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Re: Rohde & Schwarz (Australia) Pty Ltd[2024] QIRC 16

Re: Rohde & Schwarz (Australia) Pty Ltd[2024] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Rohde & Schwarz (Australia) Pty Ltd [2024] QIRC 016

PARTIES:

Rohde & Schwarz (Australia) Pty Ltd

(Applicant)

CASE NO:

AD/2023/94

PROCEEDING:

Application for exemption 

DELIVERED ON:

31 January 2024

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

  1. The Orders are in the terms set out in Schedule A herein.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – EXEMPTION – 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 the United States International Tracking in Arms Regulations and the Arms Export Control Act – exercise of discretion

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s 127, s 174B

CASES:

Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280

Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869

Re: Cobham Aviation Service Australia Pty Ltd & Ors [2022] QIRC 326

Re: Kalwun Development Corporation Limited [2019] QIRC 141

Re: Leidos Australia Pty Ltd [2021] QIRC 229

Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

Reasons for Decision

Introduction

  1. [1]
    The Applicant, Rohde & Schwarz (Australia) Pty Ltd ("Rohde & Schwarz"), seeks an exemption, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ("AD Act"), from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act.[1]
  1. [2]
    Rohde & Schwarz seeks the exemption in so far as the relevant provisions relate to the attribute of "race"[2] to enable it to comply with 22 USC 2778 of the Arms Export Control Act ("AECA"), Executive Order 13687 and the International Traffic in Arm Regulations ("ITAR") (22 CFR 120-130).
  1. [3]
    Rohde & Schwarz makes the application on the basis that it intends to expand its operations by recruiting approximately 50 persons over the next 12 to 18 months with the majority of the roles to be filled in Queensland.[3]

Relevant background

  1. [4]
    In support of its application, Rohde & Schwarz relies on the Affidavit of Ms Hussey Head of Commercial, filed on 20 October 2023. Ms Hussey's evidence addresses the nature of the work performed by Rohde & Schwarz, the international statutory framework that Rohde & Schwarz operates its business in accordance with, and the purpose for which the exemption is sought.
  1. [5]
    Rohde & Schwarz contends that it requires the exemption sought in order to comply with the laws of the United States of America ("the US") which governs access to certain defence-related technology and data ("Controlled Material") which Rohde & Schwarz requires for performing contracted works for, interalia, the Commonwealth of Australia, in particular, the Department of Defence ("Defence").
  1. [6]
    Ms Hussey describes[4], the Rhode & Schwarz group of companies as a privately owned group of companies and a world leader in the design and manufacture of solutions for text and measurement, broadcast and media, secure radio communications, cybersecurity, radio monitoring and radio location.
  1. [7]
    Ms Hussey further states[5] that since Rohde & Schwarz was established in Sydney in 1981, it has developed as a subsidiary of the global group, that sells within Australia, products designed and manufactured by its related entities in Europe and designs, delivers, and maintains integrated communication systems, air traffic control systems and related equipment.
  1. [8]
    The Commonwealth of Australia, in particular Defence is one of Rohde & Schwarz's largest customers. Further, Rohde & Schwarz submits that it also acts as a subcontractor to other Defence contractors who supply to Defence.
  1. [9]
    Rohde & Schwarz contends that the US Department of Defence is responsible for the export and temporary import of defence articles and services. The export and temporary import of defence articles and services are subject to US export control laws such as the AECA and the ITAR ("US export control laws").[6] The ITAR (22 CFR 120-130) implements the AECA.
  1. [10]
    The ITAR controls all US military technology and those in possession of it wherever it is in the world, and it prohibits the sharing of Controlled Material with persons who hold or have citizenship or permanent residency in a group of specified countries.
  1. [11]
    Rohde & Schwarz submits that in order to provide the contracted works required by its direct and indirect contracts with Defence, it requires access to Controlled Material. Rohde & Schwarz contends that the US export control laws apply when it is in receipt of Controlled Material as follows:[7]
  1. §126 of the ITAR contains general policies and provisions and §126.1 addresses prohibited exports, imports and sales to or from certain countries.
  2. Pursuant to section §126 of the ITAR, a policy of denial applies to a number of countries, including Afghanistan, Cambodia, Central African Republic, the People's Republic of China, Cyprus, Democratic Republic of Congo, Ethiopia, Eritrea, Haiti, Iraq, Lebanon, Libya, Russia, Somalia, South Sudan, Sudan and Zimbabwe.
  3. Further to the above, §120.19(2)(b) of the ITAR provides

Any release outside the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency.

  1. §120.19 and §126.1 of the ITAR prevent Rohde & Schwarz Australia from sharing controlled technology, equipment and technical data with persons, including employees and contractors, who hold citizenship or permanent residency in the countries listed under §126.1 of the ITAR.
  1. Through its direct and indirect contracts (as a subcontractor to other defence contractors), with the Commonwealth of Australia, represented by the Department of Defence, Rohde & Schwarz Australia comes into possession of such Controlled Material.

