SAAB AUSTRALIA PTY LTD - [2025] WASAT 23

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   SAAB AUSTRALIA PTY LTD [2025] WASAT 23
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   11 MARCH 2025
FILE NO/S:   EOA 35 of 2024
BETWEEN:   SAAB AUSTRALIA PTY LTD
Applicant

Catchwords:

Equal Opportunity Act 1984 (WA) (EO Act) - Exemption application - Race - Nationality - Application for exemption under s 135 of the EO Act from the operation of s 37, s 39 and s 49 of the EO Act - Applicant has defence contracts with Commonwealth - Applicant required to access defence technology from United States to meet contractual obligations - Applicant requires exemption to comply with contractual and legal obligations - International Traffic in Arms Regulations (ITAR) - Export Administration Regulations (EAR) - Defence Trade Controls Act 2012 (Cth) - Whether exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances - Exemption granted for 5 years - Terms and conditions imposed on grant of exemption

Legislation:

Corporations Act 2001 (Cth)
Defence Trade Controls Act 2012 (Cth), s 4, s 10(A)
Defence Trade Controls Amendment Act 2024 (Cth)
Electoral Act 1907 (WA), s 17
Equal Opportunity Regulations 1986 (WA), reg 24
Equal Opportunity Act 1984 (WA), Part VI, Part IX, s 3, s 4, s 37, s 39, s 49, s 50, s 50(d), s 51, s 52, s 69, s 70, s 71, s 72, s 73, s 74, s 80, s 135, s 135(1), s 135(2), s 135(3), s 135(6), s 136(1), s 136(2), s 137
Export Administration Regulations (US)
International Traffic in Arms Regulations (US), s 120.51, s 126.1, s 126.18
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application for exemption granted

Category: B

Representation:

Counsel:

Applicant

N/A

Solicitors:

Applicant

Minter Ellison, Adelaide

Case(s) referred to in decision(s):

ASC Pty Ltd [2024] WASAT 39
BAE Systems and Commissioner for Equal Opportunity [2019] WASAT 79
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Cobham Aviation Services Australia Pty Ltd [2023] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Jet Aviation Australia Pty Ltd [2024] WASAT 122
Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111
Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266
Thales Australia Ltd and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 4 September 2024, Saab Australia Pty Ltd (Saab) made an application to this Tribunal under s 135(1) of the Equal Opportunity Act 1984 (WA) (EO Act) seeking an order granting an exemption from the operation of s 37, s 39 and s 49 of the EO Act.
Saab has contractual arrangements with the Commonwealth and other entities to develop technology-based products and services for military defence and security, including combat management systems.
To meet its contractual obligations, Saab is required to access defence technology from the United States of America (US). I will refer to this technology as Controlled Materials. To access this technology, Saab has entered into agreements that require compliance with certain legislation enacted in the US including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR).
The ITAR and EAR impose restrictions on who can access Controlled Materials based on nationality. This means that to comply with its contractual obligations, and with the ITAR and EAR, Saab is required to request information about nationality from existing and potential employees and contractors who may require access to this technology. Saab may need to make decisions based on that information including potentially preventing or restricting access of persons of certain nationalities to defence technology controlled by the ITAR and EAR.
In addition, the Commonwealth has recently amended the Defence Trade Controls Act 2012 (Cth) (DTC Act) by enacting the Defence Trade Controls Amendment Act 2024 (Cth). Section 10A of the DTC Act makes it an offence to supply controlled defence-related goods and technology to a 'foreign person'. This means that Saab will also need to collect information concerning nationality from its workers to ascertain whether they can access defence-related goods and technology to ensure it does not contravene the DTC Act.
However, s 37 and s 39 of the EO Act make it unlawful to refuse to employ job applicants, employees, and contract workers or to prevent an otherwise qualified employee or contract worker from undertaking certain work on the ground of their race, ethnic or national origin or nationality.
Further, s 49 of the EO Act makes it unlawful to require job applicants, employees, and contract workers to provide information about their race, ethnic or national origin or nationality.
Saab requires an exemption under s 135 of the EO Act to be able to:
•request information from potential and current employees and contractors about their nationality;
•take a person's nationality into account in determining if they should be offered work or if they should participate in work involving Controlled Materials;
•maintain records about nationality of employees and contractors who have access to Controlled Materials;
•advertise positions or inform applicants for positions that they may be adversely affected by ITAR, EAR or DTC Act controls depending on their nationality;
•ensure Controlled Materials are not disclosed to prohibited persons, or limit employees or contractors from having access to Controlled Materials in the performance of their work;
•disclose information concerning a person's nationality to a US company holding an export authorisation, the US Department of State (for the ITAR) and Department of Commerce (for the EAR), if the disclosure is required for Saab to receive Controlled Materials; and
•similarly, to disclose that information to the Commonwealth if it is necessary to comply with the DTC Act.
I will generally refer to these as the Proposed Exempted Activities.
Section 135 of the EO Act gives the Tribunal a broad discretion, subject to the objects of the EO Act, to grant an exemption from the operation of specified provisions of specified parts of the EO Act.
For the reasons set out below, I have decided to exercise discretion to grant Saab an exemption from the operation of s 37, s 39 and s 49 of the EO Act for a period of five years, subject to conditions. The orders, and my reasons for making them, are set out below.

The issues

The issues I must determine are:
(1)Whether I should grant the exemption sought by Saab.
(2)If I decide to grant the exemption, whether it should be subject to any conditions or limitations.
(3)If I decide to grant the exemption, the length of time it should be granted for.
In deciding the first issue, whether I should grant the exemption, I have had regard to several considerations which I explain below.

