Raytheon Australia Pty Ltd & Ors and Act Human Rights Commission
[2008] ACTAAT 19
•24 July 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:RAYTHEON AUSTRALIA PTY LTD & ORS AND ACT HUMAN RIGHTS COMMISSION [2008] ACTAAT 19 (24 July 2008)
AT07/73
Catchwords: Discrimination – application for exemption from operation of provisions of Discrimination Act 1991 making discrimination in work unlawful – discrimination on grounds of race – whether discrimination justified on grounds of national defence and security and impact on employment opportunities afforded by applicants’ operations – purposive interpretation of legislation – considerations relevant to exercise of discretion to grant exemption – reasonable limits on human rights – test of proportionality – relationship between purposive and human rights – compliant interpretation.
Discrimination Act 1991, ss. 4, 10, 13, 23, 69, 109, part 4
Administrative Appeals Tribunal Act 1989 ss. 37, 44
Legislation Act 2001 ss. 137, 138, 139
Human Rights Act 2004 ss. 28, 30
Human Rights and Responsibilities Act 2006 (Vic) s. 32
Human Rights Act 1998 (UK) s. 3
ADI Limited [2004] VCAT 1963 (5 July 2004)
Boeing Australia Holdings Pty Ltd [2007] VCAT 532 (3 May 2007)Boeing Australia Holdings Pty Ltd [2003] QADT 21 (19 November 2003)
ADI Limited [2005] WASAT 259 (28 September 2005)
Raytheon Australia Pty Ltd [2007] VCAT 2230 (17 October 2007)
Raytheon Australia Pty Ltd and Ors [2008} SA EOT 3 (31 March 2008)
BAE Systems Australia Ltd [2008] SAEOT 1 (21 January 2008)
Raytheon Australia Pty Ltd and Ors [2008] QADT 1 (25 January 2008) Kingsley’s Chicken Pty Ltd and Queensland Investment Corporationand Canberra Investments Pty Ltd [2000] ACT A 9 (2 June 2006)
Stevens v. Kabushiki Kaisha Sony [2005] 224 193
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (dated 28 November 2007)Lange v. Australian Broadcasting Corp (1997) 189 CLR 520 at 562
Ghaidan v Godin-Mendoza (2004) 2 AC 557
Tribunal:Mr M H Peedom, President
Date: 24 July 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/73
GENERAL DIVISION )
RE: RAYTHEON
AUSTRALIA PTY LTD
AEROSPACE
TECHNICAL
SERVICES PTY LTD
AUSTRALIAN
MARITIME
SURVEILLANCE PTY
LTD
AERONAUTICAL
CONSULTING,
TRAINING &
ENGINEERING
Applicants
AND: ACT HUMAN RIGHTS
COMMISSION
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 12 August 2008
Decision :
Further to the decision of the Tribunal dated 24 July 2008 and pursuant to section 109(1) of the Discrimination Act 1991 (“the Act”), the applicants are granted an exemption from the operation of sections 10, 13, 23 and 69 of the Act on the following conditions:
(a)The exemption applies only in respect of actions or omissions which are reasonably necessary for the applicants to meet the requirements of the Department of State of the United States of America, the United States Department of Commerce and the United States Federal Aviation Authority, contained in or referable to the International Traffic in Arms Regulations and the Export Administration Regulations (“the US Security Regulations”);
(b)For an applicant to take the benefit of the exemption in relation to an action or omission which adversely affects an existing or potential employee or employee of a contractor, it must take reasonable steps to avoid or reduce the adverse effect. In particular, the applicants are required, prior to taking any action permitted by this exemption order, to:
(i)assess the reasonableness of gaining a specific approval for an employee, prospective employee or employee of a contractor who does not satisfy the US Security Regulations;
(ii)provide all current and prospective employees with:
(A)express written notice that they may be adversely affected by the company’s exemption if they are not an Australian citizen or if they are an Australian citizen but were born outside Australia and/or hold or have held citizenship or nationality of another country;
(B)a reasonable explanation in plain English of the nature of any adverse effects of such action to them;
(C)information about how they can apply for Australian citizenship; and
(D)information regarding their rights under the Racial Discrimination Act 1975 (Cth) and the Discrimination Act 1991 (ACT), and, in particular, the complaints procedure under those Acts and the rights of aggrieved persons to take their complaints to the ACT Human Rights Commission and the (Australian) Human Rights and Equal Opportunity Commission;
(iii)provide all employees with at least bi-annual education and training in anti-discrimination, particularly race discrimination, and the internal and external procedures available to receive, investigate and resolve discrimination complaints and grievances and, in particular, those relating to race;
(iv)provide to the applicants’ contractors:
(A)express notice that the contractor’s employees may be adversely affected by the exemption if they are not an Australian citizen or if they are an Australian citizen but were born outside Australia and/or hold or have held citizenship or nationality of another country;
(B)a document containing a reasonable explanation in plain English of the nature of this exemption order that the contractor may provide to the contractor’s employees; and
(C)guidance to enable the contractor to conduct training in anti-discrimination and particularly race discrimination;
(v)implement comprehensive anti-discrimination and equal opportunity policies governing all aspects of the work and workforce, including management, and with particular regard to race discrimination.
(c)The applicants are required to provide a written report to the ACT Human Rights Commission every six months from the date of this exemption order, over the three year period specified in the order, detailing:
(i)the steps they have taken to comply with the above conditions including detailed information about the training and education programs provided and evidence of the implementation of anti-discrimination and equal opportunity policies;
(ii)the number of persons affected by this exemption order, the nature of the effects, and the steps taken to redress any adverse effects; and
(iii)implementation and compliance generally with the terms of this exemption order.
The applicants’ compliance with these orders will be a factor considered in connection with any future renewal of these orders.
This exemption is to remain in force until three (3) years from the date granted.
SCHEDULE OF APPLICANTS:
1. Raytheon Australia Pty Ltd;
2. Aerospace Technical Services Pty Ltd;
3. Australian Maritime Surveillance Pty Ltd;
4. Aeronautical Consulting, Training & Engineering Pty Ltd;
5.Other companies which are now or may in the future be related entities to Raytheon Australia Pty Ltd within the meaning of the Corporations Act 2001 (Cth); and
6.Officers and employees of any company which is otherwise an applicant.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/73
GENERAL DIVISION )
RE:RAYTHEON AUSTRALIA
PTY LTD
AEROSPACE TECHNICAL
SERVICES PTY LTD
AUSTRALIAN MARITIME SURVEILLANCE
PTY LTD
AERONAUTICALCONSULTING TRAINING
AND ENGINEERING
Applicant
AND: ACT HUMAN
RIGHTS COMMISSION
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 24 July 2008Decision:
1.The decision of the respondent is set aside.
