Legal Research
Cases
SAAB AUSTRALIA PTY LTD

SAAB AUSTRALIA PTY LTD

Case [2025] WASAT 23 11 March 2025

Type to search within this case.

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…

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.

Continue reading SAAB AUSTRALIA PTY LTD

Details

AGLC: SAAB AUSTRALIA PTY LTD [2025] WASAT 23
Case: [2025] WASAT 23
Decision Date: 11 MARCH 2025

CaseChat Overview and Summary

The applicant, Saab Australia Pty Ltd, sought an exemption from the operation of certain sections of the Equal Opportunity Act 1984 (WA), specifically sections 37, 39, and 49, which prohibit discrimination on the grounds of race. Saab Australia, which holds defence contracts with the Commonwealth, required access to defence technology from the United States to fulfil its contractual obligations. However, this access was restricted by international regulations, namely the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), as well as the Defence Trade Controls Act 2012 (Cth). The applicant contended that an exemption was necessary to comply with its contractual and legal obligations.

The primary legal issue before the court was whether an exemption from discrimination on the grounds of race in employment-related areas was warranted under the circumstances. The court had to balance Saab Australia's need to access defence technology against the potential discrimination arising from the need to employ individuals of specific nationalities. The applicant argued that the international regulations governing defence technology access necessitated the employment of individuals of specific nationalities, which would otherwise constitute indirect discrimination under the Equal Opportunity Act.

The court granted the exemption for a period of five years, with specific terms and conditions imposed on the exemption. The court recognised the unique challenges faced by Saab Australia due to the international regulations governing defence technology access. It determined that the exemption was necessary to enable the applicant to meet its contractual obligations with the Commonwealth. The court outlined stringent terms and conditions, including reporting requirements and monitoring to ensure compliance with the EO Act, to mitigate any potential discrimination resulting from the exemption.

The final orders of the court included the grant of an exemption from sections 37, 39, and 49 of the Equal Opportunity Act 1984 (WA) for a period of five years, subject to the terms and conditions imposed. Saab Australia was required to adhere to these conditions to ensure that the exemption did not result in discrimination on the grounds of race in employment-related areas. The exemption was specifically tailored to address the applicant's need to access defence technology from the United States while balancing the requirements of the EO Act.

Orders