BAE Systems Australia Limited (Anti-Discrimination Exemption)  VCAT 349 (28 March 2012) Summary
In a recent application for an exemption under the Equal Opportunity Act 2010 (Vic) (EO Act), Member Dea of the Victorian Civil and Administrative Tribunal has considered the interaction between the right to equality under the EO Act and the Victorian Charter of Human Rights and Responsibilities.
The applicant, BAE Systems Australia Limited (BAE), applied for and was granted an exemption that permits it to discriminate against employees and prospective employees on the grounds of nationality.
In practice, the exemption enables BAE to restrict access to sensitive, defence-related data on the basis of a person’s nationality or place of birth. BAE submitted that such discrimination is necessary to comply with Australian and US national security laws. BAE said if VCAT did not grant the exemption it would be left with only two options: either breach those security laws, or be forced to move its Victorian operations to another state (where exemptions are already in force).
VCAT granted the exemption subject to a raft of conditions that require BAE, among other things, to take “all steps reasonably available” to avoid discriminating and to report to VCAT on a six-monthly basis about its compliance with the exemption and the extent of the discriminatory conduct.
Principles of interpretation
The Tribunal reiterated that, in light of Momcilovic, section 32(1) of the Charter requires the decision maker to “seek to ensure that Charter rights are kept in mind when a statute is constructed but does not require the language of a section to be strained to effect consistency with the Charter”.
In that context, the Tribunal noted that it has a broad discretion to grant, renew or revoke exemptions from the EO Act, which must be exercised by taking relevant human rights into account. The Tribunal also acknowledged its own obligation as a “public authority” to give proper consideration to relevant human rights under the Charter.
While equality is certainly a relevant human right, applications for exemptions may also engage other Charter rights depending on the circumstances.
A reasonable limitation on the right to equality?
Echoing Justice Bell’s discussion in Lifestyle Communities Ltd (No 3), the Tribunal re-stated that the right to equality is an important and fundamental human right.
Pursuant to section 90 of the EO Act, the Tribunal then considered whether the exemption would constitute a “reasonable limitation” on the right. It did so by importing the test in section 7(2) of the Charter, which states that a human right “may be subject under law only to such reasonable limits as can be justified in a free and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors” including, for example, “the importance and purpose of the limitation” (s 7(2)(b)).
A key question for the Tribunal was: what weight should be given to BAE’s own economic interests and the broader community’s interests of providing employment for Victorians, where those interests conflict with human rights? The Victorian Equal Opportunity and Human Rights Commission made submissions on this important point in its capacity as intervener.
The Commission submitted that the prioritising of private economic interests over human rights was inconsistent with the “value system” of the Charter. Hence, profitability alone does not constitute a legitimate reason for limiting human rights. Referring to the decision in Raytheon Australia Pty Ltd v ACT Human Rights Commission, the Commission also said the community’s broader interests in providing employment opportunities may not be sufficient to overcome the need to protect human rights. Therefore, the loss of employment opportunities and commercial interests “may be the cost of ensuring that important human rights are protected”. The Commission noted, however, that issue of public or national security would provide a stronger basis for limiting human rights.
The Tribunal accepted that commercial interests alone cannot justify limiting human rights. However, in weighing up the proposed limitation, the Tribunal took into account the public interest in providing employment opportunities, as well as issues of national security and the fact that the exemption was designed to have the “smallest possible degree” of interference with human rights. The Tribunal also took into account the fact that the same exemption had been in force for a number of years and had not been the subject of any complaints since 2008. It also found that there were no other reasonably available alternatives to the exemption.
For those reasons, the Tribunal concluded that the exemption constituted a reasonable limitation on the right to equality.
Other human rights engaged
The Tribunal also considered the right to privacy. The right to privacy arose because BAE proposed to collect and use information relating to employee’s race, including place of birth and citizenship details, which might intrude on a person's privacy protected by the Charter.
The decision contains some discussion about what the right to privacy means and, in particular, what is an “arbitrary” interference with privacy. The Tribunal noted that there is currently some tension between different interpretations of the term “arbitrary” in decisions before VCAT.
Nonetheless, it found that BAE’s proposed conduct could not be considered an arbitrary interference with the right to privacy because, in the context, it was not “capricious” or “unpredictable”, nor was it unjust, disproportionate or unreasonable in the circumstances.
This decision is significant because it illustrates the interactions between Victorian legislation, in this case the EO Act and the Charter. In particular, the Tribunal’s adoption of the test in section 7 (2) of the Charter in order to determine whether the exemption was reasonable within the meaning of the EO Act is useful.
The decision also contains some valuable discussions around the meaning of the rights to equality and privacy and the hierarchy of reasons for which those rights may be limited.
The decision is available online at: http://www.austlii.edu.au/au/cases/vic/VCAT/2012/349.html
Emma Purdue is a lawyer at Lander & Rogers.