2.The parties are given leave to make submissions in relation to the further terms of the decision of the Tribunal pursuant to section 44(1)(c) of the Administrative Appeals Tribunal Act 1989 in accordance with the directions of the Tribunal dated 24 July 2008.
........................................
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/73
GENERAL DIVISION )
RE:RAYTHEON AUSTRALIA
PTY LTD
AEROSPACE TECHNICAL
SERVICES PTY LTD
AUSTRALIAN MARITIME SURVEILLANCE
PTY LTD
AERONAUTICALCONSULTING TRAINING
AND ENGINEERING
Applicant
AND: ACT HUMAN
RIGHTS COMMISSION
Respondent
REASONS FOR DECISION
24 July 2008 Mr M H Peedom, President
The decision under review
This is an application to review a decision of the ACT Human Rights Commission made on 20 November 2007 pursuant to section 109(1) of the Discrimination Act 1991 (“the Discrimination Act”). The decision was to refuse to grant the applicants an exemption from the operation of specified provisions of the Discrimination Act without which exemption certain proposed conduct of the applicants would be unlawful under that Act.
Background
2. The background to the applicants’ application for exemption is conveniently set out as follows in a Statement of Facts and Contentions lodged with the Tribunal on behalf of the applicants pursuant to directions given by the Tribunal on 29 January 2008. The accuracy of the statement was not challenged by the respondent.
3. One of the applicants, Raytheon Australia Pty Ltd (“Raytheon”), is a mission systems integrator providing integration and solutions for sea, land, air and office environments, primarily in defence environments. It is an industry leader in the design, manufacture, implementation and maintenance of defence systems. In Australia, Raytheon’s primary customer is the Commonwealth of Australia, through the Department of Defence.
4. Raytheon has facilities located across the country and has an engineering and technical workforce of almost 1,300 persons Australia wide. It operates two sites in the ACT: its head office at Brindabella Business Park where approximately 110 individuals are currently employed, and the Canberra Deep Space Communications Complex (“CDSCC”) at Tidbinbilla where more than 120 individuals are currently employed. CDSCC is operated on behalf of the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) and functions as part of the NASA Deep Space Network.
5. In connection with its ordinary business activities in Australia, Raytheon has entered into various contracts with the Commonwealth of Australia, as represented by the Department of Defence, and other companies in Australia or the United States of America to provide defence-related goods and services to be used ultimately by the Australian Defence Forces (“the contracts”).
6. The US Arms Export Control Act authorises the US Department of State to control the export and import of defence articles and defence services. These controls are implemented through the International Traffic in Arms Regulations (“ITAR”) which restrict the transfer of certain defence articles, technical data and defence services (“ITAR controlled material”) outside the US and to non-US persons. The Director of Defence Trade Controls (“DDTC”) is the individual and agency responsible for administering the ITAR on behalf of the Department of State.
7. In order to fulfil their obligations under the contracts, it is necessary for Raytheon to obtain from US companies, including their corporate parent, The Raytheon Company, and from US Government agencies, access to ITAR controlled material. Access is obtained through authorisation granted by the DDTC in the form of Technical Assistance Agreements (“TAAs”), Manufacturing Licence Agreements (“MLAs”) and other similar documents.
8. Section 124.8(5) of the ITAR provides that the following statement must be included in all TAAs and MLAs:
The technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorised in this agreement unless the prior written approval of the Department of State has been obtained. (Emphasis added).
9. Consequently the applicants are contractually bound not to transfer ITAR controlled material to a “national of a third country”.
10. In applying the prohibition on the transfer of ITAR controlled material to “nationals of a third country” in the context of TAAs between US and non-US companies, the ITAR has been further explained by DDTC in its Guidelines for Preparing Agreements as prohibiting transfers to both “dual national” and “third country foreign national” employees. The DDTC has an absolute discretion about whether or not to authorise the transfer of ITAR controlled material to a “dual national” or “third country foreign national”.
Nature and scope of the exemption sought
11. The applicants’ exemption application sought an exemption in relation to the operation of sections 10, 13, 23 and 69 of the Discrimination Act insofar as those sections extend to the nationality and national origin of employees and contract workers of the applicant in the ACT and persons who apply for employment or contract work with the applicant in the ACT where their employment or work will require access to ITAR controlled material. The exemption was sought for a period of 3 years in accordance with section 109(4)(c) of the Act.
12. Sections 10 & 13 are contained in Part 3 of the Discrimination Act. They provide:
10Applicants and employees
(1)It is unlawful for an employer to discriminate against a person -
(a)in the arrangements made for the purpose of deciding who should be offered employment; or
(b)in deciding 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—
(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 benefit associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
13 Contract workers
It is unlawful for a principal to discriminate against a contract worker—
(a)in the terms or conditions on which the principal allows the contract worker to work; or
(b) by not allowing the contract worker to work or continue to work; or
(c)by denying the contract worker access, or limiting the contract worker’s access, to any benefit associated with the relevant work; or
(d) by subjecting the contract worker to any other detriment.
13. Section 69 is contained in Part 7 of the Discrimination Act. It provides:
69Unlawful advertising
It is unlawful for a person to advertise any matter—
(a)that indicates an intention to do an act that is unlawful under part 3, part 5 or this part; or
(b) that could reasonably be understood as indicating such an intention.
14. Section 109, pursuant to which the decision under review was made, provides:
109Grant of exemptions
(1)The HRC may, on written application, exempt the applicant in writing from the operation of a specified provision of part 3, part 5 or part 7.
(2)The HRC may, on a written application made—
(a)by a person to whom an exemption has been granted; and
(b)before expiry of that exemption;
further exempt the applicant, in writing, from the operation of the provision concerned.
(3)In the exercise of a power under subsection (1) or subsection (2), the matters to which the HRC must have regard include the following matters:
(a)the need to promote an acceptance of, and compliance with, this Act;
(b)the desirability, if relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination.
(4)An exemption or further exemption—
(a)is a notifiable instrument; and
(b)is subject to the conditions (if any) specified in the notice; and
(c)has effect according to its terms for the period not longer than 3 years specified in the notice.
