Re: Saab Australia Pty Ltd[2025] QIRC 21

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   The Applicant, Saab Australia Pty Ltd ('Saab' or ‘Saab Australia’), seeks an exemption for five years, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') from ss 14, 15, 15A, 124 and 127 of the AD Act, insofar as they relate to ‘race’.^[1][2]

2. [2]
   The exemption sought concerns employees or contract workers of the Applicant who are required to access US Defence Technology sourced from the US. Saab submits that the exemptions will enable Saab Australia to perform its obligations under Commonwealth and External Contracts.^[3]

3. [3]
   The application was accompanied by an affidavit of Mr Andrew Giulinn, Head of Ethics and Compliance for Saab Australia. The affidavit is 20-pages in length and provides background, context and information regarding the measures to be continued and implemented by the Applicant if the exemption is granted. Annexed to the affidavit are 11 exhibits providing additional information in support of the affidavit's content.

Procedural Matters

4. [4]
   On 30 October 2024, I ordered that Saab give notice of the Application by providing the Application and Affidavit to the following interested parties: the Applicant's Queensland employees, contractors and other workers; the Queensland Council of Unions; and the Ethnic Communities Council of Queensland.^[4]

5. [5]
   I also ordered that the Queensland Human Rights Commission ('QHRC') provide notice of the Application in its newsletter by no later than 4.00pm on 8 November 2024. That notice was to include information for interested parties who wished to make submissions and/or appear at the hearing of the Application and state that unless any interested party advises the Industrial Registry by 12 noon on 11 December 2024 that they wish for the matter to proceed to an oral hearing, the matter would be dealt with on the papers. By email dated Friday 8 November 2024, the QHRC confirmed that it had distributed a 'special edition newsletter' containing the Notice of Application for Exemption.

6. [6]
   On Saturday 9 November 2024, a person named Catherine Brown sent an email to the Industrial Registry titled 'Feedback on Saab Australia Pty Ltd application for exemptions under the Anti-Discrimination Act'. It is not known to me whether or on what basis Ms Brown has a connection to the Applicant or if she is an interested member of the public. In that email, Ms Brown raises 'concerns about the implications of the request' suggesting that some of the language used in the application could be clearer. Ms Brown states that while Saab's concerns are understandable, she encourages the Commission to ensure that nationality, ethnicity or place of birth do not become the sole basis for employment decisions. Ms Brown seeks that the QIRC 'mandates that Saab Australia Pty Ltd demonstrates that they have a more comprehensive approach to security risk assessment'.^[5] Ms Brown does not state that she objects to the exemption being granted.

7. [7]
   On Thursday, 21 November 2024, the Queensland Council of Unions ('QCU') filed submissions. The QCU noted that the exemption being sought by the Applicant is for similar reasons as considered by the Commission in a number of recent cases.^[6] The QCU submits that should the Commission determine the Applicant's circumstances to be analogous to the Applicants in those recent matters it cites, the QCU does not object to the granting of an exemption if it is subject to the relevant conditions as was the case in those matters.

8. [8]
   On Friday 29 November 2024, Saab filed supplementary submissions in support of its application.

9. [9]
   On Wednesday 4 December 2024, the QHRC wrote to the Commission stating that it does not intend to make any submissions in the matter and has no objection to the matter being decided on the papers.

10. [10]
    Following a mention on 19 December 2024, I directed Saab to provide a copy of the draft orders sought by 16 January 2025. Saab filed the draft orders sought on 14 January 2025. That order also invited any party wishing to make further submissions in response to the draft order to do so by 12 noon on 23 January 2025. No party made further submissions.

11. [11]
    As no party has sought an oral hearing of the matter, I will consider the matter on the papers.

Relevant background

Company Structure

12. [12]
    Saab is 'part of the global Saab group, being one company of a large number worldwide that are ultimately owned by Saab AB, a Swedish company listed on the Nasdaq Stockholm Stock Exchange'.^[7]

13. [13]
    Saab has operated in Australia since 1988,^[8] delivering contracts either directly with the Government of the Commonwealth of Australia or as a contractor in the supply chain for delivery of goods and/or services to the Commonwealth.^[9] Saab has also been contracted 'as part of the supply chain for delivery to other Governments, predominantly Navies, all around the world, including as a subcontractor to Saab's ultimate parent company Saab AB in Sweden'.^[10]

14. [14]
    The Saab Queensland facility is located in Bundamba and was built in 2022 to assist with servicing a contract to deliver a 'Deployable Health Capability' to the Australian Defence Force. Saab expects that as that contract continues and it enters into other contracts, 'a cohort of Saab's workers in Queensland will likely require access to 'materials',^[11] the subject of this application for exemption.^[12]

Saab's business activities and contractual arrangements with the Commonwealth and other entities