  1. [12]
    Rohde & Schwarz submits that US export control laws restrict and, in some cases, prohibit access to Controlled Material by persons on the basis of nationality, citizenship, country of birth and association with persons of certain nationalities, citizenship or countries of birth. In these circumstances, Rohde & Schwarz submits that in order to properly comply with US export control laws as well as its contractual obligations to the Commonwealth of Australia, it must be in a position to:
  1. Advertise positions and/or otherwise inform applicants for employment or contract work in roles which require access to Controlled Material and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
  1. are not an Australian citizen; or
  2. hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or
  3. hold permanent residency in a country or countries other than the US or Australia;
  4. have substantive contracts with countries proscribed by section 126.1 or [sic]ITAR;
  1. Request and maintain records of information from Personnel who perform or may perform work on the Rohde & Schwarz Australia's premises or offsite and who are subject to the Rohde & Schwarz Australia's control and direction for positions related to projects which use Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (I) below:
  2. Impose a condition of any offer of employment and/or reject applicants in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise;
  3. Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR in determining whether those personnel may be offered a role or allocated work that involves access to Controlled Material;
  4. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to Controlled Material;
  5. Require personnel involved in projects which access Controlled Material to notify the Rohde & Schwarz Australia of any change to their citizenship or permanent residency status, nationalities or substantive contacts;
  6. Restrict access to Controlled Material to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR;
  7. Record information relating to security clearances granted to personnel who are under the control and the direction of the Rohde & Schwarz Australia in relation to work requiring access to Controlled Material;
  8. Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
  9. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to Controlled Material, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement or project;
  10. Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;
  11. Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, of the Rohde & Schwarz Australia's personnel in Queensland to:
  1. the US Department of State;
  2. the US Department of Commerce;
  3. the Commonwealth of Australian represented by the Department of Defence; and
  4. any other person  or organisation  for which,  or  on whose behalf,  or at  whose  request  the Rohde  & Schwarz Australia undertakes work in respect of which the Rohde & Schwarz  Australia  has directly or indirectly an obligation not to transfer Controlled Material to persons  of  certain nationalities.
  1. [13]
    It is clear that if Rohde & Schwartz were to engage in the activities proposed in the order, in the absence of an exemption, it would be a breach of the prohibition on discrimination on the basis of race in respect of the pre-work and work area as set out in the AD Act, including with respect to ss 14, 15, 15A, 124 and 127 of the AD Act.
  1. [14]
    Rohde & Schwarz submits that a failure to comply with the US export control laws and restrictions would make it, as well as its employees and contractors, potentially liable to sanctions including criminal charges and fines.
  1. [15]
    The question for my determination is whether, pursuant to s 113(1) of the AD Act, the exemption sought by Rohde & Schwarz should be granted.

Procedural matters required by s 113(2) of the AD Act

  1. [16]
    Before deciding an application, the Tribunal[8] must provide a copy of the application and material filed in support of the application to the Human Rights Commissioner ("the HR Commissioner") and have regard to any submission made by the HR Commissioner on the application, including any submission on the process for considering the application.
  1. [17]
    In accordance with s 113 of the AD Act, the HR Commissioner was notified and provided with a copy of the application and supporting information. On 24 November 2023 the HR Commissioner filed written submissions.
  1. [18]
    Following a public consultation process which included providing a copy of the application and supporting information to the Queensland employees, contractors and other workers of Rohde & Schwarz, the Queensland Council of Unions ("QCU") and the Ethnic Communities Council of Queensland, the Commission received submissions from the QCU as an interested party. The Tribunal[9] was not notified of any other interested party wishing to be heard with respect to the application.

Rohde & Schwarz's application for exemption

  1. [19]
    The terms of the exemption order sought by Rohde & Schwarz are as follows:
  1. Pursuant to section 113 of the Act and subject to the conditions contained in the Schedule, an exemption is granted to the Applicant from the operation of sections 14, 15, 15A 124 and 127 of the Act for the period from [insert date of order] to [5 years from the date of the order].
  2. The exemption is granted in respect of the operation of sections 14, 15, 15A, 124 and 127 of the Act insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the Act) of the Applicant's workforce.
  3. The exemption permits the Applicant to engage in the following activities:
  1. Advertise positions and/or otherwise inform applicants for employment or contract work in roles which require access to Controlled Material and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
  1. are not an Australian citizen;
  2. hold, or have held, dual nationality and/or citizenship from countries other that the US or Australia;
  3. hold permanent residency in a country or countries other than the US or Australia; or
  4. have substantive contacts with countries proscribed by section 126.1 or ITAR,
  1. Request and maintain records of information from Personnel who perform or may perform work on the Rohde & Schwarz Australia's premises or offsite and who are subject to the Rohde & Schwarz Australia's control and direction for positions related to projects which use Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (l) below;
  2. Impose a condition of any offer of employment and/or reject applicants in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise;
  3. Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR in determining whether those personnel may be offered a role or allocated work that involves access to Controlled Material;
  4. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to Controlled Material;
  5. Require personnel involved in projects which access Controlled Material to notify the Rohde & Schwarz Australia of any change to their citizenship or permanent residency status, nationalities or substantive contacts;
  6. Restrict access to Controlled Material to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR;
  7. Record information relating to security clearances granted to personnel who are under the control and the direction of the Rohde & Schwarz Australia in relation to work requiring access to Controlled Material;
  8. Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
  9. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to Controlled Material, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement or project;
  10. Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;
  11. Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, of the Rohde & Schwarz Australia's personnel in Queensland to:
  1. the US Department of State;
  2. the US Department of Commerce;
  3. the Commonwealth represented by the Department of Defence; and
  4. any other person or organisation for which, or on whose behalf, or at whose request the Rohde & Schwarz Australia undertakes work in respect of which the Rohde & Schwarz Australia has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.
    1. In this exemption:
  1. "Act" means the Anti-Discrimination Act 1991;
  2. "Applicant" means Leidos Australia Pty Ltd (ACN 612 590 155)[10]
  3. "Controlled material" means material (including equipment, technology, articles and services) and information (including classified or sensitive information and technical data) to which the security requirements apply;
  4. "EAR" means the Export Administration Regulations of the US;
  5. "ITAR" means the International Trafficking in Arms Regulations of the US;
  6. "Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
  7. "Security requirements" means any of the following:
  1. requirements of Australian or US laws, including but not limited to ITAR and EAR, including requirements of any permit, licence or approval granted, or agreement made, under those laws;
  2. contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above.
  1. "US" means United States of America.