Procedural overview

On 26 September 2024, the Commissioner lodged an affidavit confirming that he did not support or oppose the application and confirming that he did not wish to remain as a party to this proceeding.
Pursuant to reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity (Commissioner) is a party to an application unless the Commissioner lodges an affidavit with the Tribunal setting out the reasons why the Commissioner does not wish to be a party to the application.
On 4 October 2024 I made programming orders at a directions hearing, including that the Commissioner was no longer a party to this proceeding.
Section 135(3) of the EO Act provides that the Tribunal 'shall cause notice of an application for an exemption … to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct'.
I therefore also ordered that Saab place an advertisement of the application in the Public Notices section of the The West Australian newspaper by no later than 26 October 2024, so that if any interested person wished to be joined as a party or to make submissions, they could notify the Tribunal in writing.
I also made orders that:
(a)by 26 October 2024, Saab was to send a notice of the application to each of its Western Australian employees and contractors and place the notice on its website up to and including 9 November 2024; and
(b)by 20 November 2024, Saab was to file with the Tribunal an affidavit with annexures to confirm it had complied with the advertising and notice requirements and to provide any further submissions or comments it had received in response to the application and the notice of the application.
On 15 November 2024, Mr Andrew Giulinn, the Head of Ethics and Compliance for Saab, lodged an affidavit with annexures to confirm that the orders I made concerning the advertising and notices had been complied with.
In that affidavit, Mr Giulinn also confirmed that Saab had received five responses from workers engaged in Western Australia. He summarised those responses as follows:[1]
(a)three of the workers were seeking to better understand why they were receiving the email. Those employees were advised that the email was sent to all workers in Western Australia pursuant to a requirement of the tribunal, and was not specifically directed at them. This satisfied their concerns;
(b)one of the workers wanted to clarify that he only needed to be a party to the exemption if he objected to it. [The People and Culture representative, based in SAAB's Western Australian office] confirmed this understanding was correct. The worker confirmed he did not propose to take any further action; and
(c)one of the workers who responded asked some general questions about the interaction between the export controls and the Equal Opportunity Act 1984 (WA) and sought clarification about why he, in particular, was required to apply for an exemption. He was advised that the exemption application had been made by Saab, did not personally relate to him, and that the email was sent to all workers engaged by Saab in Western Australia.
[1] Mr Andrew Giulinn, Affidavit dated 15 November 2024, para 17.
I observe that these comments were not substantive and involved the workers seeking clarifications or asking general questions.
The Tribunal did not receive any applications for interested persons to be joined as parties and did not otherwise receive any submissions.
I am therefore satisfied that persons who may have an interest in the proceeding have had an opportunity to be joined, or to make submissions or comments.
Section 136(1) of the EO Act provides that no later than one month after it has made a s 135 decision, the Tribunal must publish the decision and its reasons, including its findings of fact material to the decision, and a summary of the evidence on which those findings were based. A failure to do so does not, however, affect the validity of the decision: s 136(2) EO Act.
On 22 November 2024, I held a further directions hearing. I ordered that Saab was to file a copy of the exemption they were seeking and any further evidence in support of their application for an exemption by 11 December 2024.
On 11 December 2024, Saab filed further written submissions which provided further details about the length of the exemption sought, and addressing several of the factors relevant for the Tribunal to consider which were set out in Cobham Aviation Services Australia Pty Ltd [2023] WASAT 21 (Cobham) and Jet Aviation Australia Pty Ltd [2024] WASAT 122 (Jet Aviation).

Determination on the documents

On 11 December 2024, I ordered that, subject to any other order the matter was to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). I was satisfied that it was appropriate to do so, with Saab also having agreed that it was appropriate to determine the application on the documents.
The documents I have had regard to are as follows:
(a)The application to the Tribunal made by Saab on 4 September 2024 with:
(i)an attached 'Application for Grant of Exemption'; and
(ii)an affidavit of Mr Andrew Giulinn in support of application for exemption from certain provisions of the EO Act sworn on 28 August 2024 with exhibits AG-1 to AG-11 (First AG Affidavit). Those exhibits comprised:
(1)Extracts from six agreements and contracts Saab is a party to which require compliance with the ITAR, EAR and/or the DTC Act (AG-1 to AG7);
(2)Saab's Code of Conduct (AG-8);
(3)Respect in the Workplace Policy (AG-9);
(4)Grievance Policy (AG-10); and
(5)Whistleblower Policy (AG-11).
(b)Affidavit of Dr John Craig Byrne, Commissioner for Equal Opportunity dated 25 September 2024;
(c)Affidavit of Mr Andrew Giulinn sworn 15 November 2024 with exhibits AG-1 to AG-5 (Second AG Affidavit). The exhibits comprised evidence to show that the orders made by the Tribunal (including advertising the application in The West Australian newspaper, an email sent to employees and notice of the application on Saab's website) on 4 October 2024 had been complied with;
(d)Supplementary Submissions Regarding Application for Exemption filed on 11 December 2024 with attached 'Schedule 1 – Text of the Exemption Sought'; and
(e)Affidavit of Mr Andrew Giulinn in support of application for exemption from certain provisions of the EO Act dated 11 December 2024 (Third AG Affidavit).

Legislative Framework

Recently, I outlined the legislative framework in my reasons for decision in Jet Aviation. I have repeated what I said in those reasons below because the same framework applies to the current application by Saab.

Objects

The objects of the EO Act are set out in s 3, which provides:
The objects of this Act are —
(a)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and
(b)to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; 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 equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.

Unlawful discrimination on the ground of race

In this application, Saab has applied for an exemption from the operation of s 37, s 39 and s 49 of the EO Act which concern unlawful discrimination on the ground of 'race'.
'Race' is defined in s 4 of the EO Act to include national origin or nationality. The definition of 'race' is as follows:
race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act.
Section 37 of the EO Act makes it unlawful to discriminate against job applicants and employees on the ground of race. The relevant parts of s 37 of the EO Act provide:
(1)It is unlawful for an employer to discriminate against a person on the ground of the race of that person —
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining 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 on the ground of the race of the 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 benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Section 39 makes it unlawful to discriminate against contract workers on the ground of race. It provides:
It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's race —
(a)in the terms or conditions on which the principal allows the contract worker to work; or
(b)by not allowing the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(c)by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d)by subjecting the contract worker to any other detriment.
Section 49 of the EO Act makes it unlawful to require a person to provide information about their race. It provides:
Where, by virtue of a provision of Division 2 or this Division, it would be unlawful in particular circumstances for a person to discriminate against another person, on the ground of the other person's race, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by way of completing a form or otherwise) that persons of a different race would not, in circumstances that are the same or not materially different, be requested or required to provide.