15. [15]
    In Australia, Saab's products and services are technology-focused and range from military defence to security for critical and high security facilities.^[13] Mr Giulinn describes Saab's major contracts with the Commonwealth in his affidavit at paragraph [16] and lists some of Saab's contractual arrangements with other companies where, at paragraph [17], he states that the Commonwealth is the 'end user or ultimate beneficiary of the goods and services delivered by Saab, also imposing export controls requirements'

Export and Import Controls

16. [16]
    Mr Giulinn extensively describes that export and import control regime under which Saab operates from [18] – [31] of his affidavit. To this end, Mr Giulinn states that:

1. 18.
   In many cases, national governments, including the US Government, impose various forms of regulatory control to ensure that the export and import of defence related technology or material is consistent with national security interests and international obligations. Very recently, Australia passed amendments to its own export control legislation, the Defence Trades Controls Act 2012 (Cth), via the Defences (sic) Trade Controls Amendment Act 2024 (Cth) (DCTA Act). The DTCA Act came into operation on 1 September 2024.

17. [17]
    In supplementary submissions, Saab addresses recent amendments to the Defence Trade Controls Act 2012 (Cth) ('DTC Act'). As of 1 September 2024, it is an offence to supply controlled defence-related goods and technology to a 'foreign person'.^[14] This means that Saab is required to collect information pertaining to nationality from its workers in order to ascertain who can access defence-related goods and technology so it does not commit an offence under the DTC Act.^[15]

18. [18]
    Mr Giulinn states that in order for Saab to perform its contractual obligations, access to US origin equipment is required by Saab personnel and/or information about US origin equipment, components or technology (e.g. software) is provided to Saab, and access to such information is required by Saab personnel.^[16] In order to meet its contractual obligations to the Commonwealth or in the supply chain that ultimately delivers to the Commonwealth, Saab may be required to enter into subcontracts with US companies or be in receipt of critical goods and services, also subject to export/import controls that the Commonwealth has with the US Government or the Commonwealth or its contractors have with US companies.^[17]

19. [19]
    Mr Giulinn says that Saab is impacted by the need to comply with the export controls imposed by the US Government, including the potential restriction of access to information/materials by individual Saab personnel. Further, Mr Giulinn says that a similar situation occurs if Saab is engaged as part of the supply chain for the export of goods or services, with end use by a foreign government.

20. [20]
    Mr Giulinn describes the two main US export control regimes affecting Saab's business and the implementation of the Commonwealth Contracts and External Contracts:^[18]

1. International Traffic in Arms Regulations (ITAR), issued by the US Government to implement the US Arms Export Control Act 22 USC ? 2778 (2004) (1976) (AECA). ITAR is administered and enforced by the US Department of State (DoS).

2. Export Administration Regulations (EAR), issued by the US Government to implement the Export Administration Act 1979. EAR is administered and enforced by the US Department of Commerce.

21. [21]
    Mr Giulinn states that the US Government applies restrictions to the movement of what he collectively refers to as 'materials':^[19]

1. technical data, materials, equipment, information and technology (including software) deemed to be 'Defence Articles' and 'Defence Services' for the purpose of the ITAR;

2. all US origin technical data, materials, equipment, information and technology (including software) listed in the Commerce Control List (CCL) published by the US Government, under EAR (with some exceptions); and

3. foreign-produced items derived from or incorporating US origin materials (also, under the EAR, with some exceptions).

22. [22]
    Mr Giulinn says that the ITAR controls the import to and export from the US of materials that are or provide information about "Defence Articles", which are military and defence technologies listed in the United States Munitions List (USML) published by the US Government. These restrictions include the need for all receiving parties, however far along the supply chain they are, to be named on US Government export approval documentation.^[20]

23. [23]
    Mr Giulinn says that the EAR controls the import to and export from the US (and beyond, however far along the supply chain) of items and information listed in the Commerce Control List ('CCL'). Mr Giulinn says that these are sometimes referred to as 'dual use', meaning they are able to be used for military or defence purposes.^[21]

24. [24]
    Mr Giulinn says that the restrictions continue to apply throughout the lifespan of the 'materials'. This includes if a device or system is made in Australia incorporating a small piece of export-controlled material.^[22]

25. [25]
    With regard to the DTC Act, Mr Giulinn says the Act now places restrictions on the movement of controlled goods and technology and will restrict who Saab can share controlled goods and technology with, including in relation to its own workers in Australia. While exemptions under the DTC Act will apply to Saab's workers in many instances, Saab will still be required to collect data pertaining to nationality from its workers in order to comply with s 10A of DTC Act.^[23]

