QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Leidos Australia Pty Ltd [2021] QIRC 229
	
PARTIES:	
	Leidos Australia Pty Ltd
(Applicant)
	
CASE NO:
	AD/2020/63
	
PROCEEDING:
	Application
	
DELIVERED ON:
	28 June 2021	
MEMBER:

HEARD AT:

HEARING DATE:	Hartigan IC

Brisbane

11 November 2020
	
ORDER:	1.	The Orders are in terms set out in Schedule A in the reasons for the decision. 
	
CATCHWORDS: 

LEGISLATION:

	INDUSTRIAL LAW – DISCRIMINATION –   exemptions – 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 US export control laws – exercise of discretion

Anti-Discrimination Act 1991 (Qld), s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s127, s 174B

Charter of Human Rights and Responsibilities Act 2006 (Vic), s 43

Constitution of Queensland Act 2001

Equal Opportunity Act 2010 (Vic), s 26

Export Administration Regulations (US)

Human Rights Act 2019 (Qld), s 3, s 4, s 5, s 7, s 8, s 9, s 13, s 15, s 25, s 48, s 58

Industrial Relations Act 1988 (Cth)

Industrial Relations Act 2016 (Qld), s 174B, s 544

US Arms Export Control Act

US International Traffic in Arms Regulations
	
CASES:	Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

BAE systems Australia Defence Pty Ltd – Exemption (Human Rights) [2015] VCAT 230

BAE systems Australia Limited (Anti-Discrimination Exemption) [2012] VCAT 349

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

Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328

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

Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) [2008] QADT 34

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

Linfox Australia Pty Ltd – Exemption (Human Rights) [2015] VCAT 528

Qantas Airways Ltd v Christie (1998) 193 CLR 280

Raytheon Australia Pty Ltd (Human Rights) [2014] VCAT 1370

Re: Ipswich City Council [2020] QIRC 194

Re: Kalwun Development Cooperation Limited [2019] QIRC 141

Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) [2014] VCAT 1441

The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54

Vale v State of Queensland & Ors [2019] QCAT 290

WBM v Chief Commissioner of Police [2010] VSC 219; 27 VR 409

WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR 446

Wotton v State of Queensland (No 5) [2016] FCA 1457	

Reasons for Decision

	Introduction

[1]	The Applicant, Leidos Australia Pty Ltd ("Leidos"), seeks an exemption, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ("AD Act"), from the operation of specified provisions of the AD Act. The provisions of the AD Act that Leidos seeks exemption from are ss 14, 15, 15A, 124 and 127 of the AD Act in so far as those sections relate to the attribute of "race".

Relevant background

[2]	Leidos relies on the evidence of Ms Alison McPheat in support of the application. Ms McPheat's evidence addresses the work performed by Leidos, the international statutory framework that Leidos operates its business in accordance with and the purpose for which the exemption is sought. I have summarised relevant parts of that evidence below. 

[3]	Leidos 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 Leidos requires for performing contracted works for the Commonwealth of Australia, in particular, the Department of Defence (“Defence”). 

[4]	Leidos is a subsidiary of Leidos Inc, a US defence, aviation, information technology and bio medical research company that provides scientific, engineering, system integration and technical services, including exclusively to the US Department of Defence, US Department of Homeland Security and US Intelligence Community. 

[5]	In Australia, Leidos provides large scale systems, integration and information technology services, primarily to the Commonwealth of Australia, including in the areas of defence, intelligence and health. 

[6]	Leidos states that it performs the majority of its work for Defence and that it is the largest commercial provider of services, in terms of contract value, to the Defence's Chief Information Officer Group ("CIOG"). The CIOG leads the design, delivery and operation of Defence’s Single Information Environment ("SIE"), an infrastructure network encompassing defences information, computing and communications infrastructure. 

[7]	The SIE is integral to core defence functions including intelligence, surveillance, recognisance, communications, information welfare, command and management. 

[8]	Leidos further states that the Australian Security and Intelligence Agencies, significantly rely on the information, technology and services provided by Leidos. Leidos states that supporting Defence and its capability building and operations requirements constitute approximately 80% of Leidos' core business in Queensland and across Australia. Leidos contends that such work is fundamental to ensuring Australia's national security interests are met. 

[9]	Leidos identifies that it has a number of major contracts with Defence including:

(a)	the contract for the Centralised Processing program under which Leidos transformed and consolidated 280 Defence data centres in 11 domestic and three international data centres, and continues to provide ongoing services support (including servers, storage, database, mainframe and service management) for both the transformed and residual untransformed environments. The current value of this contract is greater than $800 million. Its term currently ends on 31 December 2022 with options to extend to 2027;

(b)	the Joint Project 2030 Joint Command Support Environment Phase 8 Sustainment contract to support the JCSE "command and control" system used by the Headquarters Joint Operations Command of the Australian Defence Force ("ADF") (i.e. the operational-level headquarters responsible for the command and control of ADF operations globally) to support military planning, operations and campaigns, Joint and Coalition exercises and other ADF activities. The current value of this contract is greater than $50 million. Its term currently ends on 21 February 2022 with options to extend to 2026;

(c)	the SEA 1770 Rapid Environmental Assessment contract to deliver platforms and sensors to enable the Royal Australian Navy to conduct safe operation and movement of ships and to enable landing craft to come ashore, which is critical to ADF operations, especially following disaster events where underwater conditions may have significantly changed. This current value of this contract is greater than $30 million. The acquisition phase of this contact is expected to complete by the end of May 2020. The term of the contract's support phase currently ends in about November 2023 and is renewable for a further 5-year period; and

(d)	the LAND 2110 Phase 1B contract to supply to the ADF and support its chemical, biological, radiological and nuclear defence capabilities. The current value of this contract is greater than $250 million for an initial support phase of 5 years with an option to extend for a further 5 years to 2026. 