 Annex: Conditions

  1. This exemption applies only to the Applicant's conduct where:
  1. it is necessary to enable the Applicant to obtain and maintain US export licenses and approvals or to perform contractual obligations which involve access to Controlled Material;
  2. the Applicant has taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 124 and 127 of the Act, including:
  1. reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
  2. where personnel are nationals or dual nationals of a country not approved for access to Controlled Material, then the Applicant will either request the US Department of State, or request the relevant export license holders to request the US Department of State to amend the relevant export licenses to enable those personnel to have access to Controlled Material, unless the Applicant, on reasonable grounds, determines that either:
  1. the personnel are not the best candidate for the relevant position; or
  2. such an application does not have significant prospects of success,
  1. in the event the US Department of State requires the Applicant to provide further information specific to an individual, then with the consent of the individual, the Applicant will work with the individual to supply all relevant information to the US Department of State so than an application for approval may be made in relation to that individual.
  1. Where, pursuant to this exemption, the Applicant wishes to reserve the right to make a conditional offer of employment in relation to a position which will or may involve access to Controlled Material, any advertisement, invitation for expressions of interest, or other promotional information referring to the position must include the information that:
  1. the position will or is likely to require access to Controlled Material and that any individual occupying the position must be able to satisfy the ITAR-based requirements which may require specific authorisation for that individual to access Controlled Material; and
  1. if a candidate for the position is concerned as to whether or not they will satisfy the requirement in (a) above, the candidate should contact a nominated member of the Applicant's personnel who is able to provide relevant information, including information about the scope of the exemption and the candidate's individual rights.
  1. [20]
    Rohde & Schwarz submits that it intends to rely on the exemption only where:
  1. it is necessary to enable the Applicant to obtain and maintain US export licenses and approvals or to perform contractual obligations which involve access to Controlled Material; and
  1. the Applicant has taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 124 and 127 of the AD Act.

The relevant legislative provisions

The AD Act

  1. [21]
    The Tribunal has the power, pursuant to s 174B(b) of the AD Act, to grant exemptions in relation to work related matters.
  1. [22]
    Section 113(1) of the AD Act relevantly provides that, on application by a person, the Tribunal may grant an exemption to the person from the operation of a specified provision of the Act. Section 113 of the AD Act is in the following terms:

113 Tribunal

  1. The tribunal, on application by—
  1. a person, on the person’s own behalf, or on behalf of the person and another person or other people; or
  1. 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or
  1. a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

Note—

See also section 174C in relation to the tribunal’s powers for deciding the application.

  1. An exemption—
  1. may be granted subject to such terms as the tribunal provides; and
  1. may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and
  2. is to be granted for a specified period of not more than 5 years.
  1. An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted.

  1. [23]
    The application sought by Rohde & Schwarz seeks the exemption for a period of five years.[11]
  1. [24]
    Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of "race".
  1. [25]
    Section 14 of the AD Act prohibits discrimination in the area of "pre-work" including by prohibiting discrimination in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered worked.
  1. [26]
    Section 15 of the AD Act prohibits discrimination in the work area including by prohibiting discrimination in varying terms of work, in dismissing a worker, by denying a workers' access to opportunities at work, and the general unfavourable treatment of a worker in anyway in connection with work.
  1. [27]
    Section 15A of the AD Act prohibits discrimination by a proposed partnership in deciding who should be invited to become a partner and the terms on which a person is invited to be a partner.
  1. [28]
    Section 124 of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based.
  1. [29]
    Section 127 of the AD Act prohibits the publication and display of advertisements which in any way contravene the AD Act.
  1. [30]
    The exercise of the discretion conferred by s 113 of the AD Act on the Tribunal is broad and unfettered.[12] However, a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.[13] These considerations include:
  1. whether the exemption is necessary;
  1. whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
  1. whether the exemption is in the community interest;
  1. whether any other person or body, other than the applicant, support the application;
  1. whether it is reasonable and appropriate to grant the exemption; and
  1. the effect of not granting the exemption.
  1. [31]
    I will address these considerations further below following my consideration of the Human Rights Act 2019 (Qld) ("HR Act").

The HR Act

  1. [32]
    The Tribunal, in addition to the matters referred to above, must also consider any relevant matters arising in accordance with the HR Act.
  1. [33]
    Section 3 of the HR Act provides that the main objects[14] of the HR Act are to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.
  1. [34]
    The way in which the HR Act provides that the main objects are to be achieved[15] include, inter alia, by:
  1. requiring public entities to act and make decisions in a way that is compatible with human rights;[16] and
  1. requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose in a way compatible with human rights.[17]
  1. [35]
    Section 58(1) of the HR Act provides that is unlawful for a public entity to:
  1. make a decision in a way that is not compatible with human rights; or
  1. in making a decision, fail to give proper consideration to a human right relevant to the decision.
  1. [36]
    Section 9(1) and (2) of the HR Act provides the meaning of "public entity". Relevantly, s 9(4)(b) of the HR Act provides that "public entity" does not include ''…a court or tribunal, except when acting in an administrative capacity."
  1. [37]
    It has been accepted[18] that a decision made pursuant to s 113 of the AD Act involves the Tribunal acting in an administrative capacity. Consequently, in determining the application, the Tribunal must observe the relevant provisions of s 58 of the HR Act. I will address s 58 and other provisions of the HR Act further below.

Section 58 of the HR Act applies

  1. [38]
    Section 58 of the HR Act applies to the Tribunal when determining whether or not to grant an exemption pursuant to s 113(1) of the Act. Section 58 relevantly provides as follows:

58 Conduct of public entities

  1. It is unlawful for a public entity—
  1. to act or make a decision in a way that is not compatible with human rights; or
  1. in making a decision, to fail to give proper consideration to a human right relevant to the decision.