NoteA notifiable instrument must be notified under the Legislation Act.
(5)If the HRC refuses to grant an exemption or a further exemption, the HRC must give the applicant or each applicant written notice of the refusal.
(6)A notice referred to in subsection (4) or subsection (5) must be in accordance with the requirements of the code
(7)of practice in force under the Administrative Appeals Tribunal Act 1989, section 25B (1).
15. The applicants stated that they sought an exemption because the ITAR and DDTC impose restrictions which in the circumstances of some individuals could result in the need to discriminate against current or prospective employees or contract workers on the grounds of their “dual national” or “third country foreign national” status, that is, nationality under the Act. They further stated that the exemption was sought only to the extent needed to permit the applicants to meet the specific requirements of the ITAR without contravening the Act.
16. The conditions proposed by the applicants are as follows:
(d)The exemption applies only in respect of actions or omissions which are reasonably necessary for the applicants to meet the requirements of the Department of State of the United States of America, the United States Department of Commerce and the United States Federal Aviation Authority, contained in or referable to the International Traffic in Arms Regulations and the Export Administration Regulations (the US Security Regulations), so far as those requirements apply directly or indirectly to work carried on, or on behalf of, or at the request of, or under the control or supervision of, an applicant.
(e)For an applicant to take the benefit of the exemption in relation to an action or omission which adversely affects an existing or potential employee or employee of a contractor, it must take reasonable steps to avoid or reduce the adverse effect. In particular, the applicants are required, prior to taking any action permitted by this exemption order, to:
(i)assess the reasonableness of gaining a specific exemption for an employee, prospective employee or employee of a contractor who does not satisfy the US Security Regulations;
(ii) provide all current and prospective employees with:
(A)express notice that they may be adversely affected by the exemption if they are not an Australian national or if they hold dual nationality and/or citizenship;
(B)a reasonable explanation in plain English of the nature of any adverse effects of such action to them;
(C)information about how they can apply for Australian citizenship; and
(D)information regarding their rights under the Racial Discrimination Act 1975 (Cth) and the Discrimination Act 1991 (ACT), and, in particular, the complaints procedure under those Acts and the rights of aggrieved persons to take their complaints to the ACT Human Rights Commission and the (Australian) Human Rights and Equal Opportunity Commission;
(iii) provide all current employees with ongoing and regular education and training in anti-discrimination, particularly race discrimination, and the internal and external procedures available to receive, investigate and resolve discrimination complaints and grievances and, in particular, those relating to race;
(iv)provide to the applicants’ contractors:
(A)express notice that the contractor’s employees may be adversely affected by the exemption if they are not an Australian national or if they hold dual nationality and/or citizenship;
(B)a document containing a reasonable explanation in plain English of the nature of this exemption order that the contractor may provide to the contractor’s employees; and
(C)guidance to enable the contractor to conduct training in anti-discrimination and particularly race discrimination
(v)implement comprehensive anti-discrimination policies governing all aspects of the work and workforce, including management, and in particular regard to race discrimination.
(f)The applicants are required to provide a written report to the ACT Human Rights Commission every six months from the date of this exemption order, over the three year period specified in the order, detailing:
(i) the steps they have taken to comply with the above conditions;
(ii)the number of persons affected by this exemption order, the nature of the effects, and the steps taken to redress any adverse effects; and
(iii)implementation and compliance generally with the terms of this exemption order.
The applicants’ compliance with these orders as demonstrated in its report will be a factor considered in connection with any future renewal of these orders.
This exemption is to remain in force until [3 years from date granted].
17. In addition to the terms of the proposed exemption order, submissions were made to the respondent in connection with the exemption application to the effect that, if it was necessary for the applicants to rely on an exemption granted to them to discriminate against a current or prospective employee or contract workers on the grounds of nationality, the applicants would:
(a)take all reasonable steps to ensure that any employee adversely affected by the proposed exemption order remained employed by the applicant and did not suffer a reduction in wages, salary or opportunity for advancement;
(b)where the employee concerned was required to be moved from one project to another, the applicants would take reasonable steps to explain to that person why the transfer had occurred and to avoid any hostility that might result from the transfer; and
(c)where the employee concerned was a prospective employee who would otherwise have been an acceptable candidate, the applicants would make all reasonable efforts to employ the individual in another position not requiring access to ITAR controlled material.
The evidence
18. At the hearing of the appeal a number of documents were tendered in evidence in support of the exemption application. The Tribunal also had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 which set out the respondent’s reasons for decision and findings on material questions of fact together with the evidence on which those findings were based.
19. It is sufficient, at this stage, to refer to affidavits sworn by Mr. P B Haseman and Mr S L Jones.
20. Mr Haseman is the Director of Legal Affairs of Raytheon and Senior Counsel of Raytheon International Incorporated. Mr Haseman stated that the CDSCC was the primary focus for the NASA space communications activities within Australia and was an integral part of its ongoing space exploration program. NASA relied on the facilities at the CDSCC to ensure that it could maintain constant observation of spacecraft as the earth rotated. He said that the vast majority of technology and information needed by the 121 persons employed by Raytheon at the CDSCC to operate it and the NASA deep space network, was ITAR controlled material. Without access to that material Raytheon’s employees would not have access to the necessary operations, support and maintenance specifications required to keep the site operational.
21. Mr Haseman said that Raytheon also employed 115 persons at its head office at Brindabella Business Park. They included key management personnel who had responsibility for supervising and co-ordinating at the business level the operation of all activities and programs operated by Raytheon around Australia. Although all of those employees did not require day-to-day access to ITAR controlled material their close involvement in the company’s Australia-wide operations meant that access to it was required to make decisions in relation to advertising and the ultimate selection of positions with Raytheon; to manage and monitor all aspects of contracts concerning ITAR controlled material; for senior managers to make decisions based on ITAR controlled material if required; and to run some classified programs in the ACT.
22. Mr S L Jones, who was the Director of Legal Affairs of Raytheon and Senior Counsel, Raytheon International Incorporated said that the applicants had a relationship with the Royal Australian Air Force and the Royal Australian Army which included mission systems integration, mission requirements planning, logistical and maintenance support and the supply of senior systems and other defence articles. Raytheon had more than 1100 employees in Australia in 2006. The majority of its contracts required it to have direct communication and interaction with US companies and government agencies. If the applicants failed to comply with the approval issued to it for the use of ITAR controlled material its authority could be revoked; it could be debarred from the use or receipt of those materials; and the US companies which exported the materials to Raytheon under agreements could be prosecuted.