[10]	Leidos contends that in order to provide the contracted works required by Defence, it requires access to Controlled Material. The access to Controlled Material is subject to US export control laws including the International Traffic In Arms Regulations (“ITAR”) and the US Export Administration Regulations ("EAR") (collectively referred to as "US export control laws").

[11]	The Controlled Material relevant to Leidos' application is intended to include technology, data and other material that is deemed "controlled" under the US and export control laws and requires US export authorisation in order to lawfully transfer the material. 

[12]	Leidos submits that the 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.

[13]	ITAR and EAR both contain restrictions on the access to and diversion of Controlled Material to specific countries ("Proscribed Countries"), including to individuals who hold, or have held, nationality of Proscribed Countries, even where those individuals are located within Australia. 

[14]	Leidos identifies that the Proscribed Countries under ITAR are set out in section 126.1 of those regulations, as updated from time to time. As at 31 August 2019, the Proscribed Countries under section 126.1 of ITAR were: Afghanistan, Belarus, Burma, Central African Republic, Cote d'lvoire, Cuba, Cyprus, Democratic Republic of Congo, Eritrea, Fiji, Haiti, Iran, Iraq, Kyrgyzstan Lebanon, Libya, North Korea, People's Republic of China, Russia, Somalia, South Sudan, Syria, Venezuela, and Zimbabwe. 

[15]	Under the US export control laws, restrictions are placed on access to Controlled Material by individuals classified as a: 

(a)	a "Dual National", who for Australian purposes is an individual who holds Australian citizenship, in addition to citizenship of one or more other countries (except for the US); or 

(b)	a "Third Country National", who for Australian purposes is an individual who holds nationality of a country or countries other than Australia or the US. 

[16]	Leidos states that where it receives, accesses or manages Controlled Material, it must ensure that it has approval to do so from the US Department of State, by way of a licence or agreement, and must ensure that it complies with all conditions associated with the relevant licence or agreement. Leidos further states that when issuing licences or approving agreements, the US Department of State will generally impose the following conditions on the entity being approved to receive, access or manage Controlled Material:

(a)	a requirement to disclose the nationalities of personnel who will have access to the Controlled Material; and

(b)	a limitation or prohibition on access to the Controlled Material by Individuals who hold, or have held, Dual or Third Country nationality of a Proscribed Country. 

[17]	Where Controlled Material is categorised as "US unclassified" under US Government regulation, Leidos may rely on the exemption under section 126.18 ITAR (126.18 Exemption), which enables personnel who hold an Australian Government-issued Security Clearance, at the "Baseline" level or above, to access that Controlled Material.

[18]	However, the 126.18 Exemption does not apply to Controlled Material that is categorised as "US classified" or above. Leidos submits that this requires it to manage access to ensure personnel do not access the Controlled Material where they hold or have held Dual or Third Country Nationality of a Proscribed Country under section 126.1 of ITAR, or where they have substantive ties to such Proscribed Countries. 

[19]	Leidos submits that it requires access to both US classified and US unclassified Controlled Material in order to perform the work and to fulfil its obligations under its contracts with the Commonwealth. 

[20]	Leidos contends that in order to comply with the US export control laws to access the necessary Controlled Material, Leidos may be required to undertake activities pursuant to those laws, including pursuant to conditions imposed under those laws by the US Secretary of State, when granting or approving licences or agreements for access to Controlled Material.

[21]	Leidos identifies that it seeks the exemption under the AD Act in order to conduct specific activities. It identifies those activities as follows: 

(a)	inform applicants for employment in roles which require access to Controlled Material and are subject to permits, licences, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they are not an Australian citizen or if they hold, or have held, dual nationality and/or citizenship from proscribed countries, or have substantive contacts with proscribed countries;

(b)	request information from prospective personnel who perform work on Leidos' premises or offsite on Defence programs and who are subject to Leidos' control and direction for positions related to projects which use Controlled Material, in relation to their citizenship, previous citizenships, race or nationality, or substantive contacts where such contacts are affiliated with Proscribed Countries, provided the request for information is limited to information for determining whether an application for authorisation would be required to allow the prospective personnel to have access to Controlled Material and whether in Leidos' reasonable judgment that an application would have significant prospects of success; 

(c)	impose a condition on any offer of employment in roles which are likely to require access to Controlled Material that the applicant must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approval obtained from the US Department of State or otherwise;

(d)	take into account the citizenship, previous citizenships, race or nationality, or substantive contacts (where such contacts are affiliated with Proscribed Countries) of current or prospective personnel in determining whether they may be offered a role or allocated work that involves access to Controlled Material;

(e)	maintain records of the nationalities, citizenships and substantive contacts of personnel who have or may have access to Controlled Material;

(f)	require current or prospective personnel involved in projects which access Controlled Material to notify Leidos of any change to their citizenship or substantive contact status;

(g)	restrict access to Controlled Material to particular current or prospective personnel based on their citizenship, previous citizenships, race or nationality, or substantive contacts where such contacts are affiliated with Proscribed Countries; 

(h)	record information relating to security clearances granted to Leidos personnel who are under the control and direction of Leidos in relation to work requiring access to Controlled Material;

(i)	impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material. 