  1.   For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
  1. identifying the human rights that may be affected by the decision; and
  1. considering whether the decision would be compatible with human rights.
  1.   To remove any doubt, it is declared that—
  1. an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1. person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
  1. [39]
    Section 7 of the HR Act defines human rights to mean "…the rights stated in part 2, divisions 2 and 3". Part 2, Div. 2 of the HR Act deals with civil and political rights. Section 15[19] provides for recognition and equality before the law in the following terms:

15 Recognition and equality before the law

  1.   Every person has the right to recognition as a person before the law.
  1.   Every person has the right to enjoy the person’s human rights without discrimination.
  1.   Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. Every person has the right to equal and effective protection against discrimination.
  1. Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [40]
    Section 25 of the HR Act provides for the right to privacy as follows:

25 Privacy and reputation

A person has the right –

  1.   not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  2. not to have the person’s reputation unlawfully attacked.
  1. [41]
    Section 8 of the HR Act defines “compatible with human rights” as follows:

8 Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

  1. does not limit a human right; or
  1. limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [42]
    Section 13 of the HR Act provides that human rights may be limited as follows:

13 Human rights may be limited

  1.   A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. the nature of the human right;
  1. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. the importance of the purpose of the limitation;
  1. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. the balance between the matters mentioned in paragraphs (e) and (f).

Section 48 of the HR Act applies

  1. [43]
    Section 5 of the HR Act relevantly provides as follows:

5 Act binds all persons

  1. This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
  1. This Act applies to—
  1. a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and
  1. the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and
  1. a public entity, to the extent the public entity has functions under part 3, division 4.
  1. Subsection (2) does not limit or otherwise affect—
  1. another function conferred by this Act on an entity mentioned in the subsection; or
  1. a function conferred by this Act on any other entity.
  1. Nothing in this Act makes the State liable to be prosecuted for an offence.
  1. [44]
    Consequently, pursuant to s 5(2)(a) of the HR Act, the HR Act applies to a court or tribunal, to the extent the court or tribunal has functions under Pt. 2 and Pt. 3, Div. 3 of the HR Act.
  1. [45]
    Section 48 of the HR Act is contained in Pt. 3, Div. 3 of the Act and provides as follows:

48 Interpretation

  1.   All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  1.   If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1.   International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  1. This section does not affect the validity of—
  1. an Act or provision of an Act that is not compatible with human rights; or
  1. a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
  1. This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [46]
    Accordingly, s 113 of the AD Act, must be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with its purpose.

Submissions of the QCU

  1. [47]
    The QCU filed written submissions indicating that it did not object to the Commission granting the exemption sought by Rohde & Schwarz on the basis that the exemption is subject to relevant conditions similar to those ordered in the decisions of Re: Leidos Australia Pty Ltd[20]Re: Cobham Aviation Service Australia Pty Ltd & Ors[21]; and Re: Rheinmetall Defence Australia Pty Ltd[22].

Submissions of the QHRC

  1. [48]
    The HR Commissioner filed submissions indicating that the application was not opposed but made submissions to assist the Tribunal. The HR Commissioner submitted that the effect of the proposed exemption would be to allow Rohde & Schwarz to discriminate on the basis of race in engaging people whose role may require them to have access to Controlled Material.
  1. [49]
    The HR Commissioner's submissions refer to the obligations of the Tribunal under the HR Act in considering Rohde & Schwarz's application, in particular, that the Tribunal must give proper consideration to human rights and make a decision in a way that is compatible with human rights.[23]
  1. [50]
    Whilst Rohde & Schwarz's submissions did not address s 25 of the AD Act, the HR Commissioner did make submission regarding s 25 of the AD Act. In this respect it was submitted that, with respect to the positions identified in the application, it is open on the evidence to find that the necessary requirements to comply with the ITAR are genuine occupational requirements for the purposes of s 25 of the AD Act.
  1. [51]
    The HR Commissioner submitted that such a finding would have the consequence that the exemption order was unnecessary.

Genuine occupational requirements exemption – s 25 of the AD Act

  1. [52]
    Section 25(1) of the AD Act provides that a person may impose a genuine occupational requirement for a position. Section 24 of the AD Act provides that it is not unlawful to discriminate in the work or work related area if an exemption in s 25 applies.
  1. [53]
    Relevantly, the HR Commissioner submitted that the application is limited to positions identified as requiring access to Controlled Material and the evidence supports a finding that compliance with the ITAR is a genuine occupational requirement of those positions. In order to properly assess the HR Commissioner's submissions in this regard, it is necessary to examine the evidence before the Tribunal.
  1. [54]
    Relevantly, the evidence of Ms Hussey[24] is that it is Rohde & Schwarz's intention to increase the headcount of its operation by approximately 50 persons over the next 12 to 18 months with the majority of the new roles to be performed in Queensland. Whilst Ms Hussey lists the "following positions" as requiring access to Controlled Material, she does not provide a list of positions. Rather, Ms Hussey refers to the following categories of workers:
  1. Sales and application engineers;
  2. Electrical and system engineers;
  3. Service department staff including but technicians, and engineering technicians;
  4. Quality team members;
  5. Program managers;
  6. Project and engineering administration team members;
  7. Configuration management control team members;
  8. Export control team members;
  9. Commercial and contract management team members;
  10. Finance team members;
  11. Warehouse and logistics personnel; and
  12. Information technology team members.
  1. [55]
    There is no detailed information before the Tribunal as to what position/s will be required to access Controlled Material. Relevantly, Ms Hussey refers in a general way to members of teams without referring to the positions within the teams. This may be because, as Ms Hussey deposes to, the positions will be created in the next 12 to 18 months.
  1. [56]
    Rohde & Schwarz has not made any submissions with respect to the application of s 25 of the AD Act. Similarly, the evidence it relies on does not address the matters one would expect to be addressed in a s 25 application.  This observation is not a criticism of Rohde & Schwarz as its application did not seek a s 25 exemption. 
  1. [57]
    The HR Commissioner notes that the present matter differs to Leidos[25] where the Tribunal was unable to conclude that the exemption in s 25 of the AD Act applied. Whilst I consider the factual matters considered to be particular to each of the applications, my conclusion that it is necessary to establish, on the evidence, that the requirement imposed is a genuine operational requirement for the position remains unchanged.
  1. [58]
    In Leidos, I found as follows:[26]