Restrictions placed on Saab based on nationality

26. [26]
    Mr Giulinn states that to meet the requirements of the Commonwealth Contracts and External Contracts, Saab and its staff are required to access and use technical data about the 'materials' Saab needs to 'use or interface to' and, therefore, it must comply with the conditions imposed by the relevant US export regime, being either the ITAR or EAR. These US Government export control regimes not only impose restrictions on Saab as a company but also the individual staff personnel who can access the materials. Mr Giulinn states that in many cases, this restriction is based on the nationality of the staff member meaning that Saab must impose access restrictions on its staff who access 'materials' based on nationality.^[24] Relevantly, under ITAR:

1. a person is a 'National' of a country if they hold, or have held, citizenship of that country, or hold permanent residency of that country;

2. a 'Third Country National' refers to a person who is not a "national" of Australia but is a "national" of a country other than Australia; and

3. a 'Dual National' is a person who is a "national" of Australia, as well as of another country.

27. [27]
    While the EAR also imposes restrictions on access and/or possessions by individuals, this is based on a 'slightly different definition of "nationality"'.

28. [28]
    Mr Giulinn states that Commonwealth Contracts and External Contracts are 'highly sensitive commercial documents and, accordingly, are unable to be disclosed in full to the Tribunal'.^[25] However, from paragraphs [37] – [45] of the affidavit, Mr Giulinn provides some paragraphs and extracts from some of those contracts to demonstrate the obligations imposed on Saab. Annexed to the affidavit are further extracts of relevant clauses of the agreements.^[26] It is clear from these documents that the relevant contracts contain requirements to comply with export authorisations and approvals and to comply with the laws in force in the relevant jurisdictions.

Requirement to establish nationality of its personnel

29. [29]
    Mr Giulinn states that for Saab to deliver the requirements of the Commonwealth Contracts, External Contracts and to comply with the DTC Act, it needs to request information from its existing personnel, and potential employees or contract workers, pertaining to nationality. Further, Saab needs to keep records of information pertaining to nationality and make decisions based on this information.^[27] Further elaborating on this point, Mr Giulinn states:

1. 47.
   Saab is not authorised to receive, hold, access or use (and, by corollary, to on-transfer) ITAR- or EAR-controlled Materials, unless it is named on an authorisation issued by the US Government. Once the authorisation has been granted, only eligible employees can hold, access and use the Materials. For example, Third Country and Dual Nationals are not permitted access, unless an exemption under ITAR or EAR (as applicable) applies.

1. 48.
   Additional restrictions apply to those countries listed in section 126.1 of the ITAR. These are countries for which there is either a blanket policy of denial (no export authorisations will be granted by the US Government) or a presumption of denial (export authorisations will only be granted by the US Government in special circumstances) (Proscribed Countries).

1. 49.
   There are a number of different types of export authorisations possible for ITAR-controlled Materials. Most types of ITAR export authorisation provide for some exemptions to the default positions (which is that Third Country or Dual National personnel of the approved recipient, e.g. Saab, are not permitted access).

1. 50.
   The types of ITAR export authorisation relevant to any particular situation (and the available exemptions) are determined by:

1. i.
   the nature of the Materials (e.g. equipment as opposed to information/data, classified materials as opposed to unclassified materials); and

1. ii.
   the source of the Materials, broadly falling into three categories:

1. 1.
   from the US Government;

1. 2.
   from a US (private) supplier; or

1. 3.
   from a non- US recipient who holds the Materials under a previous export authorisation (for example, when the Commonwealth is looking to a Defence industry member such as Saab to perform sustainment services in relation to Materials already held by the Commonwealth).

1. 51.
   Some obligations are built into the ITAR wording itself and so apply across the board, while some are written into the specific authorisation or an accompanying ITAR-specific-agreement. In the latter cases, the US export controls are imposed on Saab by the wording of the export authorisations or the agreement – and Saab rarely has an opportunity to influence or control what is written into an authorisation or agreement, which is predominantly mandatory clauses dictated by the US Government.

1. 52.
   In some cases, a request can be made in relation to a particular ITAR export authorisation, to have the US Government either:

1. i.
   specifically approve people with a with a particular nationality; or

1. ii.
   specifically approve a particular person (by giving details regarding that person, including nationality).

to have access to the ITAR-controlled Materials relevant to that authorisation. The latter can take 9-15 months, and neither may be successful. Given the lengthy process, the uncertainty regarding the success of any such application and the requirement to expose to a foreign (the US) Government, intimate details of an individual's private circumstances in support the application, requests of this nature are not considered practical or feasible.

1. 53.
   Saab is an authorised recipient of ITAR-controlled Materials in almost 140 ITAR export authorisations. Compliance with the requirements of ITAR, and the conditions set out in each of those export authorisations, including with respect to the access and use of the relevant ITAR-controlled Materials by individual Saab personnel, is required so that Saab can access ITAR-controlled Materials for the purpose of delivering its obligations under the Commonwealth Contracts and External Contracts, as will be the case for further such contracts.