(j)	maintain records of the 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;

(k)	establish security systems and access protocols that will prevent the unauthorised re-export or retransfer of Controlled Material; and

(l)	disclose, if and when required, citizenship, previous citizenships, race or nationality, or substantive contracts where such contracts [sic] are affiliated with countries proscribed by section 126.1 of ITAR, of Leidos' personnel in Queensland to:

(i)	the US Department of State;
(ii)	the US Department of Commerce;
(iii)	Defence; and 
(iv)	any other organisation for which, or on whose behalf, or at whose request Leidos undertakes work in respect of which Leidos has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities. 

[22]	Clearly, engaging in such activities is 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 and also ss 124 and 127 of the AD Act.

[23]	Leidos contends that a failure to comply with US export control laws could result in significant financial and criminal penalties and to “statutory debarment” of Leidos by the US Department of State, which would prevent Leidos accessing the Controlled Material for a specified period. Leidos argues that the proposed exemption is necessary to enable it to lawfully access Controlled Material required for its contracted works in support of Defence and its capability building and operational requirements, which in turn are fundamental to Australia’s security interests.

[24]	The question for my determination is whether, pursuant to s 113(1) of the AD Act, I should grant the exemption sought. 

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

[25]	Pursuant to s 113(2) of the AD Act, before deciding an application, the Tribunal must provide a copy of the application and material filed in support of the application to the Queensland Human Rights Commission (QHRC) and have regard to any submission made by the QHRC on the application, including any submission on the process for considering the application. 

[26]	The QHRC was notified and provided a copy of the application and supporting information and on 17 August 2020, QHRC provided written submissions. 

[27]	I issued a Directions Order requiring Leidos to engage in a notification process by providing a copy of the application and supporting information to the Queensland employees, contractors and other workers of Leidos, the Queensland Council of Unions and the Ethnic Communities Council of Queensland.

[28]	Additional directions were issued that the QHRC to provide notice of the application made by Leidos and the supporting information by publishing copies of same in its newsletter and on social media. 

[29]	A further direction was issued that the Industrial Registrar of the Queensland Industrial Relations Commission place a notice of the application by including a hyper-link copy of the application and supporting information on the Queensland Industrial Relations Commissions' website and advising that if any interested party wished to make a submission and/or appear at the hearing of the application, that they were to notify the Queensland Industrial Relations Commission of such an intention by advising the Industrial Registrar in writing or by email. 

[30]	I am satisfied that Leidos complied with directions in so far as it advised the Queensland Council of Unions and the Ethnic Communities Council of Queensland, and, further, that there were no relevant Queensland employees, contractors or other workers who needed to be advised of the application.

[31]	No notice of intention seeking to be heard and/or appear at the hearing of the application was received by any interested party. 

Leidos' application for exemption

[32]	Leidos' application seeks an exemption in the following terms: 

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 [INSERT 5-YEAR PERIOD].

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:

Applicants for employment

(a)	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:
(i)	are not an Australian citizen; or
(ii)	hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or 
(iii)	hold permanent residency in a country or countries other than the US or Australia;
(iv)	have substantive contacts with countries proscribed by section 126.1 or ITAR;

Request for information about nationality 

(b)	Request and maintain records of information from Personnel who perform or may perform work on the Applicant's premises or offsite and who are subject to the Applicant'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:

	Use of nationality information

(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 ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise; 

(d)	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;

(e)	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; 

(f)	Require personnel involved in projects which access Controlled Material to notify the Applicant of any change to their citizenship or permanent residency status, nationalities or substantive contacts;

(g)	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;

(h)	Record information relating to security clearances granted to personnel who are under the control and the direction of the Applicant in relation to work requiring access to Controlled Material;

(i)	Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
 
(j)	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. 

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

(l)	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 Applicant's personnel in Queensland to:
(i)	the US Department of State;
(ii)	the US Department of Commerce;
(iii)	the Australian Department of Defence; and
(iv)	any other person or organisation for which, or on whose behalf, or at whose request the Applicant undertakes work in respect of which the Applicant has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.

4.	In this exemption:
(a)	"Act" means the Anti-Discrimination Act 1991;
(b)	"Applicant" means Leidos Australia Pty Ltd (ACN 612 590 155)
(c)	"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;
(d)	"EAR" means the Export Administration Regulations of the US;
(e)	"ITAR" means the International Trafficking in Arms Regulations of the US;
(f)	"Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
(g)	"Security requirements" means any of the following:
(i)	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;
(ii)	contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above. 
(h)	"US" means United States of America. 

Schedule: Conditions

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

(a)	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;

(b)	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:
(i)	reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
(ii)	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:
(A)	the personnel are not the best candidate for the relevant position; or
(B)	such an application does not have significant prospects of success, 
(iii)	 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. 

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 must include the information that:

(a)	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

(b)	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. 

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. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:

(a)	the steps it has taken to comply with the terms of the exemption;

(b)	the number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and

(c)	the implementation of and compliance generally with the terms of the exemption.

[33]	Leidos submits that the reason it seeks the exemption is to ensure it does not breach the AD Act when it engages in the activities listed above in order to comply with the US export control laws. 

The relevant legislative provisions
	
	The AD Act

[34]	Section 174B(b) of the AD Act provides the Tribunal with power to grant exemptions in relation to work related matters.

[35]	Section 113(1) of the AD Act relevantly provides that, on application by a person, the Commission 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—

(a)	a person, on the person’s own behalf, or on behalf of the person and another person or other people; or

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

(c)	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—

(a)	may be granted subject to such terms as the tribunal provides; and

(b)	may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and

(c)	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.

…

[36]	The application sought by Leidos seeks to exempt it from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act for a period of five years.