On the material before me, I am not satisfied that it is an inherent requirement of the position and consequently, a genuine occupational requirement, that workers at Leidos access Controlled Materials. Relevantly, Leidos seeks the exemption only insofar as some of its personnel may, at times, be required to access Controlled Material, when working on a particular project or part of a project or program. Not all work undertaken by personnel engaged by Leidos requires access to Controlled Material. Leidos argues that given the nature of the work it performs, including in designing software, it is difficult to predict with certainty, what information an employee will need to have access to at the commencement of a project and further at the time the worker is engaged. It states that it might be the case that for several stages of a project, that it would not be necessary for a worker to access Controlled Material, and accordingly, it would not be an inherent requirement of the position. Alternatively, a worker might be engaged to work on one project where access to Controlled Material is not necessary and then transition into a different project where such access was necessary.

I accept that the evidence relied on by Leidos as to how it operates its business and how it manages personnel. On that evidence, it is not essential to the position to, at all times, have access to Controlled Material. Accordingly, it is not essential to the position and does not form a genuine operational requirement.

  1. [59]
    Relevantly, the terms of s 25 of the AD Act outline that a person may impose a genuine occupational requirement for a position.
  1. [60]
    It has been accepted as uncontentious that the expressions "inherent requirements" in the context of the then s 15(4) of the Disability Discrimination Act 1992 (Cth) and "genuine occupational requirements" in s 25 are so similar in meaning that the tests formulated by the High Court with respect to the former expression are applicable to the latter expression.[27]
  1. [61]
    In Qantas Airways Ltd v Christie[28] Brennan CJ relevantly expressed the process for identifying whether a requirement is inherent in a position as follows:[29]

The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.

  1. [62]
    Further, it was identified by Gaudron J whether the requirement was an inherent requirement could be determined by asking "whether the position would be essentially the same if that requirement was dispensed with".[30]
  1. [63]
    It is clear that in order to make a determination that s 25 of the AD Act applies there needs to be consideration of the position/s in the context of the employment. That would require some evidence, at least of the details (including the identification) of the position/s under consideration. I do not consider that there is adequate evidence before me to make a determination that s 25 of the AD Act applies.

Application of the HR Act to this matter

What human rights may be affected by the granting of the exemption? – s 13(2)

  1. [64]
    Whether a person's human rights may be affected by the granting of an exemption under s 113(1) of the AD Act, can be determined by reference to the effect of the exemption if it is to be granted.[31]
  1. [65]
    The human rights relevant to the application are the right to equal protection of the law without discrimination and the right to equal and effective protection from discrimination.
  1. [66]
    The effect of Rohde & Schwarz's exemption application would be to allow it to seek and use personal information including with respect to a person's nationality, citizenship and place of birth when engaging a person to work in aspects of its business. Relevantly, the effect of the exemption would be to permit Rohde & Schwarz to lawfully discriminate on the basis of race in pre-work and work area, and, specifically, to be exempt from the application of s 124 of the AD Act, in respect of unlawful requests for information and to be exempt from the application of s 127 of the AD Act, in respect of its commentary in advertisements.
  1. [67]
    I am satisfied, on the material before me that the human rights contained in ss 15(3) and 15(4) of the HR Act, would be affected by the granting of the exemption sought by Rohde & Schwarz in that it would allow discriminatory activity to take place which would affect a person's right to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination.
  1. [68]
    Section 15(5) of the HR Act provides that measures taken for the purpose of assisting or advancing person's or groups of person's disadvantaged because of discrimination do not constitute discrimination. It could not be said that the activities sought to be protected by Rohde & Schwarz fall into the categories of measures described under s 15(5) of the HR Act.
  1. [69]
    Accordingly, the right to equal recognition and equality before the law will be limited. As such, s 13 of the HR Act will need to be considered in order to determine whether the limitations proposed by Rohde & Schwarz may be reasonable and justifiable. 
  1. [70]
    I will consider the factors listed in s 13(2) of the HR Act in deciding whether the limitations on the human rights identified are reasonable and justifiable.

The nature of the human right – s 13(2)(a) of the HR Act

  1. [71]
    The human rights engaged in this matter are the rights to equal protection of the law without discrimination and the right to equal and effective protection from discrimination.
  1. [72]
    The equivalent right in the Victorian Charter was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination)[32] ("Lifestyle Communities") as follows:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, ie treatment devoid of objective justification, in the application and administration of the law.

The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

  1. [73]
    In Lifestyle Communities,[33] it was considered that it was a common feature of exemption applications is that there is no particular "victim" of the intended discrimination. It was recognised that such applications are usually undefended and not opposed by the relevant human rights and equal opportunity commission. Further, it was noted that such applications are often routine and it is rare for someone to appear in a hearing to oppose such an application.
  1. [74]
    It was further discussed that exemptions of this nature have far reaching consequences and that it is important for a tribunal to take the nature of the right being limited into proper account.[34] Further, it was noted that the tribunal in such a circumstance, is the guardian of the human rights of the community in these applications.