1. 54.
   As of 3 October 2024, Saab had 1071 workers (including 48 contract employees) across Australia, with 39 of those workers (including nine contract employees) across Australia, with 39 of those workers (including nine contract employees) located in Queensland. As an example, over 700 workers are in roles that required approval to access Materials in the form of controlled technology governed by ITAR.

1. 55.
   Saab is required to establish the nationality of its personnel who may require access to ITAR-controlled Materials or controlled technology and goods under the DTCA Act, in order to:

1. i.
   check whether the person is an Australian National only and/or holds Australian Citizenship;

1. ii.
   ensure that the person is not a National of a Proscribed Country;

1. iii.
   put the person through a screening process to ensure they don't have substantive contracts with certain countries;

1. iv.
   apply for an Australian Security Clearance in respect of the individual concerned because the project of Materials used on the project are subject to Australian security classification;

1. v.
   disclose that information to a US supplier who needs to apply for and obtain (or seek amendment to) US export authorisation such that it authorises the employee to access and use ITAR-controlled Materials as required for the employee to perform their role at Saab; and

1. vi.
   obtain details of any other Nationality or Nationalities held, such as to allow Saab to assess the individual's eligibility for access under ITAR/EAR and the specific US export approval or exception relevant to the Materials in question.

Consequences of non-compliance

30. [30]
    From paragraphs [56] – [65] of his affidavit, Mr Giulinn addresses the consequences of non-compliance with US export controls and the DTC Act. Mr Giulinn states that if Saab is unable to comply with the obligations imposed by US export controls, including the requirements of the ITAR and EAR, it would be difficult or impossible to continue to operate in the Australian defence and military industry. Further, Mr Giulinn states that the US Government may refuse or revoke authorisations involving Saab. If this occurs, Mr Giulinn says that Saab would be severely restricted in the nature and extent of work it can do for the Commonwealth or other foreign governments.^[28]

31. [31]
    In summary, Mr Giulinn states that non-compliance would affect: Saab's business and ability to win future contracts; competition in the marketplace; and remove a potential employer of people in Queensland who have expertise in relevant Defence or military areas.^[29]

32. [32]
    Non-compliance with the ITAR could put Saab at risk of severe penalties under US law.^[30] This could be 'fundamentally detrimental' to Saab's operations in Queensland.^[31] There are also risks of consequences if the US Government pursues Saab under the AECA (including ITAR).^[32]

33. [33]
    Mr Giulinn states that similar risks arise from non-compliance with EAR and notes that contravening s 10A of the DTC Act can attract imprisonment for 10 years or a fine comprising 2,500 penalty units.^[33]

Measures to be continued by the applicant if the exemption is granted

34. [34]
    Mr Giulinn says that Saab's workers (employees and contract workers) currently undertake mandatory training on discrimination, bullying and harassment when commencing at Saab and thereafter.^[34] The Saab Code of Conduct^[35] sets out Saab's expectations of itself and its staff, including in relation to discrimination, bullying and harassment. Saab also has policies relating to discrimination, bullying and harassment in the workplace.^[36]

35. [35]
    Mr Giulinn states that relevant Saab employees and contractors are trained via an internal Saab online training module regarding export control concepts generally.^[37] Those who are engaged in roles that will require or allow them to access ITAR-controlled materials are trained specifically about ITAR. There are also requirements for those with access to specific materials to read the ITAR export authorisation documentation and other material which contains any specific rules relating to individuals, based on their nationality that apply to those materials under the export authorisation.^[38] Those in roles such as Project Managers responsible for the care and control of ITAR-controlled materials have access to additional information.^[39]

Additional measures to be implemented by the applicant if exemption is granted

36. [36]
    Should the exemption be granted, Mr Giulinn states that Saab will implement 'appropriate processes and controls to ensure that the gathering, storage and use of nationality information is appropriate and secure'.^[40] Specifically, Mr Giulinn states that these measures will ensure the monitoring of compliance with the exemption; that any adverse effects of the exemption are addressed and minimised; privacy of individuals is ensured; and the information is used only for lawful purposes as permitted by the exemption.^[41] Mr Giulinn also describes how nationality data will be securely collected and stored^[42] and appropriately used.^[43]

37. [37]
    Mr Giulinn further states that Saab will take steps to minimise any potential adverse impact on applicants and employees such as: clearly explaining the reason for collecting nationality information in job postings and application processes; limiting the collection of nationality information to positions with genuine requirements to access material; and ensuring nationality data is stored securely and confidentially accessed only by personnel with a legitimate need to know the information and who have been trained regarding exemption and the scope of the exemption.^[44]

