Thales Australia Limited and Commissioner For Equal Opportunity

Thales Australia Limited sought a determination that the Commonwealth of Australia, through the Commissioner for Equal Opportunity, unlawfully discriminated against the applicant by refusing to grant an exemption from the operation of certain provisions of the Equal Opportunity Act 1984 (WA). The dispute centred on the applicant's inability to hire employees based on their nationality, a requirement necessitated by the need for access to defence articles, technical data, and defence services owned by the United States Government. The case was heard by the State Administrative Tribunal of Western Australia.

The central legal issue was whether the Tribunal should grant the exemption application, and if so, under what conditions. Thales argued that the refusal to grant the exemption constituted unlawful discrimination under the Equal Opportunity Act 1984 (WA). The Tribunal had to consider whether the refusal was consistent with the public interest and whether there had been any material change in circumstances since the initial exemption was granted. Additionally, the Tribunal had to determine if the conditions previously imposed on the exemption were being met.

In reaching its decision, the Tribunal acknowledged that the applicant's access to certain defence materials and services was contingent upon its ability to discriminate on the basis of nationality. The Tribunal found that there had been no material change in circumstances since the initial exemption was granted. Consequently, the Tribunal held that it was in the public interest to maintain consistency in decision-making. The Tribunal also noted that the conditions previously imposed on the exemption had been complied with. Therefore, the Tribunal granted the exemption application, subject to the conditions set out in the earlier decision and an additional agreed condition.

The Tribunal's final orders included the grant of the exemption application, subject to the conditions imposed in the earlier SAT decision and the further agreed condition. This decision affirmed the importance of consistency in administrative decision-making and recognised the necessity of the exemption to facilitate the applicant's compliance with its obligations under the defence agreements.