The nature of the purpose of the limitation – s 13(2)(b) of the HR Act

  1. [75]
    When determining whether the limitation on a human right is reasonable and justifiable, s 13(2)(b) of the HR Act provides that the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom is a matter that must be considered.
  1. [76]
    The means by which the purpose is to be achieved includes utilising nationality and national origin information to make determinations about the engagement of Rohde & Schwarz's workforce. It is noted that such a limitation is undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom.
  1. [77]
    These considerations must be weighed with respect to the purpose of the exemption. In this matter the purpose of the exemption is in order for Rohde & Schwarz to comply with US export control laws controls which it submits is essential for the fulfilment of its direct and indirect obligations to the Commonwealth. Rohde & Schwarz notes in its submissions that the restrictions imposed by the US export control laws are "fundamentally founded in matters of both national and international security".
  1. [78]
    I acknowledge that in order for Rohde & Schwarz to perform some of its direct and indirect contract work with the Commonwealth, it must comply with the US export control laws. As noted in Rohde & Schwarz's submissions, if the exemption was not granted then it would not be able to discharge its direct and indirect contractual obligations with the Commonwealth. Further, Rohde & Schwarz submits[35] that this would also result in the following:
  1. termination of existing contracts;
  2. an inability to perform servicing, maintenance and repair of previously delivered equipment;
  3. a loss of current tenders;
  4. an inability to bid for future tenders or to obtain new work; and
  5. subsequently the loss of work for employees and contractors.

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose – s 13(2)(c) of the HR Act

  1. [79]
    There is a clear relationship between the terms of the limitation on human rights and the purpose of the orders sought. On the material before me, I am satisfied that the limitation helps to achieve the purpose for which it is sought.
  1. [80]
    Having regard to the purpose of the limitation as outlined above, so that Rohde & Schwarz may comply with the US export control laws in order to have access to Controlled Material, I consider that the terms of the proposed exemption are connected to and provide a means by which the purpose can be achieved.
  1. [81]
    I do not consider that the terms of the exemption go beyond the purpose of the exemption.
  1. [82]
    In this regard, I note that in Rohde & Schwarz's submissions that the exemption is only sought to ensure that it complies US export control laws which is:
  1. to ensure it can meet its contractual obligations to the Commonwealth;
  1. [to] be clear and transparent with potential employees and contractors, as well as current employees and contractors about their risks and obligations in handling Controlled Material in the course of their employment and in accordance with AECA and ITAR controls;
  1. to be in a position to be compliant with AECA and ITAR controls; and
  1. to limit access to Controlled Material for national or international security reasons.
  1. [83]
    This submission is reflected in the conditions attached to the terms of the draft exemption.
  1. [84]
    The conditions also provide that Rohde & Schwarz will take all steps reasonably available to it to avoid conduct which would otherwise be in breach of ss 14, 15, 15A, 124 and 127 of the AD Act.

Whether there are any less restrictive and reasonably available ways to achieve the purpose – s 13(2)(d) of the HR Act

  1. [85]
    If limitations go further than is necessary, or if there are less restrictive alternatives available, then such limitations will not be reasonable or justifiable.
  1. [86]
    Rohde & Schwarz submits that there are "no non-discriminatory ways" of achieving the purpose for which the application is sought. Rohde & Schwarz notes that the exemption sought "will only apply in narrow circumstances" and it "will take reasonable steps to avoid what would otherwise be a breach of the AD Act provisions".
  1. [87]
    I note that the scope of the exemption is such that it is only sought to apply in circumstances where Rohde & Schwarz must comply with the US export control laws and in order for it to meet its' direct and indirect contractual obligations to the Commonwealth. On the material before me, I am not satisfied that there is any less restrictive and reasonable available way to achieve the purpose.

The importance of the purpose of the limitation, the importance of preserving the human rights and finding a balance between the two – s 13(2)(e)-(g) of the HR Act

  1. [88]
    In Lifestyle Communities[36] it was held that the purpose of the right to recognition and equality before the law, specifically the right to equal protection of the law without discrimination and the right to equal and effective protection against discrimination is to protect the values of substantive equality, the universal humanity, autonomy and worth of the individual and their protection for personal and social development.
  1. [89]
    Further, it has been held[37] that the interests protected by the "equality rights" are the rights of every person to be treated equally before the law and to have the law applied to them in a way that is equal in law and in fact. Clearly, such important rights must not be limited without good reason.
  1. [90]
    The evidence provided by Rohde & Schwarz supports its submission that it provides services that support Australia's Defence interests. Rohde & Schwarz also submits that if it is unable to fulfil is contractual obligations to the Commonwealth this would result in:

… in termination of contracts, loss of jobs and economic growth in Queensland and potentially, a loss of trust in the ability of the Australian defence industry to operate genuine manufacturing operations in Queensland.

  1. [91]
    I have had regard to the fact that Rohde & Schwarz only seeks the limitation on the rights in order to comply with the US export control laws when it undertakes its business which includes providing services to the Commonwealth of Australia, including as a subcontractor to other Defence contractors.
  1. [92]
    I consider the limitation in the circumstances of this matter to be legitimate and of sufficient importance to limit the human rights affected. For the reasons referred to above, I also consider the limitations to be consistent with the purpose for which they are sought and to be proportionate to and appropriate for achieving that purpose.
  1. [93]
    For these reasons, I am satisfied that the limitation on human rights is reasonable and justifiable.

The exemption power

  1. [94]
    Section 113(1) of the AD Act confers a broad and unfettered discretion upon the Commission to grant an exemption of specified provisions of the AD Act. It has been held that the purpose of s 113 of the AD Act is to allow persons the protection and security of the shield against complaints of unlawful discrimination and circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but when they are not inherently inconsistent with the AD Act.[38]
  1. [95]
    Section 48 of the HR Act must be considered when considering the application of s 113 of the AD Act.
  1. [96]
    Section 48(1) of the HR Act does not authorise an interpretation of statutory provisions which is inconsistent with their purpose, rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is "compatible with human rights".[39]
  1. [97]
    Accordingly, the next step is to consider the matters that have traditionally been considered when granting an exemption pursuant to s 113(1) of the AD Act.