23. Mr Jones said that the services provided by Raytheon in Australia related to matters central to Australia’s defence operations and issues of national security. If the exemption requested was not granted it may not be able to complete its contracts. This could compromise Australia’s defence capabilities and, in some instances, impact on the readiness of its defence forces. It was likely also that the required work would be sent offshore causing a loss of Australian jobs, a less capable industrial base in Australia, substantially increased defence costs and delays in the completion of significant defence projects. Support industries would also be affected including those which employed approximately 240 fulltime and contract personnel in the ACT.
24. Mr Jones said that Raytheon had given detailed consideration to alternatives to its exemption application. The only alternative identified would be for it to seek the consent of the relevant US authority to amend the various agreements to include approvals for employees in Australia who were dual nationals and/or third country nationals to be permitted access to ITAR controlled materials. This was not a viable option because the submission of the documentation for approval could not eliminate the need for Raytheon to seek information related to nationality and national origin from current and prospective employees and contract workers as well as request affected approved persons to execute non-disclosure agreements. The processing of each stage of the amendments to the agreement took approximately 3-9 months or longer depending on the complexity of the approval sought. While changes by the US Department of State to some of its policies were helpful to Raytheon the relevant US authority maintained discretion over its application and did not cover nationals of countries which were proscribed and may not cover Raytheon’s current or future employee pool and would not absolve it for the retransfer of controlled material to dual nationals or third-country nationals in the past. The delays associated with the processing of amendments, the uncertainty of the process and the need for segregation measures while approvals were being processed made the alternative course impractical.
The justification for the exemption
25. On behalf of the applicants it was submitted by Mr J Kirk, of counsel, that the evidence of Mr. Haseman and Mr Jones demonstrated that there was a substantial public interest in granting the exemption as requested under section 109 of the Discrimination Act. Firstly, it was submitted, that a refusal to grant the exemption would adversely impact on Australia’s defence capability and readiness. Irrespective as to any view that might be taken of the justification for the restrictions on access to ITAR controlled material, those restrictions were beyond the control of the applicants and it was in the interest of Australia to have access to it.
26. Secondly, a refusal to remove the exemption would likely result in Raytheon being unable to continue to operate the CDSCC at Tidbinbilla with a consequent loss of employment opportunities for a significant number of people employed at that facility and industries which support it.
27. The applicants relied upon a number of decisions in other jurisdictions which had recognised the public interests identified by the applicants in this case and which had granted exemption from the operation of anti-discrimination legislation in those jurisdictions. The following decisions were cited:
(1)ADI Limited (Government Gazette of the State of New South Wales dated 11 February 2005) – an exemption was granted on 28 June 2005 by the Attorney General of New South Wales from the operation of the Anti-Discrimination Act 1977 (NSW) to enable the applicants to meet their legal obligations pursuant to agreements granted by the US Department of Commerce pursuant to ITAR and Export Administration Regulations (“EAR”);
(2)Boeing Australia Holdings Pty Ltd (Government Gazette of the State of New South Wales dated 17 July 2005) – a similar exemption was granted by the New South Wales Attorney General on 8 February 2005;
(3)ADI Limited [2004] VCAT 1963 (5 July 2004) – an exemption was granted on 5 July 2004 by the Victorian Civil and Administrative Decisions Tribunal (“VCAT”) from the operation of the Equal Opportunity Act 1995 (Vic) to enable the applicants to meet obligations in relation to defence related projects required by US laws;
(4)Boeing Australia Holdings Pty Ltd [2007] VCAT 532 (3 May 2007) – an exemption was granted by the VCAT from the operation of the provisions of the Equal Opportunity Act 1995 (Vic) to enable the applicants to meet US ITAR and EAR;
(5)Boeing Australia Holdings Pty Ltd [2003] QADT 21 (19 November 2003) – an exemption was granted by the Queensland Anti-Discrimination Tribunal from the application of provisions of the Anti-Discrimination Act, 1991 (Qld) to enable the applicants to meet requirements of the ITAR and EAR;
(6)ADI Limited [2005] WASAT 259 (28 September 2005) – an exemption was granted by the State Administrative Tribunal of Western Australia from the operation of provisions of the Equal Opportunity Act 1984 (WA) to enable the applicants to fulfil their obligations under defence contracts with the Australian Government. An appeal against the decision was dismissed by the Supreme Court of Western Australia [2007] WASCA 261 (28 November 2007);
(7)Raytheon Australia Pty Ltd [2007] VCAT 2230 (17 October 2007) – an exemption was granted by VCAT from the application of the Equal Opportunity Act 1995 (Vic) to enable the applicants to meet the US ITAR and EAR;
(8)Raytheon Australia Pty Ltd and Ors [2008] SA EOT 3 (31 March 2008) – exemption granted by the SA Equal Opportunity Tribunal from the operation of provisions of the Equal Opportunity Act 1984 (SA) to enable the applicants to discriminate against employees on the grounds of nationality to enable defence contracts subject to ITAR and EAR to be performed;
(9)BAE Systems Australia Ltd [2008] SAEOT 1 (21 January 2008) – an exemption was granted by the Equal Opportunity Tribunal of South Australia to enable the applicant to discriminate on grounds of nationality in performing obligations under defence contracts that required the applicant to have access to security-sensitive material controlled by the US government;
(10) Raytheon Australia Pty Ltd and Ors [2008] QADT 1 (25 January 2008) – an exemption was granted to the applicants by the Anti-Discrimination Tribunal, Queensland from the operation of provisions of the Anti-Discrimination Act 1991 (Qld) to enable them to meet the ITAR and EAR requirements;
28. In ADI Limited (No. (6) above) the State Administrative Tribunal concluded that the public interest in granting the exemption overrode the exercise of the discretion to refuse to grant the application for exemption. In doing so it observed that the likely closure of the applicants’ operations in Western Australia was not in the best interests of the community of that State or for that potential to exist and that a public interest existed in the applicant fulfilling its contractual obligations to supply defence equipment of the highest quality and using the latest available technology. While the State Administrative Tribunal considered that the applicants could reasonably be expected to continue to seek amendments to the TAAs and MLAs, such processes were potentially lengthy and expensive and were neither feasible nor practical.