Specific exceptions

Despite the objects of the EO Act, when enacting the EO Act, the legislature included exceptions in recognition that in some circumstances discrimination may be justified. For example, s 50, s 51 and s 52 of the EO Act provide for specific exceptions whereby conduct would not be unlawful discrimination based on race.
Section 50 of the EO Act, titled 'Genuine occupational qualifications' allows discrimination in work or employment in circumstances including where race is necessary for the performance of that work. It provides:
Nothing in this Part applies to or in respect of any work or employment where that work or employment involves any one or more of the following —
(a)participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity; or
(b)participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity; or
(c)working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity; or
(d)providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.
Section 50(d), as well as s 51 of the EO Act provide for 'positive discrimination' to promote the welfare or equality of persons of a particular race. Section 51, titled 'Measures intended to achieve equality' provides:
Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is —
(a)to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or
(b)to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits.

Section 52 of the EO Act, titled 'Citizenship', provides an exception where a public authority specified in Part IX of the EO Act can discriminate between Australian citizens and persons who are not Australian citizens in accordance with a law of the State. It provides:
This Part does not apply to or in respect of any act of an authority to which Part IX applies being an act performed pursuant to a Western Australian law that discriminates between Australian citizens and persons who are not Australian citizens.
By way of illustration, in Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (ADI), Martin CJ, gave the example of s 17 of the Electoral Act 1907 (WA) which provides that a person must be an Australian citizen to be enrolled to vote in a state election, and explained that, 'the legislature considers that important right should be restricted to those who owe allegiance to this country by reason of their citizenship': at [66].

General exceptions

There are also general exceptions in Part VI of the EO Act. The general exceptions are so expressed because they are applicable to discrimination on any of the grounds in the EO Act. They include:
(a)acts done to comply with an order of the Tribunal or a court: s 69;
(b)acts that would allow charitable benefits to be conferred on a class of person: s 70;
(c)the admission of persons as members of a voluntary body or the provision of benefits, facilities or services to members of the body: s 71;
(d)the acts or practices of religious bodies including the ordination or appointment of persons as priests or ministers: s 72;
(e)the establishment of educational instructions for religious purposes: s 73; and
(f)the provision of housing accommodation for aged persons: s 74.

Tribunal may grant an exemption

Section 135(1) of the EO Act provides that an application can be made to grant a person an exemption from certain provisions. It provides:
The Tribunal may, on application by a person, by order, grant to the person an exemption from the operation of a specified provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC.
A 'person' is defined in s 5 of the Interpretation Act 1984 (WA) to include a company.
If a person has already been granted an exemption, they can apply for a further exemption under s 135(2) of the EO Act which provides:
The Tribunal may, on application by a person to whom an exemption from a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC has been granted under subsection (1), by order, grant to the person a further exemption from the operation of that provision.
Section 137 of the EO Act describes that the effect of an exemption order is that an act that would otherwise be unlawful under the relevant Parts of the EO Act will not be unlawful. It provides:
Nothing in Parts II, IIAA, IIA, IIB, III, IV, IVA, IVB and IVC renders it unlawful for a person who has been granted an exemption from a provision of one of those Parts, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the order by which the exemption was granted.
The EO Act also provides for the duration and terms upon which an exemption can be granted in s 135(6). It provides:
(6)An exemption or further exemption —
(a)may be granted subject to such terms and conditions as are specified in the order; and
(b)may be varied either on the application of the person to whom the exemption is granted or at the instance of the Tribunal; and
(c)may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the order; and
(d)shall be granted for a period specified in the order not exceeding 5 years.

The Scope of the Tribuna's discretion to grant an exemption

In ADI, Martin CJ, with whom Wheeler JA and Pullin JA agreed, outlined the 'clear and uncontroversial' general legal principles governing the scope of the Tribunal's discretion to grant an exemption.
Firstly, a discretion that affects the rights of persons will not be construed by the courts as 'absolute and unfettered' unless Parliament has used plain words to express that intent (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (FAI) at 368, per Mason J cited in ADI at [44]). Thus, although the scope of the Tribunal's discretion in s 135 is broad, it is nevertheless constrained.
Secondly, the scope of the Tribunal's discretion is constrained by the policy objectives, and the objects, scope and purpose of the Act (FAI at 368, per Mason J Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997 at 1030; and Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [58] cited in ADI at [44] - [46]; ADI at [47] - [48] per Martin CJ). In other words, 'it was the intention of the Parliament to confer upon the Tribunal a discretion which was constrained only by the objects, scope and purpose of the Act read as a whole' (ADI, at [44] - [47] per Martin CJ).
The 'objects, scope and purpose' of the EO Act and the discretion of the Tribunal is 'to be ascertained from a construction of the Act as a whole' (ADI, at [55]). As Martin CJ explained in ADI at [56], the EO Act is structured to prohibit certain types of discriminatory conduct by reference to specific grounds, and although there is significant overlap, the ambit of the conduct prohibited under different grounds is not identical. For example, the ambit of prohibitions on conduct that might be discriminatory on the ground of sex is not identical to the ambit of conduct prohibited because it is discriminatory on the ground of race. Martin CJ explained, at [58] - [59]:
58So, in summary, there are a range of prohibitions specified by reference to the ground of discrimination, qualified by exceptions which are specifically referrable only to discrimination on that particular ground. There are also general exceptions which apply irrespective of the ground of discrimination. If none of the specific or general exceptions apply, the Tribunal is given a general power of exemption, unconstrained by anything other than the objects, scope and purpose of the Act and the temporal limitation upon the operation of the exemption.
59In this context, the legislative object to be served by the conferral of a general power of exemption upon the Tribunal is, I think, clear. The Act does not prohibit all discriminatory conduct. Rather, the ambit of the conduct prohibited depends upon the ground of discrimination. Nor does the Act prohibit all conduct of a particular kind because it is discriminatory on a particular ground. Rather, the Act provides both specific and general exceptions to its prohibitions. The legislature has thereby recognised that in a number of circumstances, which it has identified both specifically by reference to the particular ground upon which the discrimination is practiced, and generally, discriminatory conduct can be justified and should not be prohibited. And against the likely contingency that the Parliament has not been able to anticipate all the circumstances in which discriminatory conduct might nevertheless be justifiable, it has empowered the Tribunal to grant exemptions in particular cases.
In summary, it is therefore necessary to identify the ambit of the conduct that is prohibited concerning the specific ground for which the exemption is sought. I have endeavoured to do this by outlining the provisions for which the exemption has been sought, namely s 37, s 39 and s 49, as well as the exceptions in s 50, s 51 and s 52 of the EO Act.
Thirdly, the Tribunal will need to undertake a balancing exercise when considering whether to grant an exemption. With reference to the decision of Morris J, sitting as the President of the Victorian Civil & Administrative Tribunal in Boeing Australia Holdings Pty Ltd (AntiDiscrimination Exemption) [2007] VCAT 532 (Boeing) in ADI, at [74], Martin CJ described the balancing exercise as 'a process whereby the Tribunal weighs the advantages, both public and private which would flow from the grant of exemption, against the detriment which flows from the discriminatory conduct'.
Fourth, the Tribunal is at risk of error if it constrains its discretion 'by reference to limited and particular questions, which are to be applied to every case' because to do so exposes the Tribunal to the 'risk of excluding from consideration matters which are relevant to the exercise of the discretion because they fall within the objects, scope and purpose of the Act, but not within the … questions enunciated by the Tribunal' (ADI at [49] - [54]).
With that caveat in mind, I observe that in ASC Pty Ltd [2024] WASAT 39 (ASC), President Pritchard (as she then was) summarised some of the considerations that the Tribunal had applied in similar cases to that of ASC.
Although ASC concerned an application under s 135(2) of the EO Act for a further exemption from s 37, s 39 and s 49, the factual circumstances were like those in this application by Saab. This was because the applicant in ASC had contracted to maintain and provide training for the use of Collins Class Submarines for use in the Royal Australian Navy and was subject to the same US import and export control laws and regulations as Saab.
In ASC, President Pritchard observed, at [29]:
29In the exercise of a similar discretion under equal opportunity legislation applicable in other jurisdictions, a variety of considerations may be taken into account, in determining whether an exemption should be granted. These illustrate the variety of considerations which the Tribunal may take into account, in weighing up whether to grant an exemption under s 135 of the EO Act. Those considerations have included:
•whether the exemption sought is necessary;
•whether the proposed exemption is reasonable and necessary having regard to the reasons for which it is sought;
•whether there are non-discriminatory ways of achieving the purposes for which the exemption is sought;
•whether the proponent of the proposed exemption has taken reasonable steps, or is able to take any reasonable steps, to avoid or reduce the adverse effect of a particular act or action before seeking the exemption;
•the public and private impacts of the grant of the proposed exemption;
•whether the exemption is in the community interest; and
•whether any other persons or bodies other than the applicants support the application.
(Footnote omitted)
Having regard to the facts and circumstances of this application by Saab, and the evidence before me, I am satisfied that the considerations identified by Pritchard J in ASC are relevant for me to consider in this application.

