaries (the applicants) sought an exemption from certain provisions of the Equal Opportunity Act 1984 (SA), which prohibits discrimination on the grounds of race. The applicants, who are defence contractors, needed access to sensitive United States technology to fulfill their contracts with the Australian Department of Defence. To access this technology, they were required to discriminate against certain individuals based on their nationality or national origin. The Equal Opportunity Tribunal considered whether it could grant an exemption under section 92 of the Act, taking into account the broader commercial interests and public interest in the matter.

The Tribunal found that the applicants needed an exemption to comply with the International Traffic in Arms Regulations, which controlled access to the sensitive United States technology. The Tribunal also found that there were no alternative mechanisms available to the applicants to avoid the discriminatory conduct required by the Regulations. The Tribunal considered the commercial interests of the applicants and the wider public interest in developing a viable defence industry in South Australia, which would provide job opportunities and skills development in the defence technology sector.

The Tribunal concluded that the public and private interests in granting the exemption outweighed the detriment flowing from the discriminatory conduct. The exemption was to be restricted to the minimum necessary to enable the applicants to comply with the International Traffic in Arms Regulations. The Tribunal ordered the applicants to take reasonable steps to avoid or reduce the adverse effects of the exemption, provide notice and information to affected employees, and implement anti-discrimination policies. The exemption was granted for a period of 3 years, subject to further argument on the form of the exemption order.

Orders