The exemption sought by Saab

38. [38]
    The Applicant seeks that the exemption be granted subject to the exemption and conditions identified in its draft orders sought filed on 14 January 2025. The Applicant says that those conditions reflect the conditions imposed in the recent decided cases of the Commission while also taking into account the requirements and recent amendments to the DTC Act which commenced on 1 September 2024. The exemption and conditions sought are as follows:

Exemption

1. 1.
   Pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) (AD Act) and subject to the conditions contained in the Schedule, an exemption is granted to Saab Australia Pty Ltd (Saab) from the operation of sections 14, 15, 15A, 124 and 127 of AD Act for the period [insert date] 2025 to [insert date] 2030.

1. 2.
   The exemption is granted in respect of the operation of sections 14, 15, 15A, 124 and 127 of AD Act insofar as those sections relate to the 'race' (as that attribute is defined in s 4 of the AD Act) of Saab's workforce

1. 3.
   The exemption permits Saab to engage in the following activities in the State of Queensland:

Applicants for employment

1. a.
   Advertise positions and/or otherwise inform applicants for employment or contract work in roles which require access to material controlled under the AECA (including the ITAR) the EAR and the DTCA (altogether, 'the Controls')) and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws (Controlled Material) that they may be adversely affected by the Controls if they:

1. i.
   are not an Australian citizen; or

1. ii.
   hold, or have held, dual nationality and/or citizenship from countries other than Australia; or

1. iii.
   hold permanent residency in a country or countries other than Australia.

Request for information about nationality

1. b.
   Request and maintain records of information from prospective employees/contract workers and current employees/contract workers of Saab who are subject to Saab's direction and control and who perform or may perform work on Saab's premises or offsite (Personnel) which involves access to or use of Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities (Nationality), provided the request for information is limited to information for the purposes of paragraphs (c) to (j) below:

Use of nationality information

1. c.
   Impose a condition of any offer of employment in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to the Controls, be authorised to access that Controlled Material;

1. d.
   Take into account a person’s Nationality in determining whether those Personnel may be offered a role or allocated work that involves access to Controlled material;

1. e.
   Require Personnel involved in projects or roles which involve access to or use of Controlled Materials to notify Saab of any change to their Nationality;

1. f.
   Restrict access to Controlled Material to particular Personnel based on their Nationality;

1. g.
   Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;

1. h.
   Maintain records of the Nationality of persons who have or will have access to Controlled Materials, 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;

1. i.
   Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;

1. j.
   Disclose, if and when required, Nationality, of Saab’s personnel in Queensland to:

1. i.
   The US Department of State;

1. ii.
   The US Department of Commerce;

1. iii.
   The Australian Department of Defence; and

1. iv.
   other organisations with which Saab interacts regarding the Controlled Material, including but not limited to performing work under a contract between Saab and the other organisation.

1. 4.
   In this exemption:

1. a.
   "AECA" means the US Arms Export Control Act, which includes ITAR;

1. b.
   "DTCA" means the Defence Trade Controls Act 2012 (Cth);

1. c.
   "ITAR" means the US International Traffic in Arms Regulations;

1. d.
   "EAR" means the US Export Administration Regulations;

1. e.
   "US" means United States of America.

Conditions

1. 1.
   The exemption applies only to the Applicant's conduct where:

1. a.
   it is necessary to enable the Applicant:

1. i.
   to obtain and maintain export licences, authorisations and/or approvals;

1. ii.
   to perform contractual obligations involving access to material (including equipment, technology, articles and services) and information (including classified or sensitive information and technical data) subject to security requirements under the laws of Australia or the United States of America (Controlled Material); and

1. iii.
   to comply with the requirements of the Defence Trade Controls Act 2012 (Cth) (DTC Act), and the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) issued by the United States Government; and

1. b.
   the Applicant has taken all steps that are reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) (the Act) (including by relying on any available exemptions, exceptions or similar in the DTC Act, ITAR and/or EAR).

2. 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 will identify that:

1. i.
   the position will, or is likely to, require access to Controlled Material and that any individual occupying the position must be able to satisfy any applicable requirements under the DTC Act, the ITAR and the EAR.

1. ii.
   if a candidate for the position is concerned as to whether or not they will satisfy that requirement, the candidate should contact a nominated staff member of the Applicant who is able to provide relevant information, including information about the scope of this exemption and the candidate's individual rights.

1. 3.
   The Applicant must provide to the Queensland Human Rights Commission a written report for every 12-month period from the date of this exemption order, which must:

1. c.
   be provided within 21-days of the end of the relevant reporting period; and

1. d.
   detail:

1. iii.
   the steps the Applicant has taken to comply with the terms of the exemption;

1. iv.
   the number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and

1. v.
   the implementation of, and compliance generally with the terms of, the exemption.