Factual findings

I make the following factual findings based on the information before me, and particularly the First AG Affidavit (and its exhibits) and the Third AG Affidavit (and its exhibits).
Saab is a proprietary company limited by shares which is registered under the Corporations Act 2001 (Cth).
Saab is part of the global Saab group, which is one of many companies worldwide that are ultimately owned by the Swedish company, Saab AB. It was founded in 1937 with the primary aim of providing military aircraft for Sweden.
Saab has undergone several name changes, most recently on 12 November 2013 when the name of Saab Systems Pty Ltd was changed to the current name of Saab Australia Pty Ltd.
Saab has operated in Australia since 22 August 1988 when it was first incorporated as Honoria Pty Ltd. It began operations in South Australia to deliver a contract to build and integrate the combat management system for the ANZAC Class frigates which were being designed and constructed at that time.
The company's Australian operations are technology-focused. It supplies products and services for military defence through to security for critical and high-security facilities.
Saab's military defence involvement is predominantly through its Naval Combat Systems business line. The 9LV Combat Management System (CMS) is Saab's main product in Australia, and Saab's main customer is the Royal Australian Navy (RAN).
Saab has a Western Australian office in Rockingham. It was established in 2009. The facility in Rockingham was recently expanded. Saab has 72 employees in Western Australia, including one contract employee.
Saab also has staff working in Commonwealth facilities in the Rockingham area as part of ongoing support arrangements for contracts with the Commonwealth involving defence technologies.
Saab has provided evidence concerning major defence contacts it has with the Commonwealth. These include contracts with the Commonwealth to perform multiple projects and activities in relation to the CMS on different classes of RAN ships, and to provide support and maintenance services and to undertake other related work concerning air defence and radar and anti-tank weapons systems for the Australian Army.
Saab is also a party to contracts with other companies, where the Commonwealth is the end-user or ultimate beneficiary, which involve defence technologies that are subject to export control requirements including the ITAR and the EAR. By way of general summary, these contracts concern Saab providing design, support and maintenance services involving defence technologies.
Saab's contracts with the Commonwealth are of a lengthy or ongoing nature. For example, one contract has been ongoing for eight years and will continue to be ongoing until a certificate of final acceptance is issued by the Commonwealth. Another contract was signed in 2024, replacing a previous arrangement in place since 2015. The current term is four years, with two extensions of two years available. Another agreement with the Commonwealth was signed in 2022 for a term of 10 years; another was signed in 2023 for five years; another was signed in 2020 and extends until 2028; and another expires in 2025. The contracts variously provide for further extensions or renewal options.
Saab's contracts with other companies where the Commonwealth is an end-user or beneficiary have terms that will expire in July 2025; in 2026 with further follow-on contracts expected; and in 2030. It is anticipated that this latter contract will be delivered sooner than 2030, but it will extend beyond 2025.
The US government has imposed regulatory control through the ITAR and EAR to ensure that the movement of defence-related technology is consistent with national security interests and international obligations. I referred to this technology in the 'Introduction' above as Controlled Materials.
The ITAR and EAR restrict the movement (including import and export) of Controlled Materials, deemed to be 'Defense Articles' and 'Defense Services' including technical data, materials, equipment, information and technology (including software), of both US origin and foreign produced items derived from US origin materials. The EAR also restricts the import or export of 'dual use' items or information which are items that can be used for military or defence purposes, but which also have other uses.
Under the ITAR, all receiving parties of Controlled Materials must be named on US government approval documentation. Saab is not authorised to receive, hold, access or use Controlled Materials unless it is named on an authorisation issued by the US government. That authorisation will also include a restriction that only eligible employees can hold, access and use Controlled Materials. The specific authorisation may contain mandatory clauses required by the US government subjecting Saab to the ITAR, may be accompanied by an ITAR-specific agreement, or may apply by virtue of the provisions of the ITAR itself. Saab has provided the Tribunal with relevant extracts of this kind from six of its export authorisations which show it is subject to these mandatory clauses. Saab is an authorised recipient of Controlled Materials in almost 140 ITAR export authorisations.
The restrictions on who can access Controlled Materials continue to apply through the lifespan of the materials, and in most cases, regardless of the time that passes since the export of the materials from the US. The export controls placed on Controlled Materials are extraterritorial.
The ITAR sets out restrictions and prohibitions on persons of specified nationalities from having access to Controlled Materials.
Section 126.1 of the ITAR contains a list of proscribed countries for which the US government has a policy of export denial.
The ITAR also restricts the 're-export' of Controlled Materials. Section 120.51 of the ITAR defines a 're-export' to include 'any release outside of the US of technical data to a foreign person is deemed to be a re-export to all countries in which the foreign person has held or holds citizenship or holds permanent residency'.
Under the ITAR and EAR, these restrictions extend to access to Controlled Materials by a 'Dual National' (who holds Australian citizenship and the citizenship of another country other than the US); or a 'Third Country National' (who holds nationality of a country or countries other than Australia or the US).
For Saab to perform its contractual obligations, Saab personnel are required to access or receive information or materials including Controlled Materials from the US. For example, one of the combat systems Saab works with is of US origin and is therefore controlled by the ITAR. Another example is that the CMS, which is Saab's flagship product, interfaces with other defence technologies on the vessel that have a US origin or source, which brings them under the control of the ITAR and EAR.
Further, Saab is subject to s 10A of the DTC Act, which makes it an offence to supply controlled defence-related goods and technology to a 'foreign person'. Section 4 of the DTC Act defines a 'foreign person' is defined to mean 'a person other than an Australian person'. The definition of 'Australian person' includes Australian citizens and permanent residents.
Non-compliance with the ITAR and EAR will subject Saab to significant civil and criminal fines and penalties, seizure and forfeiture of Controlled Materials, debarment from further defence contracts including the receipt, use and on-transfer of Controlled Materials and loss of company security clearances.
The penalty for non-compliance with the DTC Act is imprisonment for 10 years or a fine comprising 2,500 penalty units, or both.
Given the nature of Saab's business operations involving military defence technology, compliance with export controls, including the ITAR, EAR and DTC Act are fundamental to its business. It would be difficult or impossible for Saab to continue to operate in the Australian defence and military industry without the exemption in place, and without it there would be a risk that the US government may refuse or revoke authorisations where Saab is involved.

