Re: Cobham Aviation Services Australia Pty Ltd - [2022] QIRC 326

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326
PARTIES:	Cobham Aviation Services Australia Pty Ltd (First Applicant) Cobham SAR Services Pty Ltd (Second Applicant) Cobham NAS Pty Ltd (Third Applicant) Surveillance Australia Pty Ltd (Fourth Applicant) Cobham Aviation Services Engineering Pty Ltd (Fifth Applicant) National Jet Express Pty Ltd (Sixth Applicant)
CASE NO:	AD/2022/33
PROCEEDING:	Application for exemption
DELIVERED ON:	19 August 2022
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 applicants are engaged in the provision of aviation services that include aerial maritime surveillance and search and rescue – where applicants require exemption to comply with US export control laws – 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 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 43 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 4 May 2022, the Applicants applied under s 113 of the Anti-Discrimination Act 1991 (Qld) (the AD Act) for an order exempting the Applicants from ss 7, 14, 15, 15A, 124 and 127. The exemption is sought for a period of five years, insofar as those sections relate to the 'race' of applicants 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 Applicants 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…

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: [2022] QIRC 326
Decision Date: 19 August 2022

CaseChat Overview and Summary

Cobham Aviation Services Australia Pty Ltd applied for an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) to enable compliance with United States export control laws, which necessitate discrimination on the grounds of race. The application was before the Queensland Civil and Administrative Tribunal. The applicants, engaged in aviation services including aerial maritime surveillance and search and rescue, sought the exemption to adhere to the requirements of the United States' export control laws, which restrict the involvement of non-US nationals in certain areas of the business.

The legal issues before the Tribunal included whether the activities of the applicants constituted discrimination on the grounds of race and, if so, whether an exemption under section 113 of the AD Act could be granted. The Tribunal had to consider the nature and extent of the discrimination required by the United States' export control laws and whether the exemption was necessary for the applicants to comply with those laws. Furthermore, the Tribunal needed to determine the appropriate duration of the exemption.

The Tribunal found that the activities of the applicants did constitute discrimination on the grounds of race. However, it was necessary for the applicants to comply with the United States' export control laws to provide the services they offered. The Tribunal held that granting the exemption was appropriate as it was necessary for the applicants to carry out their business. The Tribunal granted the exemption for a period of five years, the maximum period allowed under section 113(6)(c) of the AD Act.

The Tribunal made an order granting the exemption in the terms set out in Schedule A to the decision. The exemption allows the applicants to discriminate on the grounds of race in relation to their provision of aviation services for a period of five years.

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 Applicants. Order I will make an order in terms of Schedule A of this decision.

Ratio Decidendi

Legal Principle Established

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