1. 4.
   Where, in the exercise of the exemption, any employee or contract worker is moved from a project involving the use of Controlled Material to any other work controlled by the Applicant or any of its related entitles, the Applicant 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.

1. 5.
   Where the Applicant uses a system of security passes to reflect the fact of access to Controlled Materials, the passes may be coded but not in such a way as to identify the nationality, country of birth and/or current and past citizenship of the person.

1. 6.
   The Applicant will restrict access to all information relating to nationality, country of birth and current and past citizenship to [Human Resources Officers and IT and Compliance Staff] or their properly appointed nominees on a 'need to know' basis.

1. 7.
   The Applicant will amend its employment policies as soon as reasonably practicable 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 applicable laws.

The relevant legislative provisions

The AD Act

39. [39]
    Pursuant to s 174B(b) of the AD Act, the Commission has the power to grant exemptions in relation to work related matters.

40. [40]
    Section 113(1) of the AD Act provides that, on application by a person, the Commission may grant an exemption from the operation of a specified provision of the Act. Section 113 states:

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

2. 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or

3. 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.

…

6. An exemption-

1. may be granted subject to such terms as the tribunal provides; and

2. may be granted to it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and

3. is to be granted for a specified period of not more than 5 years.

7. 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.

….

41. [41]
    The Applicant seeks exemption for a period of five-years.^[45] While the application does not specifically state that the exemption is sought with regard to s 7(g) of the AD Act, it is clear that this is the intention. Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of 'race'.

42. [42]
    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 work.

43. [43]
    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 worker's access to opportunities at work, and the general unfavourable treatment of a worker in any way in connection with work.

44. [44]
    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.

45. [45]
    Section 124 of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based.

46. [46]
    Section 127 of the AD Act prohibits the publication and display of advertisements which in any way contravene the AD Act.

47. [47]
    In Re: Jet Aviation^[46] Deputy President Hartigan stated:^[47]

1. [34]
   The exercise of the discretion conferred by s 113 of the AD Act on the Tribunal is broad and unfettered.^[48] However a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.^[49] These considerations include:

1. whether the exemption is necessary;
2. whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
3. whether the exemption is in the community interest;
4. whether any other person or body, other than the applicant, support the application;
5. whether it is reasonable and appropriate to grant the exemption; and
6. the effect of not granting the exemption.

The HR Act

48. [48]
    In Re: Jet Aviation Deputy President Hartigan addressed the requirement for the Tribunal to consider any relevant matters arising in accordance with the Human Rights Act 2019 (Qld) (‘HR Act’) and considered the main objects of the HR Act. I have been assisted by and respectfully adopt her Honour’s description and consideration of the HR Act as set out below:

1. [37]
   Section 3 of the HR Act provides that the main objects^[50] of the HR Act are to protect and promote human rights, to help build a culture in the Queensland public section that respects ad promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.

1. [38]
   The way in the which the HR Act provides that the main objects are to be achieved^[51] include, inter alia, by:

1. requiring public entities to act and make decisions in a way that is compatible with human rights;^[52] and
2. 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.^[53]

1. [39]
   Section 58[1] of the HR Act provides that it is unlawful for a public entity to:

1. make a decision in a way that is not compatible with human rights; or
2. in making a decision, fail to give proper consideration to a human right relevant to the decision.

1. [40]
   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. [41]
   It has been accepted^[54] 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. [42]
   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
2. in making a decision, to fail to give proper consideration to a human right relevant to the decision.

….

5. For subsection (1)(b), giving proper consideration to a human right in making a decision includes but is not limited to-

1. (a)
   identifying the human rights that may be affected by the decision; and

1. (b)
   considering whether the decision would be compatible with human rights.

6. 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

2. 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. [43]
   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^[55] 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.
2. Every person has the right to enjoy the person's human rights without discrimination.
3. Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
4. Every person has the right to equal and effective protection against discrimination.
5. Measures taken for the purpose of assisting or advancing persons or groups of person disadvantaged because of discrimination do not constitute discrimination.

1. [44]
   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. [45]
   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
2. limits a human right only to the extent that it is reasonable and demonstrably justifiable in accordance with section 13.

1. [46]
   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.
2. 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;
2. 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;
3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
4. whether there are any less restrictive and reasonably available ways to achieve the purpose;
5. the importance of the purpose of the limitation;
6. the importance of preserving the human right, taking into account the nature and extent of the limitation of the human right;
7. the balance between the matters mentioned in paragraphs (e) and (f).

Section 48 of the HR Act applies

1. [47]
   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.
2. 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
2. the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and
3. a public entity, to the extent the public entity has functions under part 3, division 4.