Should the exemption be granted?

Is the exemption necessary?

Saab's contractual obligations require it to access defence technology sourced from the US. This technology is subject to the ITAR, EAR, and more recently the DTC Act. Saab has also entered into agreements and is named on numerous export authorisations which make them subject to the ITAR and the EAR.
To comply with these legal and contractual obligations, Saab needs to be able to engage in the Proposed Exempted Activities including requesting information about the nationality of its existing personnel, as well as potential employees or contract workers. Saab also needs to be able to keep records of information concerning nationality, and to make decisions based on that information such as to restrict or prevent some workers or contractors from having access to Controlled Materials. If Saab did not do so, it would be unable to determine whether an individual is permitted to access the Controlled Materials, placing Saab at risk of contravening these laws, agreements and authorisations. This could result in substantial penalties, both civil and criminal, and potentially a loss of the use of the technology.

I accept Mr Giulinn's evidence that if the exemption was not granted it would be difficult, if not impossible, for Saab to complete its contractual obligations with the Commonwealth and to continue to operate in the Australian defence and military industry. However, the conduct that Saab needs to engage in to comply with those legal and contractual obligations would contravene s 37, s 39 and s 49 of the EO Act, unless an exemption is granted under s 135.
There are no specific or general exceptions in the EO Act that Saab could rely upon instead of applying for the s 135 exemption.
I agree that the s 135 exemption is the only means by which Saab can continue to carry out its contractual obligations and comply with the ITAR, EAR and DTC Act without engaging in prohibited discrimination. I find that the exemption is necessary.

Is the exemption reasonable and necessary having regard to the reasons for which it is sought?

Saab requires its workers to undertake mandatory training on discrimination, bullying and harassment upon commencement, and regularly thereafter through Saab's annual Mandatory Learning Program. This training includes Saab's Code of Conduct which sets out Saab's expectations in relation to discrimination, bullying and harassment. Saab also has a Respect in the Workplace Policy, which addresses discrimination and equal opportunity, bullying and harassment, as well as a Grievance Policy for dealing with complaints in these areas.
I am satisfied that Saab recognises the importance of protections from discrimination afforded under the EO Act and appreciates that but for the grant of the exemption, the Proposed Exempted Activities may amount to discrimination which the EO Act seeks to prohibit. Saab has therefore sought to draft the exemption on terms that go no further than to achieve compliance with its contractual and legal obligations, including under the ITAR, EAR and DTC Act, and which cause the least interference with the protections granted by the EO Act while allowing Saab to operate its business.
These factors suggest, and I am satisfied, that the exemption sought is reasonable and necessary in the circumstances.

Are there non-discriminatory ways of achieving the purposes for which the exemption is sought?

As I explained above, there are no specific or general exceptions in the EO Act that would assist Saab, other than an exemption being granted under s 135.
A possible non-discriminatory means by which Saab could comply with its legal and contractual obligations is that a request could be made in relation to a particular ITAR export authorisation to have the US Government specifically approve people with a particular nationality or specifically approve a particular person.
However, the evidence of Mr Giulinn is that the approval of a particular person can take up to nine to 15 months and may not be successful.
I agree that requests of this nature are not practical or feasible, given that there are already 140 ITAR export authorisations on foot, and some obligations are included in the ITAR itself which would apply generally. There would therefore be little to no practical effect in making such a request. Further, before such a request to the US government could be made, the individual would have to be asked to provide information about their nationality and that information would be shared with the US government which would contravene the EO Act.
As I discussed in Jet Aviation, having an Australian Governmentissued Security Clearance will, due to an exemption in s 126.18 ITAR, enable a person to access a Controlled Technology if it is 'unclassified', but the exemption does not apply to Controlled Items that are 'classified'. The exemption in s 126.18 of the ITAR only applies to unclassified Controlled Materials where the person has an Australian Government-issued Security Clearance. Although Saab has included a condition in the terms of its proposed exemption that the exemption will only apply if exemptions, including under s 126.18 are not applicable, s 126.18 will not assist where Saab personnel require access to both US classified and unclassified Controlled Materials to fulfil its contracts with the Commonwealth.
Overall, although there appear to be non-discriminatory ways of achieving the purpose of the exemption, (namely making a request to the US government to approve people with a particular nationality or a particular person or relying on the exemption in s 126.18 of the ITAR), these are likely to suffice in only limited circumstances.