29. In Boeing Australia Holdings Pty Ltd (No.5 above) in granting the exemption the Queensland Anti-Discrimination Tribunal accepted, inter alia, that national security considerations in the context of defence work in which the applicant was involved and the impact on the national economy were matters which, in the public interest justified the grant of an exemption.
30. In Boeing Australia Holdings Pty Ltd (No.4) above) the President, Morris, J in giving consideration as to whether it was reasonable under the Equal Opportunity Act 1995 (Vic) to grant an exemption to depart from the human rights standards contained in that Act concerning nationality, said:
40 There is no doubt that this application throws up a dilemma. To grant an exemption would be a departure from a human rights standard that is established by Victorian legislation. Such a departure is only sought because important aerospace technology is subject to an American law which places American security ahead of this human rights standard. One might ask: why should not the Americans give way? On the other hand, in circumstances where it is unlikely that the Americans will give way, should we stand on principle and forego valuable jobs and enhanced defence capability? Would this be a case of cutting off our nose, not to spite our face, but to please our face?
41 The submission made by the AMWU urged the tribunal to take a tough line; in effect, to apply pressure on the United States government to back down. This is a tempting submission. One suspects that the ITAR is misconceived; and, in any event, fails to achieve an appropriate balance between human rights and other important considerations, such as arms control and preventing terrorism. But, then, I rather doubt that the United States government will back down from ITAR in the face of a decision of the Victorian Civil and Administrative Tribunal.
42 Sometimes you simply cannot ignore the elephant in the room.[24] Like it or not, the United States is the world power and controls key aerospace technology. For reasons that are probably well intentioned (even if misguided), the United States prohibits the licencing of such technology if so-called secrets are revealed to persons of certain nationality. Companies operating in Australia are left with the choice of acquiescing or not manufacturing certain aerospace products. Although acquiescence involves compromising a human rights standard, the alternative involves the potential sacrifice of jobs, economic benefits, defence capability and higher education advantages.
31. In Raytheon Australia (No.10 above) the Anti-Discrimination Tribunal of Queensland noted that the applicants had been granted exemptions in Queensland and other Australian States. The Tribunal considered that, subject to the conditions proposed by the applicant, it was appropriate and reasonable for an exemption to be granted. In doing so it referred to the benefits to the Australian community in being able to access the relevant defence technology and in its own workers having the ability to use their skills in those industries. It was also satisfied that there were no other anti-discriminatory ways reasonably open to the applicants to continue their business activities.
32. Mr C Erskine of counsel who represented the respondent accepted that there was an important public policy objective to be furthered by the grant of an exemption in this case, ie, it would advance national security for Australia to have access to the most sophisticated defence equipment reasonably available and it would advance the national commercial interest for that equipment to be built or maintained in Australia. He also accepted that the revised conditions of an exemption proposed by the applicants were likely to be the least restrictive option reasonably open and that the proposed exemption would not undercut the exemptions specified in Part 4 of the Discrimination Act. He submitted, however, that the evidence before the Tribunal failed to explain why the applicants had apparently been able to carry on business in the Australian Capital Territory for a long period of time while the US restrictions applied and whether the applicants had contacted the relevant US authority in accordance with guidelines it had issued that it be contacted if local laws prevented information being sought about dual citizenship of employees and, if so, with what result. He also drew attention to a number of submissions made to the respondent about the capricious manner in which the nationals of some countries had been excluded from access to ITAR material.
33. In responding to these submissions Mr Kirk drew the Tribunal’s attention to, inter alia, material before it which described a heightened security environment developing in the US in 2003; enforcement action in the US against General Dynamics/General Motors in November 2004 which resulted in the imposition of a penalty of $US 20M for the retransfer of ITAR controlled material to dual national and third-country foreign national employees and the imposition of a civil penalty of $US 25M on the Raytheon company for breaching ITAR due to the actions partially of one of its international subsidiaries which resulted in increased monitoring of the Raytheon company and all its subsidiaries by DDTC.
34. Mr Kirk also referred to the evidence of Mr Jones that inter alia, Raytheon was in the process of advising DDTC of the inherent conflict between ITAR and Australian discrimination laws and its impact on operations in Australia in addition to representations made to the United States by a number of countries at the highest level including Canada, Australia and the United Kingdom and the fact that approval had now been obtained to 2 foreign national employees referred to in Mr Erkine’s submissions having access to ITAR controlled material and that it did not currently have any employees without approval to access that material.
35. Mr Kirk submitted that it was unrealistic to regard race as an unacceptable basis for the grant of an exemption in the circumstances of this case. Under Australian law, the Australian Security Intelligence Organization had excluded persons from employment on the basis of race and that, in any event the determination by the US of a test of allegiance was a matter for the US and beyond the control of the applicants.
36. Irrespective, however, as to the weight to be attached to the public interest considerations Mr Erskine submitted that a different regime of statutory interpretation applied in the ACT to that of the States which prevented the Tribunal from granting the exemption in this case.
The Legislation Act
37. Mr Erskine relied upon section 138 and 139 of the Legislation Act 2001 (“the Legislation Act”) in support of his submission that section 109 of the Discrimination Act did not give an unqualified discretion to exempt any conduct from the operation of the Discrimination Act. To do so, he submitted would be contrary to the subject matter, scope and purpose of the Discrimination Act and would not further a purposive construction of the Discrimination Act as required by section 138 and 139.
38. The sections to which the submission made reference are contained in Chapter 14 of the Legislation Act. The purpose of chapter 14 is said to be to provide guidance about the interpretation of Acts and not intended as a comprehensive statement of the law of interpretation applying to Acts. The chapter assumes that common law presumptions operate in conjunction with it (see section 137).
39. Sections 138 and 139 provide:
LEGISLATION ACT 2001 – SECTION 138
Meaning of working out the meaning of an Act
In this part:
“Working out the meaning of an Act” means –(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displaying the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)finding the meaning of the Act in any other case.
LEGISLATION ACT 2001 – SECTION 139
Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
Note the Human Rights Act 2004; s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
40. In Kingsley’s Chicken Pty Ltd and Queensland Investment Corporation and Canberra Investments Pty Ltd [2000] ACT A 9 (2 June 2006) the Court of Appeal said, in relation to section 139 of the Legislation Act, that “whatever the common law of statutory interpretation, the ACT Legislative Assembly has made clear in the Legislation Act 2001…that legislative intention must be given a primary role in working out the meaning of an Act” and that “the effect of section 139 of the Legislation Act in our view requires this Court to prefer an interpretation that best achieves the purpose of the legislation”.