Is the exemption necessary?

  1. [98]
    The proposed exemption is necessary to permit Rohde & Schwarz to lawfully perform its activities in Queensland, some of which require it to comply with the US export control laws. The effect of such compliance would amount to unlawful discrimination in so far as information about a person’s nationality, citizenship or national origin is used to determine whether a person is permitted access to Controlled Material.

Whether there are any non-discriminatory ways for achieving the objects or purposes for which the exemption is sought?

  1. [99]
    Noting the particular roles and projects that require staff of Rohde & Schwarz to have access to Controlled Material, Rohde & Schwarz submits that there are no non-discriminatory ways for achieving the purpose for which the exemption sought.
  1. [100]
    If the exemption is granted, it will be on the condition that Rohde & Schwarz will take all steps reasonably available to avoid conduct which would otherwise be in breach of ss 14, 15, 15A, 124 and 127 of the AD Act. I am, however, satisfied that, given the nature of the purpose for the exemption, that there are not any non-discriminatory ways available to achieve that purpose.

Whether the exemption is in the community interest

  1. [101]
    Rohde &Schwarz submits that granting the exemption is in the community interest as it will ensure Commonwealth contracts are adhered to which in turn "promote robust defence capabilities which are also in the community interest". Rohde & Schwarz submits that granting its application will also enable it to "lawfully" conduct its business which will:
  1. increase economic growth and development in Queensland; and
  1. create jobs in manufacturing and defence.
  1. [102]
    Rohde & Schwarz also submits that a failure to comply with the US export control laws will result in "significant financial and reputational penalties" for itself and its staff members.

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

  1. [103]
    Rohde & Schwarz notes in its submissions that although it has not sought any direct support from the Commonwealth with respect to its application, it makes the following submissions with respect to the obligation to comply with US export control laws:

The Commonwealth takes compliance with AECA and ITAR controls very seriously. Under any defence contract for the supply of material or information that could be subject to AECA and ITAR controls, compliance with all such obligations is mandatory with extensive reporting obligations on all Commonwealth contractual partners to ensure compliance and transparency. For the avoidance of doubt, the Commonwealth is also required to comply with equivalent obligations under the AECA and ITAR controls.

  1. [104]
    Rohde & Schwarz submits that the QCU does not object to its application for exemption. Similarly, it is noted that the HR Commissioner does not object to the application.
  1. [105]
    I consider it appropriate to give weight to the fact that tribunals in other jurisdiction have reached the view that the exemptions are, under the terms of similar legislation, appropriate. I have also had regard to the fact that Rohde & Schwarz has been granted similar exemptions in New South Wales.[40]

The effect of not granting the exemption

  1. [106]
    Rohde & Schwarz submits that the following may occur if the exemption is not granted, as relevantly summarised:
  1. Rohde & Schwarz will not be able to lawfully conduct its business in Queensland;
  1. Rohde & Schwarz will be unable to properly discharge its contractual obligations with the Commonwealth;
  1. there will be a subsequent loss of jobs and economic growth in Queensland;
  1. there will be a subsequent "a loss of trust" in the ability of the defence industry to operate in Queensland; and
  1. Rohde & Schwarz may be exposed to the risk of not properly complying with the relevant provisions of the AD Act or liable for breaches arising from non-compliance with the US export control laws.
  1. [107]
    I accept that if the exemption is not granted, Rohde & Schwarz would be unable to lawfully conduct its activities in Queensland in order to comply with the US export control laws. I further accept that without access to Controlled Material, Rohde & Schwarz will be unable to discharge its contractual obligations with the Commonwealth.

Term of the exemption sought

  1. [108]
    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. Having regard to the material before me and the terms of the draft order, I will grant the exemption for a period of 5 years from the date of the order.

Conclusion

  1. [109]
    For the forgoing reasons, I grant the exemption sought by Rohde & Schwarz.

Order

  1. [110]
    I will make an order in terms of Schedule A of this decision.

 Schedule A

It is ordered that:

  1. Pursuant to section 113 of the Act and subject to the conditions contained in the Schedule, an exemption is granted to the Applicant from the operation of sections 14, 15, 15A 124 and 127 of the Act for the period from 31 January 2024 to 31 January 2029.
  2. The exemption is granted in respect of the operation of sections 14, 15, 15A, 124 and 127 of the Act insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the Act) of the Applicant's workforce.
  3. The exemption permits the Applicant to engage in the following activities:
  1. Advertise positions and/or otherwise inform applicants for employment or contract work in roles which require access to Controlled Material and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
  1. are not an Australian citizen;
  2. hold, or have held, dual nationality and/or citizenship from countries other that the US or Australia;
  3. hold permanent residency in a country or countries other than the US or Australia; or
  4. have substantive contacts with countries proscribed by section 126.1 or ITAR.
  1. Request and maintain records of information from Personnel who perform or may perform work on the Rohde & Schwarz Australia's premises or offsite and who are subject to the Rohde & Schwarz Australia's control and direction for positions related to projects which use Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (l) below;
  2. Impose a condition of any offer of employment and/or reject applicants in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise;
  3. Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR in determining whether those personnel may be offered a role or allocated work that involves access to Controlled Material;
  4. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to Controlled Material;
  5. Require personnel involved in projects which access Controlled Material to notify the Rohde & Schwarz Australia of any change to their citizenship or permanent residency status, nationalities or substantive contacts;
  6. Restrict access to Controlled Material to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR;
  7. Record information relating to security clearances granted to personnel who are under the control and the direction of the Rohde & Schwarz Australia in relation to work requiring access to Controlled Material;
  8. Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
  9. Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to Controlled Material, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement or project;
  10. Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;
  11. Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, of the Rohde & Schwarz Australia's personnel in Queensland to:
  1. the US Department of State;
  2. the US Department of Commerce;
  3. the Commonwealth represented by the Department of Defence; and
  4. any other person or organisation for which, or on whose behalf, or at whose request the Rohde & Schwarz Australia undertakes work in respect of which the Rohde & Schwarz Australia has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.
    1. In this exemption:
  1. "Act" means the Anti-Discrimination Act 1991;
  2. "Applicant" means Rohde & Schwarz (Australia) Pty Ltd (ABN 78 002 328 449).
  3. "Controlled material" means material (including equipment, technology, articles and services) and information (including classified or sensitive information and technical data) to which the security requirements apply;
  4. "EAR" means the Export Administration Regulations of the US;
  5. "ITAR" means the International Trafficking in Arms Regulations of the US;
  6. "Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
  7. "Security requirements" means any of the following:
  1. requirements of Australian or US laws, including but not limited to ITAR and EAR, including requirements of any permit, licence or approval granted, or agreement made, under those laws;
  2. contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above.
  1. "US" means United States of America.

