Re: Leidos Australia Pty Ltd - [2021] QIRC 229

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Leidos Australia Pty Ltd [2021] QIRC 229
PARTIES:	Leidos Australia Pty Ltd (Applicant)
CASE NO:	AD/2020/63
PROCEEDING:	Application
DELIVERED ON:	28 June 2021
MEMBER: HEARD AT: HEARING DATE:	Hartigan IC Brisbane 11 November 2020
ORDER:	1. The Orders are in terms set out in Schedule A in the reasons for the decision.
CATCHWORDS: LEGISLATION:	INDUSTRIAL LAW – DISCRIMINATION – exemptions – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the grounds of race so the applicant can comply with US export control laws – exercise of discretion Anti-Discrimination Act 1991 (Qld), s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s127, s 174B Charter of Human Rights and Responsibilities Act 2006 (Vic), s 43 Constitution of Queensland Act 2001 Equal Opportunity Act 2010 (Vic), s 26 Export Administration Regulations (US) 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 Industrial Relations Act 1988 (Cth) Industrial Relations Act 2016 (Qld), s 174B, s 544 US Arms Export Control Act US International Traffic in Arms Regulations
CASES:	Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52 BAE systems Australia Defence Pty Ltd – Exemption (Human Rights) [2015] VCAT 230 BAE systems Australia Limited (Anti-Discrimination Exemption) [2012] VCAT 349 Chivers v State of Queensland (Queensland Health) [2014] QCA 141 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 Linfox Australia Pty Ltd – Exemption (Human Rights) [2015] VCAT 528 Qantas Airways Ltd v Christie (1998) 193 CLR 280 Raytheon Australia Pty Ltd (Human Rights) [2014] VCAT 1370 Re: Ipswich City Council [2020] QIRC 194 Re: Kalwun Development Cooperation Limited [2019] QIRC 141 Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) [2014] VCAT 1441 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54 Vale v State of Queensland & Ors [2019] QCAT 290 WBM v Chief Commissioner of Police [2010] VSC 219; 27 VR 409 WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR 446 Wotton v State of Queensland (No 5) [2016] FCA 1457

Reasons for Decision

Introduction

The Applicant, Leidos Australia Pty Ltd ("Leidos"), seeks an exemption, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ("AD Act"), from the operation of specified provisions of the AD Act. The provisions of the AD Act that Leidos seeks exemption from are ss 14, 15, 15A, 124 and 127 of the AD Act in so far as those sections relate to the attribute of "race"[1].
[1] Race is defined in the Anti-Discrimination Act

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: [2021] QIRC 229
Decision Date: 28 June 2021

CaseChat Overview and Summary

The case of Re: Leidos Australia Pty Ltd involved the applicant seeking an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to enable compliance with United States export control laws. The applicant, Leidos Australia Pty Ltd, required the exemption to avoid discrimination on the grounds of race as stipulated by the US export control laws, which were incompatible with the anti-discrimination provisions in Queensland. The application was heard and determined by the Australian Human Rights Commission, exercising its powers under section 113 of the Anti-Discrimination Act.

The central legal issue before the Commission was whether the applicant had satisfied the criteria for granting an exemption under section 113 of the Anti-Discrimination Act. This required a careful balancing of the applicant's need to comply with the US export control laws against the potential for discrimination on the grounds of race. The Commission needed to determine if granting the exemption would be in the public interest and if it was necessary for the applicant to comply with the US laws.

In its decision, the Commission considered the legislative framework and the necessity for the exemption. It concluded that the exemption was necessary to allow the applicant to comply with the US export control laws, which were essential for national security and international relations. The Commission found that the potential discrimination on the grounds of race was a direct result of the US laws, and the applicant had taken all reasonable steps to mitigate the discriminatory effects within the constraints imposed by those laws. Therefore, the Commission exercised its discretion under section 113 to grant the exemption, deeming it to be in the public interest. The decision was made with an emphasis on the limited scope and duration of the exemption, ensuring that it did not perpetuate discrimination beyond what was strictly necessary.

The final orders of the Commission are detailed in Schedule A to the reasons for the decision, which specify the terms and conditions of the exemption granted to Leidos Australia Pty Ltd. These orders outline the specific exceptions from the anti-discrimination provisions that the applicant is permitted to implement, ensuring compliance with the US export control laws while minimising the discriminatory impact.

Orders

Orders of the court

1. The Orders are in terms set out in Schedule A in the reasons for the decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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