Re: Ascent Pty Ltd - [2024] QIRC 234

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Ascent Pty Ltd [2024] QIRC 234
PARTIES:	Ascent Pty Ltd (Applicant)
CASE NO:	AD/2024/39
PROCEEDING:	Application for exemption
DELIVERED ON:	23 September 2024
MEMBER: HEARD AT:	McLennan IC On the papers
ORDER:	1. The Orders are in the terms set out in Schedule A to this Decision.
CATCHWORDS: LEGISLATION:	INDUSTRIAL LAW – DISCRIMINATION – exemption – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption sought in relation to discrimination on the grounds of race – where the applicant offers professional engineering services, project management, and logistics support to the defence, intelligence and security industries – where the exemption is required to comply with the International Traffic in Arms Regulations – exemption granted Anti-Discrimination Act 1991 (Qld) s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s127 Human Rights Act 2019 (Qld), s 3, s 4, s 5, s 7, s 8, s 9, s 13, s 15, s 25, s 48, s 58 US International Traffic in Arms Regulations
CASES:	Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) [2008] QADT 34 Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 Raytheon Australia Pty Ltd (Human Rights) [2014] VCAT 1370 Re: Ipswich City Council [2020] QIRC 194 Re: Kalwun Development Cooperation Limited [2019] QIRC 141 Re: Leidos Australia Pty Ltd [2021] QIRC 229 Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) [2014] VCAT 1441 WBM v Chief Commissioner of Police [2010] 27 VR 409 WBM v Chief Commissioner of Police [2012] 43 VR 446 Wotton v State of Queensland (No 5) [2016] FCA 1457

Reasons for Decision

Introduction

By application filed on 28 May 2024, the Applicant applied under s 113 of the Anti-Discrimination Act 1991 (Qld) (the AD Act) for an order exempting the Applicant from ss 7(g), 14, 15, 15A, 124 and 127. The exemption is sought for a period of five years, insofar as those sections relate to the 'race' for employment, employees and contract workers.[1]
[1] Race is defined in sch 1 of the Anti-Discrimination Act 1991 (Qld) to include colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin.

The question for determination is whether the Applicant should be granted an exemption pursuant to s 113(1) of the AD Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) (the HR Act).

The exemption application

In the exemption application, the Applicant submits:
·The Applicant offers professional engineering services, project management, and logistics support to the Defence, intelligence and security industries.
·The Applicant is regularly engaged to support projects which are managed by organisations subject to United States law, in particular, the International Traffic in Arms Regulations (ITAR).
·The Applicant is also…

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: [2024] QIRC 234
Decision Date: 23 September 2024

CaseChat Overview and Summary

Ascent Pty Ltd sought an exemption from the Anti-Discrimination Act 1991 (Qld) in order to comply with the International Traffic in Arms Regulations, which it was necessary to do in order to offer professional engineering services, project management, and logistics support to the defence, intelligence, and security industries. The exemption was sought to permit discrimination on the grounds of race. The application was made to the Queensland Civil and Administrative Tribunal.

The Tribunal was required to determine whether the exemption should be granted. In making this determination, the Tribunal considered whether the exemption was necessary to comply with the International Traffic in Arms Regulations, and whether it was proportionate to the aim of ensuring that Ascent was able to continue to offer services to the defence, intelligence, and security industries. The Tribunal found that the exemption was necessary and proportionate, and so it was appropriate to grant the exemption.

The Tribunal granted the exemption for a period of 5 years from the date of the order, in accordance with s 113(6)(c) of the Anti-Discrimination Act. The Tribunal made an order in terms of Schedule A to this Decision.

Orders

Orders of the court

1. The Orders are in the terms set out in Schedule A to this Decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 113(6)(c) of the AD Act provides that an exemption "is to be granted for a specified period of not more than 5 years." I will grant the exemption for a period of 5 years from the date of the order. Conclusion For the forgoing reasons, I grant the exemption sought by the Applicant. Order I will make an order in terms of Schedule A of this decision.

Ratio Decidendi

Legal Principle Established

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