 Annex: Conditions

  1. This exemption applies only to the Applicant's conduct where:
  1. it is necessary to enable the Applicant to obtain and maintain US export licenses and approvals or to perform contractual obligations which involve access to Controlled Material;
  2. the Applicant has taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 124 and 127 of the Act, including:
  1. reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
  2. where personnel are nationals or dual nationals of a country not approved for access to Controlled Material, then the Applicant will either request the US Department of State, or request the relevant export license holders to request the US Department of State to amend the relevant export licenses to enable those personnel to have access to Controlled Material, unless the Applicant, on reasonable grounds, determines that either:
  1. the personnel are not the best candidate for the relevant position; or
  2. such an application does not have significant prospects of success,
  1. in the event the US Department of State requires the Applicant to provide further information specific to an individual, then with the consent of the individual, the Applicant will work with the individual to supply all relevant information to the US Department of State so than an application for approval may be made in relation to that individual.
  1. Where, pursuant to this exemption, the Applicant wishes to reserve the right to make a conditional offer of employment in relation to a position which will or may involve access to Controlled Material, any advertisement, invitation for expressions of interest, or other promotional information referring to the position must include the information that:
  1. the position will or is likely to require access to Controlled Material and that any individual occupying the position must be able to satisfy the ITAR-based requirements which may require specific authorisation for that individual to access Controlled Material; and
  1. if a candidate for the position is concerned as to whether or not they will satisfy the requirement in (a) above, the candidate should contact a nominated member of the Applicant's personnel who is able to provide relevant information, including information about the scope of the exemption and the candidate's individual rights.

Footnotes

[1] Section 14 of the AD Act prohibits discrimination in the pre-work area; section 15 prohibits discrimination in the work area; section 15A prohibits discrimination by a principal to a worker; section 124 prohibits a request for unnecessary information; and section 127 prohibits discriminatory advertising.

[2] Race is defined to include "colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin": Anti-Discrimination Act 1991 (Qld), Schedule 1.

[3] Affidavit of Danielle Belinda Hussey filed 20 October 2023, [31].

[4] Ibid [3].

[5] Ibid [4], [5].

[6] ITAR controls the import and export of certain defence-related articles and services including technical data, listed on the US munitions list.

[7] Affidavit of Danielle Belinda Hussey filed 20 October 2023, [11]-[16].

[8] The Queensland Industrial Relations Commission is the Tribunal for the purposes of s 113 of the AD Act.

[9] In relation to a work-related matter under the AD Act, the Tribunal is the QIRC: Schedule 1.

[10] [sic] the Application erroneously referred to an unrelated third party. It is assumed that it was intended to read, in 4(a), that the "Applicant means" "Rohde & Schwarz (Australia) Pty Ltd (ABN 78 002 328 449)".

[11] The maximum period allowable under the Anti-Discrimination Act 1991 (Qld), s 113(6)(c).

[12] Re: Kalwun Development Corporation Limited [2019] QIRC 141, [6]. 

[13] Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21. 

[14] Human Rights Act 2019 (Qld), s 3. 

[15] Ibid s 4.

[16] Ibid s 4(b).

[17] Ibid s 4(f).

[18] Re: Leidos Australia Pty Ltd [2021] QIRC 229 at [50]-[55] ('Leidos').

[19] Within Pt 2, Div 2.

[20] [2021] QIRC 229.

[21] [2022] QIRC 326.

[22] [2022] QIRC 440.

[23] Human Rights act 2019 (Qld) s 58.

[24] Affidavit of Danielle Belinda Hussey filed 20 October 2023, [31].

[25] Re: Leidos Australia Pty Ltd [2021] QIRC 229 ('Leidos').

[26] Ibid [86]-[87].

[27] Chivers v State of Queensland (Queensland Health) [2014] QCA 141 at [40].

[28] [1998] HCA 18; (1998) 193 CLR 280.

[29] Ibid at [1].

[30] Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280, [36].

[31] Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869.

[32] [2009] VCAT 1869, [285]–[287].

[33] Ibid, [390].

[35] Affidavit of Danielle Belinda Hussey filed 20 October 2023 at [25] and [13] of written submissions filed 10 November 2023.

[36] Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, [312].

[37]Ibid [312].

[38] Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52, [9] per DP Swan.

[39] The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54, [117] per Applegarth J.

[40] Applicant's written submissions filed 10 November 2023, [25].

Close

Editorial Notes

  • Published Case Name:

    Re: Rohde & Schwarz (Australia) Pty Ltd

  • Shortened Case Name:

    Re: Rohde & Schwarz (Australia) Pty Ltd

  • MNC:

    [2024] QIRC 16

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    31 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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