Is the exemption in the public interest?

Saab submitted that if the exemption was not granted, it could compromise the national interest by limiting Saab's capability to deliver goods and services to meet Australia's defence needs in the future. Saab has numerous contracts for the provision of defence technology to the Commonwealth, including to the RAN, or where the Commonwealth is a beneficiary or end-user, and to provide ongoing support and maintenance associated with that technology. I accept that Australia's defence capabilities are enhanced by having access to Controlled Materials and that the loss of access to those technologies would be detrimental to Australia's national security interests.
The public interest is served by consistency and predictability in the granting of exemptions in similar circumstances, including for other companies that have had to comply with the ITAR and EAR. Similar exemptions to those sought by Saab have been granted in Western Australia including in Jet Aviation; Cobham; Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111; BAE Systems and Commissioner for Equal Opportunity [2019] WASAT 79; Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222; Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266.
Further, the public interest is also served by consistency and predictability in the granting of similar exemptions to those granted to Saab in other States and Territories. In this regard, Saab also provided this Tribunal with similar exemptions that had been granted to it in other Australian states, namely in Queensland, South Australia and the Australian Capital Territory.
On balance, I find that the public interest favours the grant of the exemption.

The public and private impacts of the grant of the proposed exemption

There is some overlap with this exemption and the public interest exemption. As outlined above, Australia's defence capabilities and therefore national security is enhanced by having access to Controlled Materials which is in the public interest.
There is also some overlap with whether the exemption is necessary, and reasonable. Saab submitted that if the exemption is not granted, it would be at risk of significant financial penalties for breaches of contractual and security obligations and being at risk of committing an offence if it breaches the DTC Act. As I have discussed above, I accept this is a likely possibility.
Saab also submitted that it would also be difficult for it to obtain future Commonwealth contracts and operate in the Australian and military industry if the exemption was not granted. Further, Saab submitted that if the exemption is not granted, the progress and completion of significant Australian defence projects may be delayed. I also accept that these are likely consequences if the exemption is not granted, because Saab could lose access to the Controlled Materials by way of seizure and forfeiture of the Controlled Materials if it is unable to ascertain the nationality of persons having access to them.
Saab has also said that if the exemption is not granted, it will suffer substantial financial and employment loss. Saab submitted that there may be an adverse impact on the Western Australian economy and employment opportunities for Western Australians, as well as skills and expertise relevant to the Western Australian defence industry. Saab has 72 employees, including one contract worker, in Western Australia. Saab has submitted that it will be unable to continue to employ some or all these employees in Western Australia if the exemption is not granted. I do not have any evidence about the value of the contracts, but observe that the contracts are numerous, and are for lengthy terms involving the development, supply and maintenance of military technology to the Commonwealth, including the RAN. I therefore accept that a refusal to grant the exemption may have broader economic and employment effects because if Saab is unable to comply with its legal and contractual obligations, or if it is subject to fines for breaches of the ITAR, EAR or DTC Act, there may be a detrimental economic impact to the company's business, which may in turn affect the security of employment of Saab's 72 Western Australian employees.
The public and private advantages which would flow from the grant of exemption, must be balanced against the detriment which flows from the discriminatory conduct (Boeing, ADI). The following remarks from Deputy President Glancy (now President Glancy) in Cobham, at [97], are relevant:
The requirement for employees and contract workers and applicants for employment or contract work to provide information about their nationality, country of birth and past and current citizenship is unlikely to cause much detriment in and of itself. Any detriment will occur from the use of that information to exclude people of particular nationalities, countries of birth and who hold or have held citizenship of particular countries from particular work. I have no evidence before me from which I can draw any conclusions about the extent of that detriment. All I can do in the circumstances is identify the potential detriment and conclude that a loss of a job opportunity may have serious consequences for particular individuals. Further, restricting some employees or contractors from certain work might create two classes of employees with the result that staff of particular nationalities may be regarded differently to others in the Applicants' workforces.
In my view, President Glancy's comments in Cobham (where an exemption was sought in similar circumstances to this case) about the detriment to employees, contract workers and job applicants which may occur from the grant of the exemption, are also true of the exemption sought by Saab. Accordingly, I find that those comments apply in this case.
On balance, I am persuaded that any detriment to these individuals in being asked about their nationalities or excluded from certain work, is outweighed by the public and private advantages of granting the exemption. These include public interest considerations such as protecting and enhancing Australia's national security and economic interests including the interests of Saab's current employees in Western Australia.

Whether SAAB has and will continue to take any reasonable steps to avoid or reduce the adverse effect of the discriminatory acts

Saab has submitted that any negative impact of the proposed grant of the exemption is minimal and will be mitigated by the measures that Saab will undertake in respect of that information.
By way of summary, these measures were expressed to include:
(a)mandatory training and associated policies on discrimination, bullying and harassment and training for relevant workers on export control concepts;
(b)secure storage of personal information which is subject to rigorous access and disclosure controls;
(c)the use of a tool developed by Saab to allow eligibility to access Controlled Materials being checked without the person performing the check being made aware of the specific nationality or nationalities of the person concerned;
(d)development of training regarding the exemption, its scope and the legal basis for the exemption that also emphasises the importance of treating all applicants with respect and avoiding unlawful discriminatory practices;
(e)monitoring compliance through Saab's Code of Conduct, Whistleblower Policy and Grievance Policy which provide for a handling, investigation and reporting procedure, whereby staff can raise any issues concerning the exemption;
(f)clearly explaining the reason for collecting nationality information in job postings and during the application process;
(g)limiting the collection of nationality information to positions with genuine requirements to access Controlled Materials;
(h)ensuring data is stored securely and confidentially and only accessed by or disclosed to personnel with a legitimate need to know the information or access the storage location who have been trained in the exemption and its scope; and
(i)internal auditing of compliance with the proposed exemption as part of Saab's formal quality audit program.
I agree that measures such as implementing training about the exemption, secure storage of information concerning nationality and strict restrictions on when that information can be collected and who can access it will assist in minimising potential adverse impacts on applicants and employees. I am satisfied that these measures are reasonable steps that will assist to mitigate the adverse effects of the proposed exemption.
The text of the exemption that Saab has proposed also contains conditions to minimise the impact of the exemption as far as is reasonably practicable. I address these below under the heading 'Should the exemption be subject to conditions or limitations?'
Overall, I am satisfied that Saab has implemented, and will continue to take, reasonable steps to avoid or reduce the adverse effect of the discriminatory acts if the exemption is granted.