[37]	Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of "race".

[38]	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. 

[39]	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. 

[40]	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. 

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

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

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

(a)	whether the exemption is necessary;

(b)	whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;

(c)	whether the exemption is in the community interest;

(d)	whether any other person or body, other than the applicant, support the application;

(e)	whether it is reasonable and appropriate to grant the exemption; and 

(f)	the effect of not granting the exemption. 

[44]	I will address these considerations further below following my consideration of the Human Rights Act 2019 (Qld) ("HR Act").

The HR Act

[45]	In addition to the matters referred to above, the Tribunal must also consider any relevant matters arising in accordance with the HR Act. 

[46]	The main objects 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. 

[47]	The way in which the HR Act provides that the main objects are to be achieved include, inter alia, by:

(a)	requiring public entities to act and make decisions in a way compatible with human rights; and

(b)	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.

[48]	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."

[49]	Accordingly, a determination must be made as to whether the Tribunal is acting in a judicial or administrative capacity when deciding as to whether it will grant an exemption pursuant to s 113 of the AD Act. 

[50]	The QHRC submits that if the Tribunal is acting in an administrative capacity then it is obliged, pursuant to s 58 of the HR Act, to give proper consideration to human rights when making decisions and to act and make decisions in a way that is compatible with human rights. 

[51]	Alternatively, the QHRC submits that if the Tribunal determines that it is acting in a judicial capacity, it needs to consider the human rights that apply to the function of granting an exemption and that Leidos' application engages the rights set out in s 15 of the HR Act, in particular, "… the right to equality and to equal protection of the law without and against discrimination".

[52]	The issue as to whether the Tribunal is acting in either a judicial or administrative capacity when considering to grant an exemption under s 113 of the AD Act was considered by Deputy President Merrell in Re: Ipswich City Council ("Ipswich City Council"). 

[53]	As noted in Ipswich City Council, the QIRC is established as a court of record in Queensland. The Constitution of Queensland Act 2001 does not contain any constitutional principle of separation of powers. Thus, the QIRC can, for example, exercise its judicial power when, under s 544(1)(b) of the Industrial Relations Act 2016 (Qld) ("IR Act") it enforces its own decisions. It can also exercise power that is administrative in nature, for instance when it certifies agreements under Ch. 4 of the IR Act. 

[54]	Deputy President Merrell, when considering whether the decision granting an exemption could be characterised as either judicial or administrative, relevantly noted:

The determination of existing rights and liabilities has been accepted as the defining characteristic of the judicial function. Put another way, the exercise of judicial power is giving a binding and authoritative determination between different parties as to their legal rights and duties according to existing legal principles. On the other hand, the general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. The exercise of statutory power, neither legislative nor judicial in character, is most likely administrative in character, it being a category of power applicable to executive or governmental decision-making generally. 

Section 447(1)(p) of the Industrial Relations Act 2016 provides that the Commission's functions include any other function conferred on the Commission under that Act or any other Act.  Section 174B of the Act provides:

174B 	Functions of industrial relations commission

The industrial relations commission has the following functions—
(a)	in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act—
(i)	to make orders under section 144 before the complaints are referred to the tribunal; and
(ii)	to review decisions of the commissioner under section 169 about lapsing of the complaints; and
(iii)	to enforce agreements for resolution of the complaints by conciliation; and
(iv)	to hear and decide the complaints;
(b)	to grant exemptions from this Act in relation to work-related matters; 
(c)	to provide opinions about the application of this Act in relation to work-related matters;
(d)	any other function conferred on the commission by this Act;
(e)	to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).

Some the functions conferred on the Commission by s 174B clearly involve the exercise of judicial power.  For example, the power to hear and decide complaints of unlawful discrimination made under the Act involves the making of a binding and authoritative determination between different parties as to their legal rights and duties according to existing legal principles.

By contrast, the function of granting an exemption from the Act in relation to work related matters does not involve the exercise of judicial power because it does not involve making a binding and authoritative determination between different parties as to their existing legal rights and liabilities.  Furthermore, the granting of an exemption in relation to work-related matters does not involve the exercise of legislative power because it does not involve a determination of the content of a law as a rule of conduct and does not involve making a declaration as to power, right or duty.

(Citations Omitted) 

[55]	Accordingly, the decision as to whether or not to grant an exemption under s 113(1) of the AD Act does not involve the enforcement of existing legal rights, nor does it involve making a binding and authoritative determination between legal parties of their legal rights and duties according to existing legal principles. As such, a decision made pursuant to s 113 of the AD Act involves the Tribunal acting in an administration 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

[56]	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—

(a)	to act or make a decision in a way that is not compatible with human rights; or

(b)	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—

(c)	identifying the human rights that may be affected by the decision; and

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

(6)	  To remove any doubt, it is declared that—

(a)	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

(b)	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).

[57]	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 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 persons disadvantaged because of discrimination do not constitute discrimination.

[58]	Section 25 of the HR Act provides for the right to privacy as follows:

25  Privacy and reputation

A person has the right – 

(a)	  not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)	not to have the person’s reputation unlawfully attacked.

[59]	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—

(a)	 does not limit a human right; or

(b)	 limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.

[60]	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—

(a)	the nature of the human right;

(b)	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;

(c)	the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d)	whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e)	the importance of the purpose of the limitation;

(f)	the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g)	the balance between the matters mentioned in paragraphs (e) and (f).

Section 48 of the HR Act applies

[61]	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—

(a)	a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and

(b)	the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and

(c)	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—

(a)	another function conferred by this Act on an entity mentioned in the subsection; or

(b)	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.