41. The objects of the Discrimination Act are set out in section 4 as follows:
4Objects
The objects of this Act are—
(a)to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs; and
(b)to eliminate, so far as possible, sexual harassment in those areas; 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 principle of equality of opportunity for all people.
42. It is to be noted that the objectives specified in paragraphs (a) and (b) are not expressed in absolute terms. They are directed to the achievement of the objectives specified “so far as possible”. Further, the Discrimination Act not only contains specific exceptions in Part 4 to what would otherwise constitute discrimination, it also contains the power, in section 109, to grant exemption from specific provisions of the Discrimination Act in terms which are not constrained except for the requirement that, in the exercise of the power, the matters referred to in section 109(3) be taken into account and as to the period of time during which the exemption is able to remain in force.
43. In determining what is the purpose of the Discrimination Act, in the application of section 139 of the Legislation Act, it is necessary to avoid fixing upon the statement of objectives contained in section 4 of the Discrimination Act and to have regard to the broader operation of the Act as a whole (see Stevens v. Kabushiki Kaisha Sony [2005] 224 193 at 206-208).
44. It is apparent that, in arriving at the decisions in each of the cases referred to in paragraph 27 above, the view was taken that in exercising the discretion to grant an exemption from the operation of equal opportunity/anti-discrimination legislation of the relevant State, the decision-maker was entitled to have regard to broad considerations of public interest. Those views were expressed in Boeing and ADI in the following terms.
45. In Boeing Australia Holdings Pty Ltd (No.4 above) at paragraph 30 the VCAT President, Morris J said:
30 When a discretion is contained in a statutory instrument and the instrument is silent as to the basis upon which the discretion is to be exercised, the usual approach is to acknowledge a discretion unlimited by anything but the scope and object of the instrument conferring it.[15] Clearly enough the object of the Act is to promote the right to equality of opportunity and to eliminate discrimination. But it does not follow that a discretion to grant an exemption from the prohibition on discrimination can only be exercised if this would advance the objects of the Act. Such an approach is anomalous if the discretion in question allows an exemption from provisions of the Act prohibiting discrimination. 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.
46. In Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (dated 28 November 2007) Martin, CJ said:
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 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…have been recognised by the legislature as providing a sufficient justification for the permission of conduct which would otherwise be unlawful.
47. It is clear that in all of the decisions to which reference has been made in paragraph 27 above, each of the decision-makers has taken the view that the power to exempt an applicant from the operation of the relevant anti-discrimination law pursuant to which the exemption was sought was within the purpose of that law and could be exercised even where the justification for doing so was beyond the anti-discriminatory objectives of the Discrimination Act. It is also clear that the same kinds of grounds that are relied upon for the grant of an exemption in this case were regarded as a sufficient justification for exemption by the decision-maker in each of those cases.
48. In my view, the reasoning in the decisions to which I have made reference is compelling and, in the interests of uniformity and comity the same conclusion should be arrived at in this case.
49. Mr Erskine submitted, however, that there were other features of relevant ACT legislation which distinguished it from that which applied in the States. He referred, in particular to subsection (3) of section 109 of the Discrimination Act and sections 28 and 30 of the Human Rights Act 2004 (“the ACT HRA”).
Section 109(3)
50. Section 109(3) of the Discrimination Act provides that:
(3)In the exercise of a power under subsection (1) or subsection (2), the matters to which the HRC must have regard include the following matters:
(a)the need to promote an acceptance of, and compliance with, this Act;
(b)the desirability, if relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination.
51. Plainly, a requirement to “have regard to” specified matters, although indicative of the need to accord such matters considerable weight, does not exclude other matters from consideration. That being so, there would be difficulty in not allowing for the prospect that in the balancing of all of the considerations that were relevant to a resolution of the issue in question, the other considerations might outweigh those specified matters which the legislation mandated be taken into account. In general, however, it would be expected that those considerations that were not consistent with human rights would need to involve matters of considerable importance to outweigh such rights.
52. Mr Erskine gave as an example of the kind of exemption which might be granted under section 109, despite being inconsistent with the protection sought to be given by the Discrimination Act, a transitional situation to allow widespread discrimination to be phased out over a period of time. Given the specification of a commencement date less than 2 months after the notification of the Discrimination Act it seems no more likely to me that the legislature had in mind an exemption for this kind of reason than for more broadly based considerations including those which had significant public interest implications, albeit subject to appropriate controls. Save that section 109(3) mandates the taking into consideration the matters which it specifies, I see nothing in section 109 which limits consideration being given to those matters falling within the subject-matter, scope and purpose for the Discrimination Act as discussed above.
53. Sub paragraph section (b) of section 109(3) was not relied upon but, in relation to sub paragraph (a), I observe that the need for the application to be made arises not in consequence of actions designed for the applicants’ own benefit but in consequence of the requirements of the laws of another country. Further, the fact of the exemption application before the Tribunal having been made in a detailed and comprehensive manner, including the proposal of conditions which are designed to ameliorate the impact of any exemption, does not suggest that there is any lack of acceptance by the applicants of the Act or any unwillingness to comply with it. Nor does the respondent’s opposition to the application show any failure of its obligation to promote an acceptance of it.
Section 28 Human Rights Act
54. The main purpose of the ACT HRA is to recognise fundamental civil and political rights in Territory law. In particular, it ensures that, to the maximum extent possible, all Territory statutes and statutory instruments are interpreted in a way that respects, protects and promotes the human rights set out in part 3 of the Act (see Explanatory Statement to the Human Rights Bill 2003).
55. The civil and political rights specified in the ACT HRA include those specified in section 8 as follows:
8Recognition and equality before the law
(1) Everyone has the right to recognition as a person before the law.
(2) Everyone has the right to enjoy his or her human rights without
distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal
protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
56. Section 28 of the ACT HRA specifies the extent to which limits may be imposed upon human rights. When originally enacted it provided:
28Human rights may be limited
Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
57. The purpose of section 28 when originally enacted was said in the Explanatory Statement to be to recognize that few rights are absolute and that limits may be placed on rights and freedoms. The section provided a standard against which to measure justifications for limits on human rights and was not intended to operate in a uniform way. Some rights such as the right not to be subjected to torture or cruel, inhuman or degrading treatment, were intended to be absolute but others were not. Whether a limitation was reasonable in respect of a person in a special legal position would fall for determination in each individual case. Whether a limit was reasonable in the sense described in section 28 depended upon whether it was proportionate to achieve a legitimate aim.