3. Subsection (2) does not limit or otherwise affect-

1. another function conferred by this Act on an entity mentioned in the subsection; or
2. a function conferred by this Act on any other entity.

4. Nothing in this Act makes the state liable to be prosecuted for an offence.

1. [48]
   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. [49]
   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.
2. If a statutory provision cannot be interpreted in a way that 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.
3. 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.
4. This section does not affect the validity of –

1. an Act or provision of an Act that is not compatible with human rights; or
2. 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.

5. This section does not apply to a statutory provision the subject of an override declaration that is in force.

49. [49]
    Saab does not submit that s 25 of the AD Act, which addresses genuine operational requirements, is enlivened in the application. As a result, I will not consider that provision.

Applying the HR Act to this matter

50. [50]
    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 considering the effect of the exemption should it be granted.^[56]

51. [51]
    The effect of the exemption sought by Saab would be to permit it to seek and use personal information with respect to a person's nationality, citizenship or country of birth in circumstances where that person will be undertaking particular work within its business. The exemption requested would allow Saab to lawfully discriminate on the basis of race in the pre-work and work area and be exempt from the application of ss 124 and 127 of the AD Act. The relevant human rights affected here are those contained in ss 15(3) and 15(4) of the HR Act, that being the entitlement to equal and effective protection of the law without discrimination and the right to equal and effective protection against discrimination. Given the exemption will limit the right to equal recognition and equality before the law, it is necessary to apply s 13 and determine whether the proposed limitations are reasonable and justifiable.

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

52. [52]
    In Re Jet Aviation, Deputy President Hartigan referred to previous decisions^[57] where she considered the equivalent right in the Victorian Charter, which was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination):^[58]

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, i.e. 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.

53. [53]
    Deputy President Hartigan noted that in Lifestyle Communities^[59] 'it was considered that it was a common feature of exemption applications 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'.^[60] Her Honour also said:

1. [61]
   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. Further, it was noted that the tribunal in such a circumstance, is the guardian of the human rights of the community in these applications.

54. [54]
    I respectfully adopt Deputy President Hartigan’s consideration set out above, with regard to the nature of the human right affected in this matter.

Section 13(2)(b) - the nature of the purpose of the limitation

55. [55]
    Section 13(2)(b) requires consideration of the nature of the purpose of the limitation and whether it is consistent with a free and democratic society based on human dignity, equality and freedom.

56. [56]
    The exemption sought by Saab will entail the collection and use of nationality and national origin information for the purpose of determining whether people are to be employed or given employment tasks in order to comply with US export control laws and the DTC Act. The collection of information about nationality and national origin is not consistent with a free and democratic society based on human dignity, equality and freedom. However, I accept that the purpose of the limitation is to enable Saab to comply with US export control laws and the DTC Act in order to meet contractual obligations. I further accept that the purpose of the limitation is to ensure that Saab and its personnel are not subject to possible serious sanctions or other consequences if US export control laws and the DTC Act are not complied with.

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

57. [57]
    The purpose of the exemption application is to comply with US Export laws and the DTC Act. The limitation on the relevant human rights is evidently related to the purpose of the orders sought. The exemption sought will provide a means by which the purpose can be achieved. The US Export laws require that a process exists to identify the race or nationality of employees and to determine whether Saab complies with the requirements set out by those laws. The exemption sought is necessary for Saab to continue to fulfil its contractual obligations and its commercial operations.

58. [58]
    There is a clear relationship between the terms of the limitation on human rights and the purpose for seeking the limitations. Having considered the application and the affidavit of Mr Giulinn, I am satisfied that the terms of the of the proposed exemption helps to achieve the purpose for which the exemption is sought.

59. [59]
    It appears to me that the exemption sought is only in relation to Saab's compliance with US export control laws and the DTC Act. I am of the view that that conditions and orders sought do not go beyond what is required to achieve the purpose.

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

60. [60]
    I have considered Mr Giulinn's submission that Saab must undertake the required conduct subject of the exemption application to fulfil its contractual obligations with the Commonwealth and other entities by complying with the ITAR and EAT and the DTC Act.

61. [61]
    I accept that Saab must acquire and utilise data regarding the nationality, citizenship and national original information of its workers, potential workers and contractors. I am satisfied that there is no less restrictive way or any other reasonable available ways to achieve the purpose.

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

62. [62]
    As observed by Deputy President Hartigan in Jet Aviation, '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 it to protect the values of substantive equality, universal humanity, autonomy and worth of the individual and their protection for personal and social development'.^[61] I echo Deputy President Hartigan's statement that 'such important rights must not be limited without good reason'.^[62]

63. [63]
    Mr Giulinn's affidavit addresses the consequences which arise if the exemption is not granted. These matters are summarised above from paragraphs [27]-[30] of this decision.