Whether any other persons or bodies other than the applicant support the application

In the Commissioner's affidavit dated 26 September 2024, the Commissioner stated his view that 'the application is not intended to further the objects of the Act'.
Referring to ADI, the Commissioner stated that he did 'not support or oppose the application for exemption and express[ed] no view as to whether the public interest will best be [sic] served by granting the exemption'.
As I outlined above, the Tribunal did not receive any submissions from persons other than Saab in support of, or in opposition to, the application for the s 135 exemption. Five of Saab's Western Australian workers sought clarifications or asking general questions, but they did not support, nor did they oppose, the application for a s 135 exemption.
The lack of any objections being received, lends some weight to the exemption being granted.

Balancing the considerations

In summary, the exemption is necessary for Saab to comply with its legal and contractual obligations.
The exemption is also reasonable and necessary because it has only been sought to the extent necessary, and there are no specific or general exceptions that Saab could rely upon instead of seeking the exemption.
There are limited non-discriminatory ways of achieving the purposes of the exemption.
The exemption is in the public interest, and on balance, any public or private detriment, is outweighed by the advantages of granting the exemption.
Saab has also proposed reasonable steps to limit the persons that the exemption would need to apply to, and to minimise the detrimental impact of the exemption on staff and contractors, and to protect the privacy of the information collected.
The Commissioner neither supported, nor opposed the exemption. No submissions in support of the application for an exemption, nor any substantive objections to the grant of the exemption were received from third parties, including Saab employees or contractors, or members of the public.
On balance, I am satisfied, and I find, that these considerations support the grant of the exemption.

Should the exemption be subject to conditions or limitations?

The proposed exemption sought by Saab contains conditions in paragraph 2(a) to (f) which aim to limit the scope of the exemption. The exemption is set out in full in Annexure A to these reasons.
By way of summary, the conditions to the exemption include that the exemption will only apply to conduct by Saab which is necessary to enable Saab to obtain and maintain export licences, authorisations and/or approvals, perform contractual obligations requiring access to Controlled Materials, where necessary to comply with the ITAR, EAR and DTC Act and where Saab has taken all reasonable steps to avoid engaging in any conduct that would contravene s 37, s 39 and s 49 of the EO Act: paragraph 2(a).
They also include providing information to workers about why acts that would otherwise contravene the EO Act are being undertaken. For example, paragraph 2(b) of the exemption provides that if a worker is moved from a project involving the use of Controlled Materials, an authorised officer must explain the reason for the transfer and take all reasonable steps to avoid or limit harm or loss to that person.
Other conditions in the exemption include ensuring no information concerning nationality is apparent on the face of security passes: paragraph 2(c); and restricting access to information about nationality to certain persons in the company on a 'need-to-know basis': paragraph 2(d).
A further condition is that Saab's employment policies shall be amended as soon as possible to refer to the exemption and its conditions, and to make it clear that the purpose is to comply with the ITAR, EAR and DTC Act.
The exemption is also expressed to only apply to conduct by Saab where exemptions, exceptions or other provisions under the ITAR, EAR and DTC Act, including s 126.18 of the ITAR are not applicable: paragraph 2(f).
These conditions, in my view, will assist to minimise the impact of the exemption on Saab's employees, contractors and prospective employees and contractors. Awareness of the exemption and its conditions in Saab's employment policies will also help to ensure compliance with the exemption and the effectiveness of the conditions.
A further condition has also been included by Saab, which requires Saab to annually report to the Commissioner for the duration of the exemption, including on compliance with the exemption requirements. The appropriateness of such a condition was discussed by Deputy President Glancy (as President Glancy then was) in Cobham at [118] - [123]:
118In my view, despite the fact that the EO Act does not expressly confer upon the Commissioner a role in enforcing compliance with the terms of an exemption, the imposition of a condition requiring reporting to the Commissioner would be valid for the following reasons.
119First, while the EO Act does not require or specifically contemplate the monitoring by the Commissioner of compliance with an exemption, the fact that the Commissioner considers that he has a role in doing so can be seen from his affidavit where he stated that he did not oppose the application but seeks to have a condition requiring reporting to him be imposed.
120Second, in my view, the imposition of such a reporting requirement would further the purpose of the EO Act, which is, among other things, to promote equality of opportunity in WA and to provide remedies in respect of discrimination on particular grounds, including race.
121Third, the provision of information to the Commissioner and his review of that information periodically would be permitted by the functions conferred on the Commissioner by the EO Act, which include, in s 80 of the EO Act, the carrying out of investigations, research and inquiries relating to discrimination of the kinds rendered unlawful under the EO Act and the doing of anything conducive or incidental to the performance of functions conferred or imposed on the Commissioner under s 80 of the EO Act.
122Fourthly, having regard to the objects, scope and purpose of the EO Act, it is important that there be some oversight of compliance with an exemption that is granted to ensure that discrimination does not occur beyond that which the Tribunal has determined is reasonable in the particular case. The Applicants' proposed conditions (f) and (g), which require the retention of records, would serve little purpose without more.
133Finally, reporting to the Commissioner is commonly a condition imposed on the granting of an exemption under s 135 of the EO Act.
(Footnote omitted)

I agree that it is appropriate to include such a condition in the exemption sought by Saab. The Commissioner did not express a view about reporting in his affidavit. However, for the reasons expressed by President Glancy the reporting requirement is, in my view, an important condition to include in the exemption. It provides independent oversight for the term of the exemption, which is consistent with the objects, scope, and purpose of the EO Act, including the Commissioner's statutory role. Oversight by the Commissioner will also help to promote public confidence in the EO Act, including the grant of exemptions.
The terms and conditions set out in the exemption are consistent with the conditions imposed in other cases where similar s 135 exemptions have been granted and are generally consistent with the terms of the exemptions granted to Saab in other Australian States (Queensland, South Australia and the Australian Capital Territory).
I am satisfied that the conditions are reasonable and will assist to limit the exemption as far as possible. I find that it is appropriate that these conditions, which are included in the exemption set out in Annexure A, should be included in the exemption.