58. Section 28 was amended with effect from 18 March 2008 to add sub section 28(2). It requires that, in determining whether a limit is reasonable, “all relevant factors” must be taken into account including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
59. The factors specified in section 28(2) were said in the Explanatory Statement to reflect the well accepted principle in international law and comparable human rights jurisdictions of proportionality as the means of determining how human rights may be limited.
60. In Brown v Stott [2001] 2 WCR 817, one of the cases identified by the Explanatory Statement as an illustration of the proportionality concept, the Privy Council held that a limitation on the right to a fair trial, including the right against self-incrimination, was acceptable if it was reasonably directed towards a clear and proper public objective and represented no greater qualification than what was called for by the situation.
61. The High Court of Australia in Lange v. Australian Broadcasting Corp (1997) 189 CLR 520 at 562 formulated the test as follows:
“Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfillment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.”
62. The human right identified in this case, ie, equal recognition and equity before the law, is recognized by international conventions to which Australia is a signatory (see Articles 2 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination and Article 2 of the International Covenant on Civil and Political Rights. The nature of the right required by section 28(2)(a) of the ACT HRA is, therefore a right of fundamental importance and recognised as such by the applicants in their conduct of these proceedings.
63. It is, in my view, arguable that in assessing the importance of the purpose of the limitation that would be placed on that right by the grant of the exemption sought, as required by section 28(2)(b), the potential impact of the limitation proposed by the exemption sought by the applicants upon the employment opportunities that the applicants’ operations in the ACT afford as well as the commercial viability of those operations may not, by themselves, be sufficient to outweigh the harmful affects that would result from the grant of an exemption. It may be that those are consequences which the applicants and the community are required to accept as a cost of ensuring that human rights are protected.
64. More difficult, however, is the balance to be struck against issues affecting national defence and security. The elimination of discrimination based upon race and nationality may make a significant contribution to the avoidance of conflict and the requirement for security measures in consequence of it. National defence and security is, however, likely to be a more complex issue and unlikely to be addressed solely by that means. The measures adopted by the government of Australia for the defence of the nation and for securing the security of its citizens and the need for those measures are not, of necessity, matters about which informed findings can be made by the Tribunal so as to enable a balancing of those issues against the erosion of the human rights which the exemption sought would permit. It is to be remembered, however, that the evidence of neither Mr Jones nor Mr Haseman was challenged in these proceedings, save as to its sufficiency, and the Tribunal should, therefore, accept and act on it.
65. Clearly, any significant compromising of the defence and security of the nation is a matter of paramount importance. The fact that the ACT is a small component of the national community does not, in my view, enable it to ignore issues which affect the nation as a whole.
66. It was accepted by the respondent’s counsel, as I have already observed, that the conditions of exemption as proposed by the applicants were likely to be the least restrictive option reasonably open save for the matters which are addressed in paragraphs 32-35 above. In relation to those matters it would, in my view, be neither prudent nor responsible for the applicants to desist from making an application for an exemption on the basis that the need for it had apparently not arisen for a significant period. The evidence before the Tribunal shows that there is a significant potential for the Discrimination Act to be contravened without it. I note further, that in the course of the hearing, reference was made to a complaint of discrimination having been made by an employee of Raytheon which was apparently referred to the Tribunal but evidently not resolved by it.
67. It is also unrealistic, in my view, to regard diplomatic measures as being a means by which the need for an exemption might be avoided. The evidence shows that attempts by the governments of countries with close association with the United States for it to modify its laws regarding the protection of ITAR controlled material have not, to date, been successful. There is no basis for belief that the applicants would have greater prospect of success. I do not consider that there are less restrictive means reasonably available to achieve the purpose which the exemption seeks to achieve.
68. Having regard to the matters specified in section 28(2) I consider that the exemption would subject the human rights in issue to limits which are demonstrably justified in a free and democratic society.
Section 30 Human Rights Act
69. Section 30 of the ACT HRA was amended by the Human Rights Amendment Act 2008 with effect from 18 March 2008. It now provides:
30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
70. The Explanatory Statement, in introducing the amendment to section 30 said:
It clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006. It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza (2004) 2 AC 557 cited recently by the ACT Supreme Court in Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9.
71. The effect of section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is similar to that of Section 30 of the Human Rights Act. Their effect is to require the legislation to which they apply to be interpreted consistently with human rights subject to the qualifications that the requirement only extends “so far as it is possible” and the interpretation must be consistent with the purpose of the legislation. In granting Raytheon an exemption from the application of the Equal Opportunity Act 1995 (Vic) on 17 October 2007 (Case No.7 referred to above) the VCAT found justification for doing so on grounds of national security, a projected increase in jobs and the promotion of equity between Raytheon and its competitors. It is to be noted, however, that Her Honour, Judge Harbison stated:
21.I have advised the Applicants that on the next occasion that an application for exemption is made, the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 will be operative. By reason of this Act, the Tribunal in considering any further exemption application, will be required to interpret the relevant provisions of the Equal Opportunity Act in a way that is compatible with human rights, as those rights are defined in the Charter. International law and the judgments of domestic, foreign and international Courts and Tribunals relevant to a human right may all be considered when interpreting a statutory provision.
72. The decision of the House of Lords in Ghaidan v Godin-Mendoza, also referred to in the Explanatory Statement, dealt with the application of section 3 of the United Kingdom Human Rights Act 1998 (“the UK HRA”). Section 3(1) of that Act provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the (European Convention on Human Rights).
The Convention includes a provision that guarantees that the rights specified in it shall be received “without discrimination”.
73. In the result, in that case, the House of Lords held that legislation which was expressed so as to give protection to a person living with another person “as his wife or husband” should, by the application of section 3 of the UK HRA, be interpreted as including 2 people living as same sex partners.
74. Having regard to the specific reference made in the Explanatory Statement to Ghaidan’s case, it is instructive to have regard to the analysis of section 3 by their Lordships who constituted the majority in that case. The following statements, in particular, were relied upon by the respondent as demonstrating that section 30 of the ACT HRA was intended to have far-reaching effect:
Lord Nicholls said:
29.…It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may none the less require the legislation to be given a different meaning…
30.From this it follows that the interpretative obligation decreed by section3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.