64. [64]
    Saab have stated that the exemption is only sought with regard to those employees and parts of its business that deal with 'controlled material'. I am satisfied that the exemption requested does not go further than necessary to meet the purpose for which it is sought. In my view, the nature of the request is legitimate and of sufficient seriousness to limit the affected human rights. I note the steps Saab will undertake to ensure the limitation is not implemented any further than is necessary. As Deputy President Hartigan found in the analogous matter of Jet Aviation, I find the limitation to be proportionate to and appropriate for achieving the purpose.^[63]

65. [65]
    I am satisfied that the limitation on human rights is reasonable and justifiable.

The exemption power provided for by s 113 AD Act

66. [66]
    In Jet Aviation, Deputy President Hartigan observed that:^[64]

…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.

67. [67]
    Having considered the relevant human rights considerations above, I turn to s 113 of the AD Act and the considerations set out above at paragraph [47] of this decision. The Applicant has addressed these considerations in Schedule 1 – Grounds of Application attached to its application filed on 25 October 2024 and in the proposed orders sought which were filed on 14 January 2025. The Applicant's Grounds of Application and Mr Giulinn's Affidavit are largely addressed above from paragraphs [11] – [34] of this decision.

Whether the exemption is necessary

68. [68]
    Having regard to the filed material, I am satisfied that in order for Saab to deliver the requirements of Commonwealth Contracts, External Contracts and to comply with the DTC Act and US import and export control regimes set out in the ITAR and EAR, Saab needs to request information pertaining to nationality from its existing personnel, potential employees and contract workers. I further accept that Saab is required to keep records of information pertaining to nationality and to make decisions based on the information.

69. [69]
    The conduct required in order for Saab to request such information and record it and use it as a basis for decision-making may contravene the AD Act. Therefore the exemption requested by Saab is necessary to permit it to lawfully perform its required activities.

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

70. [70]
    Saab states that it must undertake the required conduct in order for it to fulfil its contractual obligations with the Commonwealth and other entities and to comply with Commonwealth and US laws. Saab submits, and I agree, that there are no non-discriminatory ways of achieving the objects or purposes for which the exemption is sought.

71. [71]
    If the exemption is granted, it will only apply to conduct where such conduct is necessary in order to achieve the purpose for which the exemption is sought. The conditions Saab seeks require it to take all steps that are reasonably possible to avoid engaging in conduct which would otherwise be in breach of ss 14, 15, 15A, 124 and 127 of the AD Act.^[65]

72. [72]
    Having considered the purpose for which the exemption is sought, I am satisfied that there are no non-discriminatory ways to achieve the objects or purposes for which the exemption is sought.

Whether the exemption is in the community interest

73. [73]
    Saab submits that public interest considerations support the granting of the exemption both at a national level involving Australia's defence capabilities and at a local level, involving the employment and economic benefits likely to be brought to Queensland arising from Saab being able to enter into and fulfil contracts. These matters are addressed above at paragraph [31].

74. [74]
    I am satisfied that it is in the community interest for Saab to be able to continue to fulfil current contracts and to enter into new contracts without breaching contractual obligations or being exposed to civil and criminal penalties.

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

75. [75]
    As noted at paragraph [9] of this decision, the QHRC makes no submission with regard to the application. The QCU supports the application if the orders made are in terms similar to analogous cases. One member of the public sent an email to the Commission raising a number of matters but that email addressed policy and legislative matters and made suggestions beyond the scope of the task before the Commission in considering this application.

The effect of not granting the exemption

76. [76]
    The Applicant's submissions addressing the consequences of not granting the exemption are set out above from paragraphs [29] – [32] of this decision. I note that these are also summarised in the grounds for application:^[66]

• Saab may suffer significant financial penalties for breaches of its contractual and security obligations;

• it may commit an offence in breach of the Act;

• It will be difficult for it to obtain future Commonwealth contracts and operate in the Australian defence and military industry as the US Government may refuse or revoke authorisations involving the Saab;

• it will suffer substantial financial and employment loss;

• the progress and completion of significant Australian defence projects may be delayed; and

• there may be an adverse impact on the Queensland economy and employment opportunities for Queenslanders.

77. [77]
    I accept that significant impacts such as those outlined above at [75] would result should the exemption not be granted. In those circumstances, I consider it is appropriate and reasonable to grant the exemption requested.

Term of the exemption sought

78. [78]
    Pursuant to s 113(6)(c) of the AD Act, an exemption 'is to be granted for a specified period of not more than 5 years'. The exemption is granted for a period of 5 years from the date of the order.

Conclusion

79. [79]
    For the foregoing reasons, the exemption sought by the Applicant is granted.

Order

80. [80]
    I order in terms of Schedule A of this decision.