Term of the exemption

As I have outlined above, Saab has ongoing contractual relationships with the Commonwealth, many of which extend beyond the term that it is seeking for the exemption, which is five years. Many of these contracts have extension and renewal options which result in the contracts ultimately spanning many more years than the initial contracted term.
A five-year term will give Saab a period of commercial certainty so that it can continue to fulfil its contractual obligations to the Commonwealth, in circumstances where these contracts are of an ongoing nature.
An exemption for a five-year term would also be counter-balanced by the condition requiring Saab to report annually to the Commissioner. The Commissioner will be able to monitor any changes in circumstances which may mean that the exemption is no longer necessary, or does not have to be renewed.
I am therefore satisfied that a five-year term is appropriate in the circumstances of this case.

Conclusion

Having considered the objects, scope, and purpose of the EO Act, and after weighing the considerations that are relevant to the grant of the exemption, I am satisfied that an exemption with conditions for a term of five years is appropriate and warranted in the circumstances.
I will therefore exercise discretion to grant the exemption sought by Saab for a term of five years.

Orders

I make the orders set out in Annexure A.

Annexure A

The Tribunal orders:
1.Pursuant to s 135(1) of the Equal Opportunity Act 1984 (WA) (EO Act), Saab Australia Pty Ltd (ACN 008 643 212) (Saab) is granted an exemption from compliance with the provisions of s 37, s 39 and s 49 of the EO Act for a period of five (5) years insofar as those sections relate to the 'race' (as defined in s 4 of the EO Act) of applicants for employment, employees and contract workers to the extent that they may:
(a)request information relating to the nationality, country of birth and current and past citizenship from existing and potential employees and contractors;
(b)take a person's nationality, country of birth and current and past citizenship into account in determining who should be offered employment or contract work in areas requiring access to items subject to the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR) or Defence Trade Controls Act 2012 (Cth) (DTC Act) (together, Controlled Materials) and when making decisions as to the participation of employees or contractors in such work;
(c)maintain records of the nationality, country of birth and current and past citizenship of all employees and contractors who have or may have access to Controlled Materials in the performance of their work;
(d)advertise positions and/or otherwise inform applicants for employment in roles which require access to Controlled Materials and are subject to permits, licences, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR, EAR, or DTC Act controls if they:
(i)are not an Australian citizen; or
(ii)hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or
(iii)hold permanent residency in a country or countries other than the US or Australia; or
(iv)have substantive contacts with countries proscribed by s 126.1 of ITAR or the EAR.

(e)ensure that Controlled Materials are disclosed only to persons who are not prohibited from receiving a disclosure in accordance with applicable US laws;
(f)impose limitations or prohibitions on persons of particular nationalities, countries of origin and current and past citizenship having access to Controlled Materials in the performance of their work;
(g)disclose to any US company that holds a US Export Authorisation (US Exporters) under which Saab is an authorised recipient of Controlled Materials and to the US Department of State (for the ITAR) or US Department of Commerce (for the EAR), where requested and confirmed by Saab as being required in order for Saab to receive Controlled Materials (and to undertake the work to which the Controlled Materials relate), the nationality, country of birth and current and past citizenship of all employees and contractors who will have access to those Controlled Materials in the performance of their work;
(h)disclose to the Government of the Commonwealth of Australia (Commonwealth); any duly authorised agent of the Commonwealth; or any company, organisation or person subject to the disclosure requirements stipulated by the DTC Act (or any other legal obligations imposed on Saab) that supplies Saab with Controlled Materials, where requested and confirmed by Saab as being required in order for Saab to comply with the DTC Act, the nationality, country of birth and current and past citizenship of all employees and contractors who will have access to the Controlled Materials in the performance of their work;
(i)establish security systems which will prevent the unauthorised reexport or retransfer of Controlled Materials.

2.The exemption applies subject to the following conditions:
(a)It will only apply to conduct by Saab where:
(i)that conduct is necessary to enable Saab to obtain and maintain export licences, authorisations and/or approvals;
(ii)that conduct is necessary to enable Saab to enter into or perform contractual undertakings requiring access to Controlled Materials;
(iii)that conduct is necessary to comply with the ITAR, EAR and DTC Act; and
(iv)Saab has taken all steps that are reasonably available (including steps that might be taken in negotiating and performing the terms of their agreements with US Exporters) to avoid the necessity of engaging in conduct that would otherwise be in breach of s 37, s 39 and s 49 of the EO Act.

(b)Where, in the exercise of this exemption, an employee or contract worker is moved from a project involving the use of Controlled Materials to any other work controlled by Saab or any of their related entities, Saab must explain to the person through a duly authorised officer why he or she is being transferred and must otherwise take all reasonable steps to avoid or limit harm or loss to that person.
(c)Where Saab uses a system of security passes to reflect the fact of access to Controlled Materials or levels of access to any security–sensitive material by employees and contract workers, the passes may be coded but not in such a way as to identify the nationality, country of birth and current and past citizenship of the person or the reasons for that person's level of access.
(d)All information relating to nationality, country of birth and current and past citizenship and access to Controlled Materials shall be restricted to human resources officers, information technology staff and compliance personnel of Saab or their properly appointed nominees on a 'needto-know' basis.
(e)Saab's employment policies shall be amended as soon as reasonably possible so as to refer to the terms of this exemption, including all conditions attaching to it, and to make it clear that the purpose of the request for information regarding nationality, country of birth and current and past citizenship is made solely for the purposes of compliance with the ITAR, EAR and DTC Act.
(f)It will only apply where exemptions, exceptions or other provisions under the ITAR, EAR and DTC Act, including section 126.18 of ITAR, are not applicable.

3.Saab must prepare and retain records, and report annually to the Commissioner for Equal Opportunity on 11 November for the duration of the exemption, on the compliance with the exemption requirements and changes in its procedures to reflect amendments to the ITAR, EAR and DTC Act, and as to how its employees and contractors are affected.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
11 MARCH 2025