31.On this the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of the statute, as distinct from the concept expressed in that language, should be determinative. Since section 3 relates to the “interpretation” of legislation, it is natural to focus attention initially on the language used in the legislation provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent.
32.From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of *572 the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation.
33.Parliament, however, cannot have intended that in the discharge of this extended interpretive function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament had retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, “go with the grain of the legislation”. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.
Lord Steyn said:
44. It is necessary to state what section 3(1), and in particular the word “possible”, does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word “possible” in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR. Thirdly, the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation.
49. *557 A study of the case law listed in the appendix to this judgement reveals that there has sometimes been a tendency to approach the interpretative task under section 3(1) in too literal and technical a way. In practice there has been too much emphasis on linguistic features. If the core remedial purpose of section 3(1) is not to be undermined a broader approach is required. That is, of course, not to gainsay the obvious proposition that inherent in the use of the word “possible” in section 3(1) is the idea that there is a Rubicon which courts may not cross. If it is not possible, within the meaning of section 3, to read or give effect to legislation in a way which is compatible with Convention rights, the only alternative is to exercise, where appropriate, the power to make a declaration of incompatibility. Usually, such cases should not be too difficult to identify. An obvious example is R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837. The House held that the Home Secretary was not competent under article 6 of the ECHR to decide on the tariff to be served by mandatory life sentence prisoners. The House found a section 3(1) interpretation not “possible” and made a declaration under section 4. Interpretation could not provide a substitute scheme. Bellinger is another obvious example. As Lord Rodger of Earlsferry observed “in relation to the validity of marriage, Parliament regards gender as fixed and immutable”: [2003] 2 AC 467, 490, para 83. Section 3(1) of the 1998 Act could not be used.
At [122] Lord Rodger said:
122. …Similarly, the key for what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with the convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form…
75. In Mr Erskine’s submission, in the absence of words of limitation on the exercise of the discretion conferred by section 109, the discretion could be exercised inconsistently with the human rights contained in the ACT HRA. It was possible, he submitted, for it to be re-interpreted in a manner that required the discretion to only be exercised in a way that was compliant with those rights. He relied upon section 30 of the ACT HRA and to the explanation given by the House of Lords in Ghaidan v. Godin Mendoza as to the effect of section 3 of the UK HRA in support of his submission.
76. On behalf of the applicants it was submitted that section 30 did not prevent the respondent from granting the exemption that may be inconsistent with purposes either of the Discrimination Act or the ACT HRA.
77. While the Explanatory Statement informs that the jurisprudence in Ghaidan v. Godin Mendoza is drawn upon in the drafting of section 30, the fact that it has not adopted the same language as section 3 of the UK HRA cannot be ignored. In particular, section 3 is not subject to the qualification contained in section 30 that any interpretation of the legislation to which it is applied is to be “consistently with its purpose”. That is, it seems to me, a matter of some significance having regard to the fact that section 3 of the UK HRA was clearly under active consideration in the drafting of section 30 and the Legislative Assembly chose to adopt a formula that contained a qualification not included in the equivalent United Kingdom provision.
78. The consequence of the difference in formulation is that, whereas section 3 of the UK HRA enables a court to modify the meaning of the legislation to which it is being applied bounded “only by what is possible” (to use the language of Lords Nicholls), there is an additional requirement imposed in the interpretation of legislation to which section 30 of the ACT HRA is being applied, ie, the interpretation must be consistent with the purpose of the legislation. The difference between the two provisions is also made clear by the statement of Lord Steyn that “section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the (convention)”. The reference to “purpose” in section 30 makes an obvious connection to section 139 of the Legislation Act with a consequential requirement to determine whether a human rights compliant interpretation would be consistent with the intention of the legislation. The absence of the purposive qualification in section 3 of the UK HRA, in my view, has more readily enabled the far-reaching consequence that the intention of the Parliament which enacted the legislation in question could be departed from so as to achieve a human rights compliant outcome.
79. That is not to say that the House of Lords construed section 3 of the UK HRA as without qualification designed to avoid the intrusion by a court into the role preserved to the legislature of enacting legislation. It expressed the qualification, however, in terms that the meaning of the legislation under consideration imported by the application of section 3 “must be compatible with the underlying thrust of the legislation being construed” (per Lord Nicholls); or “The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted” (per Lord Rodger); or that words implied in legislation to give effect to section 3 must ‘go with the grain of the legislation’ (per Lord Rodger). The adoption of such imprecise concepts is not, in my view, justified in the application of section 30 of the ACT HRA. The constraint expressly to be applied to section 30 is that any human rights compliant interpretation is to be made so far as it is possible to do so consistently with the purpose of the legislation to which it is being applied.
80. I have, in relation to the application of section 139 of the Legislation Act arrived at the conclusion that, in addition to the objects of the Discrimination Act specified in section 4, it is not its purpose to exclude all forms of discrimination and that in relation to the forms of discrimination to which it applies it confers a broadly-based discretion to exempt persons from the application of its provision. To restrict the operation of section 109 of the Discrimination Act in the manner proposed by the respondent would be to undermine the purpose which I have found to exist.
81. I conclude that it is not possible, consistently with the purpose of the Discrimination Act, to interpret it in a way that excludes from consideration the justification relied upon in this case for the grant of an exemption and that the applicants have demonstrated the justification for it.
82. The correct of preferable decision in this case is, therefore, to set aside the decision under review.
Further Directions
83. At the conclusion of the hearing the parties requested that the terms of any decision of the Tribunal be the subject of further submissions. I have given directions to enable them to do so and will consider them before determining what further decision should be made as required by section 44(1)(c) of the Administrative Appeals Tribunal Act 1989.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
______________________________________________________________________
PART A FILE NO: AT07/73
APPLICANT: RAYTHEON AUSTRALIA PTY LTD; AEROSPACE TECHNICAL SERVICES PTY LTD; AUSTRALIAN MARITIME SURVEILLANCE PTY LTD; AERONAUTICAL CONSULTING TRAINING AND ENGINEERING
RESPONDENT: ACT HUMAN RIGHTS COMMISSION
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR J KIRK
RESPONDENT: MR C ERSKINE AND
MR S RICEPARTY JOINED:
SOLICITORS: APPLICANT: ALLENS ARTHUR ROBINSON
RESPONDENT:
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT: ACT HUMAN RIGHTS COMMISSION
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 11 & 12 JUNE 2008 PLACE: CANBERRA
DATE OF DECISION: 24 July 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)COMMENT:
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