[62]	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. 

[63]	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 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.

(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—

(a)	an Act or provision of an Act that is not compatible with human rights; or

(b)	 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.

[64]	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 QHRC

[65]	The QHRC appeared at the hearing and indicated its position was not to oppose the application but rather to assist the Tribunal.

[66]	The QHRC's written submissions may be summarised as follows:

(a)	the onus rests with Leidos to establish that the exemption is necessary and that the genuine occupational exception in s 25 of the AD Act does not apply;

(b)	the requirement to make a decision and to interpret statutory provisions in a way that is compatible to human rights, necessitates the application of the test in s 13 of the HR Act in determining any limitation on human is reasonable and demonstrably justified; 

(c)	the human rights relevant to the application are:

i.	the right to privacy; and

ii.	the right to equality and to equal protection before the law.

(d)	some factors relevant to findings in Victorian decisions that the limitation of rights and granting of an exemption was justified are not present in this application including namely:

i.	 the extent to which work in Queensland is relevant to Leidos' contract; and

ii.	 the extent of employment opportunities for Queenslanders. 

[67]	The QHRC submits that if the genuine occupational requirement exception in s 25 of the AD Act applies, then it is not necessary to grant the s 113 exemption sought by Leidos. Accordingly, it is necessary for me to consider this issue at the outset.

Genuine occupational requirement exemption – s 25 of the AD Act

[68]	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.

[69]	Leidos submits that the requirement that a person not be of a particular nationality is not an essential element of a position.  

[70]	The QHRC contends that Leidos' submissions conflicts with the jurisprudence of the former Queensland Tribunal in Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) ("the 2008 Boeing decision"). The QHRC submits that while the Tribunal is not bound by the decision, it is persuasive and the onus rests with Leidos to satisfy the Tribunal that the 2008 Boeing decision should not be followed. 

[71]	Before I consider the 2008 Boeing decision in the context of this matter, I will consider the nature of the 'requirement' and whether it forms a requirement of a particular position. 

[72]	The meaning of "inherent requirement" was considered in Qantas Airways Ltd v Christie ("Christie") and has subsequently been considered and applied in the context of the consideration of s 25 of the AD Act and the meaning of "genuine occupational requirement".

[73]	In Christie it was held:

... an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.

[74]	In Christie, McHugh J considered the difference between the requirements for the position as opposed to the requirements of a job and held:

In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the “job” of President if that term refers to the work done by the President.

[75]	In Christie, Gaudron J held:

… an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.

[76]	In Vale v State of Queensland & Ors it was held that:

‘Inherent’ has been interpreted to mean ‘existing in something as a permanent attribute or quality; forming an element, especially an essential element of something; intrinsic, essential’. In this context, that which is essential to the performance of a particular position must be regarded as an inherent requirement of that position.

[77]	Prior to the 2008 Boeing decision, the then Tribunal considered an earlier application for exemption made by Boeing in Exemption application re: Boeing Australia Holdings Pty Ltd & related entities ("the 2003 Boeing Decision"). In the 2003 Boeing Decision, Sofronoff P (as the then President of the former Tribunal) considered whether s 25 of the AD Act applied in the circumstances of that matter. Relevantly, the exemption was sought by Boeing in that matter to allow it to lawfully meet the requirements of the ITAR and EAR. In the course of his reasons granting the exemption, Sofronoff P determined that s 25 of the AD Act did not apply and relevantly held:

There are no general or specific exemptions that apply. It might conceivably be argued that the exemption in section 25 of the Act applies, namely that it is a 'genuine occupational requirement' that employees be of the appropriate nationality. However that would be an argument with significant difficulty. Firstly, 'genuine occupational requirement' has been interpreted narrowly. In this case, the problem arises because of the application of foreign law to the work. There is no issue concerning the employees' ability to carry out the inherent requirements of the roles. These requirements are not 'occupational' - rather they are legislative.

Secondly, the operation of the 'genuine occupational requirements' exemption becomes even more difficult in relation to the exclusion of employees from jobs where they might not be directly required to come into contact with controlled information but, because of where they are required to work, there is an unacceptable risk of accident or involuntary 'transfer'.

There is certainly an arguable case that if the applicants take the steps outlined to meet the ITAR and EAR, there will be a breach of the Act.

[78]	In the 2008 Boeing decision, President Savage (as the then President of the former Tribunal) referred to the 2003 Boeing Decision and noted that it has been heard ex parte and that he had before him extensive argument on the point. Savage P determined that it was an inherent requirement of the position that a person who is employed by Boeing, not be a particular nationality and not be born in a particular country. It was found that it was necessary to know these matters before entering into any employment contract. 

[79]	Following the 2008 Boeing decision, there have been no applications of this type made in Queensland. However, other jurisdictions within Australia have continued to grant exemptions of a similar nature. Relevantly, Leidos has been granted exemptions in similar terms as it seeks in this application in the Australian Capital Territory, New South Wales and Victoria.

[80]	The QHRC submits that one of the reasons for this may be because that the exemption for genuine occupational requirements in the Equal Opportunity Act 2010 (Vic) differs in that it is more limited to the exemption for genuine occupational requirements in s 25 of the AD Act. The QHRC submits that the Victorian exemption only allows a person to limit the offering of employment on the basis of race where it is necessary to do so for reasons of authenticity or credibility, whereas the terms of the Queensland exemption are broader and allow a person to impose genuine occupational requirements for a position. 

[81]	Accordingly, whilst Leidos has been granted exemptions in similar terms in other jurisdictions, those decisions have not dealt with whether an exemption in the terms of s 25 of the AD Act applies. 

[82]	Leidos submits that the apparent purpose of the conduct which was sought to be covered by the proposed exemption in the 2008 Boeing decision was "to identify people born in particular countries – and then not to employ those people in restricted areas within the applicant's business". Leidos submits that the 2008 Boeing decision can be distinguished on several basis including that the nature of Boeing's business makes it more able to anticipate from project to project what material an employee will require access to. 

[83]	Leidos contrasts that purpose for the purpose in which it seeks the proposed exemption as being one which may allow particular personnel to access "Controlled Material" that is "US classified". It submits that it does not need to take these steps in relation to permitting personnel access to "US unclassified" Controlled Material, nor to other material. 

[84]	Leidos submits that it is difficult for it to anticipate if a worker will require access to Controlled Material during the life of particular projects as such projects may evolve during the life of the project. Further, Ms McPheat's evidence was that workers engaged in the Brisbane office, at least initially, will not be required to access Controlled Material when working in Brisbane but may be required to access such material if they are required to perform work in the ACT and Victoria. 

[85]	In this regard, Leidos submits that the ITAR requirements are an administrative requirement designed by the US government to ensure the secure access to certain defence related technology and data (the Controlled Material). The positions of Leidos' personnel, including the terms of their employment contract and functions required to be performed, remain essentially the same regardless of the ITAR requirements. 

[86]	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. 

[87]	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.  
 
[88]	On the information before me, I am unable to conclude that s 25 of the AD Act applies. 

[89]	Further, the QHRC's submissions note that the ITAR was amended in 2011. The QHRC helpfully refers to several decisions considering the effect of those amendments.

[90]	In BAE systems Australia Limited (Anti-Discrimination Exemption), Member Dea noted as follows:

The effect of the ITAR amendments is that a company such as the applicant may request that its workforce obtain a Personnel Security Clearance or it can undertake an internal screening process in relation to a person without such a Clearance. The screening process is used to determine the person’s substantive contacts with proscribed countries or persons referred to in the amendment. Where the person has a Personnel Security Clearance or passes the screening process, he or she may have access to Controlled Material.

[91]	In BAE systems Australia Defence Pty Ltd – Exemption (Human Rights), Member Dea relevantly noted as follows:

… I concluded that the 2011 amendments were not sufficient to conclude that an exemption was no longer necessary under section 90 of the EO Act. That was because, the 2011 amendments still required the relevant company to seek nationality or national origin information. While the 2011 amendments might well mean that potential workforce members may more readily be employed in roles which require access to controlled materials by undertaking the screening process, that screening process of itself may be regarded as more intrusive than seeking only nationality and national origin information.

As discussed in Thales, it is apparent that, although there have been changes to the US export laws and efforts are being made to ameliorate their effects on employment practices in Australia (and so in Victoria), they are yet to obviate the need for an exemption. That is because, in respect of some workforce members and some controlled materials, there will continue to be a need to make decisions partly or entirely based on workforce members’ nationality or national origin. Neither the 2011 amendment nor the other measures discussed above cover the field.

[92]	The QHRC submits that notwithstanding the view expressed in the 2012 BAE systems decision and the 2015 Defence decision, that the 2011 ITAR amendments do not distinguish the findings in the 2008 Boeing decision in relation to the application of the exemption that allows the imposition of genuine occupational requirements. 

[93]	Leidos responds to the submissions by identifying that, in its view, the effect of the 2011 ITAR amendments did not amend the requirement for the exemption. Relevantly, it noted that in the 2012 BAE systems decision, it was concluded that the 2011 amendments did not present a reasonably available alternative to the exemption and exemption was still necessary for the applicant to lawfully engage in the conduct. 

[94]	Leidos refers to the 2015 BAE systems decision where it was noted that the 2011 amendments did not overcome the need for the companies to make inquiries about nationality and place of birth to make decisions partly or entirely based on workforce members nationality or national origin. 

[95]	As noted in the Thales Australia Limited and ADI Munitions Pty Ltd Exemption (Human Rights) ("Thales”), although the 2011 amendments have sought to ameliorate their effects on employment practices, they do not remove the need for an exemption. There is still a requirement, that in respect of some of the workforce and some Controlled Material, that decisions will continue to be made based partly or entirely on the workforce members nationality or national origin. I respectfully adopt the reasoning in Thales. 

Application of the HR Act to this matter

What human rights may be affected by the granting of the exemption? – s13(2)

[96]	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. 

[97]	In the present case, the effect of the exemption would be to allow Leidos 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 Leidos 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.

[98]	As referred to above, the QHRC submits that the application made by Leidos "engages" the rights to privacy and the right to equality and to the equal protection of law without and against discrimination. 

[99]	The right to privacy, in the HR Act, mirrors the right to privacy in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Victorian Charter"). The right to recognition equality before the law is also expressed in similar terms to the right in the Victorian Charter. 

[100]	Section 25(a) of the HR Act provides that a person has the right not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with. I accept that the right to privacy might arise because Leidos seeks to use personal information including place of birth, nationality and citizenship details which may intrude on a person's privacy. However, consideration must be given as to whether such interference is arbitrary. 

[101]	There has been a range of opinions expressed in the Victorian jurisdiction regarding the concept of arbitrariness as it appears in s 43 of the Victorian Charter. 

[102]	In Director of Housing v Sudi (Residential Tenancies), Bell J adopted an approach whereby the meaning was informed by international and comparative human rights cases. Bell J concluded that the meaning encompassed a lack of proportionality or justification and objective unreasonableness. 

[103]	In WBM v Chief Commissioner of Police, a narrow approach was taken by the court and the term "arbitrary" was determined to mean conduct not based on any identifiable criteria, but which stems from an act of caprice or whim. 

[104]	In obiter statements in the appeal from the decision, Warren CJ indicated a preference for the approach taken by the UK courts as guidance on how to determine "what amounts to 'arbitrary interference' with privacy where arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of it not being proportionate to the legitimate aim sought".

[105]	In the federal jurisdiction, in Wotton v State of Queensland (No 5), Mortimer J, after considering, inter alia, the above authorities, indicated a preference for a construction of arbitrariness to include, at least, a “… lack of proportionality to the ends sought, and lack of justification.” She continued by stating that “[s]uch a construction gives independent operation to arbitrariness in contrast to unlawfulness.”

[106]	Having regard to these matters, I do not consider that the possible interference with privacy raised by the exemption application could be regarded as arbitrary. It could not be said that by seeking the information in accordance with its obligations to act in compliance with the US export control laws, that Leidos is acting in a capricious or unpredictable way. Further, given the interference is directly aligned with Leidos’ attempts to comply with the US export control laws and its contractual obligations, I do not consider that such conduct lacks proportionality to the end sought or was without justification. 

[107]	For these reasons, I consider the right to privacy is not engaged in the circumstances of this matter. 

[108]	I have referred to s 15 of the HR Act in full above. I consider that the right to recognition and equality before the law is engaged in this matter. 

[109]	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 effected by the granting of the exemption sought by Leidos in that it would allow discriminatory activity to take place which would effect a person's right to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination. 

[110]	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 Leidos fall into the categories of measures described under s 15(5) of the HR Act. 

[111]	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 Leidos may be reasonable and justifiable.  

[112]	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

[113]	As noted above, 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. 
 
[114]	The equivalent right in the Victorian Charter was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) (“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. 

[115]	In Lifestyle Communities, 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. 

[116]	Yet, 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. 

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

[117]	Section 13(2)(b) of the HR 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 when determining whether the limitation on a human right is reasonable and justifiable.

[118]	The means by which the purpose is to be achieved includes utilising  nationality and national origin information to make determinations about the engagement of Leidos' workforce. There is no doubt that such a limitation is undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom. 

[119]	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 Leidos to comply with US export control laws which will permit it to access to Controlled Materials in the operation of its business. Leidos submits that the exemption is essential to achieving the purpose. It is further noted that the purpose is of importance as it will enable Leidos to provide infrastructure to Defence, which Leidos submits is critical in ensuring Australia's defence and national security interests are met.

[120]	I recognise that Leidos must comply with the US export control laws in order to perform some of its contracted work with Defence and other Commonwealth agencies. I further accept Leidos' submissions with respect to the importance of the purpose of the limitation. If the exemption was not granted to Leidos, then it would not be able to perform work, some of which relates to national security, required under its contracts (and future contracts) with Defence and other Commonwealth agencies. 

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

[121]	There is a clear relationship between the terms of the limitation and its purpose. On the material before me, I am satisfied that the limitation helps to achieve the purpose for which it is sought. 

[122]	Having regard to the purpose of the limitation as outlined above, in order that Leidos 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.

[123]	I do not consider that the terms of the exemption go beyond the purpose of the exemption. 

[124]	In this regard, I note that in Leidos' submissions that the exemption is only sought to the extent needed to meet its compliance with the US export control laws. This submission is reflected in the conditions attached to the terms of the draft exemption which include a condition that the exemption applies only to Leidos' conduct where it is necessary to enable Leidos to obtain and maintain US export licenses and approvals or to perform contractual obligations, which involve access to Controlled Material. The conditions also provide that Leidos 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

[125]	Limitations will not be reasonable or justifiable if they go further than is necessary or if there are less restrictive alternatives available.

[126]	Leidos contends that there are no alternative or less restrictive means to achieve compliance with the US export control laws and to provide the contracted services to Defence. 

[127]	The 2011 amendments to the ITAR, whilst broadening the pool of potential workers Leidos may engage, does not eliminate the need for Leidos to require nationality, citizenship and national origin information and potentially use that information. 

[128]	In Thales, when considering the effects of the 2011 amendments to the ITAR in an exemption application, it was concluded that there was an absence of less restrictive means to achieve the purpose, as the amendments to the US export control laws and other developments had not eliminated the need for the applicant to seek nationality origin information from its workforce from time to time.

[129]	I note that the scope of the exemption is such that it is only applied in circumstances where Leidos must comply with the US export control laws and in order for it to meet its' contractual obligations. 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 right and finding a balance between the two – s 13(2)(e)-(g) of the HR Act

[130]	It has been 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. 

[131]	Further, it has been held 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. 

[132]	The evidence adduced by Leidos supports its submission that it provides fundamental services and support to Australia's defence and national security interests through its contracted work with the Commonwealth of Australia, in particular, Defence. 

[133]	I have had regard to the fact that Leidos 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 Defence. When considering a similar application for exemption in Victoria, it was held that the concerns of the Australian and US governments about who ought and ought not have access to Controlled Material is clear and they are not matters that should be disregarded. 

[134]	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.

[135]	For these reasons, I am satisfied that the limitation on human rights is reasonable and justifiable. 

The exemption power

[136]	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 is 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. 

[137]	Section 48 of the HR Act must be considered when considering the application of s 113 of the AD Act. 

[138]	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".

[139]	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?

[140]	The proposed exemption is necessary to permit Leidos 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 Materials. 

[141]	As noted above, no other exemptions, including the exemption contained in s 25 of the AD Act apply.

[142]	I consider the exemption is necessary to permit Leidos to lawfully perform its activities in Queensland.

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

[143]	Leidos submits that seeking the exemption is the only means by which it may simultaneously undertake its business in Queensland, provide critical services concerning the security of Australia and avoid engaging in prohibited discrimination. 

[144]	It submits that where possible, it intends to utilise the exemptions available under ITAR, so that the activities are only performed where absolutely necessary. It submits however that those such exemptions may not be available in all cases. 

[145]	If the exemption is granted, it will be on the condition that Leidos 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

[146]	Leidos submits that the purpose of the exemption will be to allow it to comply with US export control laws which neither it, nor the Australian Government, have the power to amend, enabling Leidos to perform contracted works for Defence. Such work is critical to the capabilities of Defence and the Australian Defence Force in meeting Australian security interests. 

[147]	I consider that granting the exemption will permit Leidos to lawfully conduct its activities which concern matters of national security. It is in the community's interest that such activities be performed. 

[148]	The QHRC submitted that Leidos' application did not show the extent to which work in Queensland is relevant to Leidos' contracts or the extent to which it provides employment opportunities in Queensland. 

[149]	In response, Leidos adduced further evidence which indicated that Leidos intends to open an office in Queensland and that it was operating on the basis that Leidos would employ approximately 30 employees in Queensland within 2 years of operations commencing. Ms McPheat's evidence was that while the workers in Queensland may not be required to access Controlled Material in the Brisbane office (at least, in the short term) those workers may be required to access it when they are working in the ACT or Victorian offices. 

[150]	Ms McPheat gave evidence to the effect that Leidos would be securing premises in Queensland imminently. 

[151]	I consider it is in the local community interest for businesses to commence operating in Queensland with the intent of creating new and specialised employment opportunities for Queenslanders. 

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

[152]	There is no evidence before me that any other person or body, other than the Applicant, support the application. 

[153]	I have however, had regard to the fact that, as noted above, Leidos has been granted similar exemptions in the Australian Capital Territory, New South Wales and Victoria. 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. 

The effect of not granting the exemption

[154]	To access the Controlled Material, Leidos must comply with US export control laws, which entails performing the proposed exempt activities. Non-compliance with such laws can have a number of significant consequences including the following:

(a)	significant financial and other penalties, including imprisonment, may be imposed on Leidos and on the US exporter of Controlled Materials to Leidos;

(b)	in addition to imposing financial penalties, the US Department of State also has the power of "statutory debarment" under the US Arms Export Control Act for non-compliance with ITAR. Statutory debarment would prohibit Leidos from accessing Controlled Material for a specified period should it be found to be in breach of ITAR, which in turn, would prevent Leidos from performing the contracted works for defence. 

[155]	I accept that if the exemption is not granted, Leidos 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, Leidos will be unable to discharge its contractual obligations with Defence, and, will therefore not be able to provide critical services and support which form part of Australia's Defence and national security interests.

[156]	For these reasons, I am of the opinion that it would be appropriate and reasonable to grant the exemption sought by Leidos in the terms as set out in [32] herein.

Term of the exemption sought

[157]	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. I will grant the exemption for a period of 5 years from the date of the order. 

Conclusion

[158]	For the forgoing reasons, I grant the exemption sought by Leidos.  

Order

[159]	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 28 June 2021 to 27 June 2026.

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:

	Applicants for employment

(a)	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:
(i)	are not an Australian citizen; or
(ii)	hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or 
(iii)	hold permanent residency in a country or countries other than the US or Australia;
(iv)	have substantive contacts with countries proscribed by section 126.1 or ITAR;

	Request for information about nationality 

(b)	Request and maintain records of information from Personnel who perform or may perform work on the Applicant's premises or offsite and who are subject to the Applicant'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:

	Use of nationality information

(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 ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise; 

(d)	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;

(e)	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; 

(f)	Require personnel involved in projects which access Controlled Material to notify the Applicant of any change to their citizenship or permanent residency status, nationalities or substantive contacts;

(g)	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;

(h)	Record information relating to security clearances granted to personnel who are under the control and the direction of the Applicant in relation to work requiring access to Controlled Material;

(i)	Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;

(j)	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. 

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

(l)	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 Applicant's personnel in Queensland to:
(i)	the US Department of State;
(ii)	the US Department of Commerce;
(iii)	the Australian Department of Defence; and
(iv)	any other person or organisation for which, or on whose behalf, or at whose request the Applicant undertakes work in respect of which the Applicant has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.

4.	In this exemption:
(a)	"Act" means the Anti-Discrimination Act 1991;
(b)	"Applicant" means Leidos Australia Pty Ltd (ACN 612 590 155)
(c)	"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;
(d)	"EAR" means the Export Administration Regulations of the US;
(e)	"ITAR" means the International Trafficking in Arms Regulations of the US;
(f)	"Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
(g)	"Security requirements" means any of the following:
(i)	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;
(ii)	contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above. 
(h)	"US" means United States of America. 

Schedule: Conditions

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

(a)	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;

(b)	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:
(i)	reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
(ii)	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:
(A)	the personnel are not the best candidate for the relevant position; or
(B)	such an application does not have significant prospects of success, 
(iii)	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. 

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 must include the information that:

(a)	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

(b)	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. 

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. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:

(a)	the steps it has taken to comply with the terms of the exemption;

(b)	the number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and

(c)	the implementation of and compliance generally with the terms of the exemption.