Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination)  VCAT 729 (29 April 2011) Summary
In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The Tribunal held that although granting an exemption may limit the rights to equality and privacy under ss 8 and 13 of the Charter, it was justified under s 7(2).
The companies had been granted exemptions in 2004 and 2007. This was the first application by the companies since the Charter came into force.
The companies’ projects included designing, manufacturing and servicing military vehicles and guns and exporting them to the United States. The companies also supplied munitions to the Australian Defence Force.
United States law required the companies to provide the US State Department with the nationalities of all persons who had access to ‘controlled material’, and to undertake not to allow access to controlled material to persons of certain nationalities.
The companies sought an exemption to enable them to collect and share information regarding the nationalities of employees and prospective employees, and to refuse to hire prospective employees on the basis of their nationality. Without the exemption the companies would be in breach of the EO Act’s prohibitions on race discrimination in the area of employment.
The Tribunal followed the approach of Senior Member McKenzie in Raytheon Australia Pty Ltd  VCAT 796. It first determined that s 83 of the EO Act, which provides the Tribunal with its exemption power, could be interpreted consistently with human rights, pursuant to s 32 of the Charter. This was because the provision gave the Tribunal an unfettered discretion, which could be exercised human-rights consistently. Indeed pursuant to s 38 of the Charter, the Tribunal was obliged to exercise its discretion in a human-rights compliant manner.
In fulfilling its obligation under s 38 of the Charter, the Tribunal proceeded on the basis that granting an exemption might limit the rights against discrimination and arbitrary interference with privacy in ss 8 and 13 of the Charter. However it found that any such limit would be justified under s 7(2).
The Tribunal found that the purpose of the limitation was highly important in that if the exemption were not granted, the companies may not be able to operate in Australia, which would have flow-on implications for the Government and defence of Australia. It found that the limitation went no further than necessary to achieve this purpose, because the exemption was tailored so as to allow discrimination only where necessary to comply with US law, and was conditional on certain reporting obligations. It was also relevant that the exemption had previously been applied in as limited a way as possible, without complaint from the workforce.
The Tribunal commented on the concept of ‘arbitrariness’ in s 13(a) of the Charter. The Tribunal noted with approval the discussion of the meaning of the word ‘arbitrary’ by Kaye J in WBM v Chief Commissioner of Police  VSC 219. It commented that it is arguable that there was no risk of arbitrary interference with privacy in the present case, because any interference with privacy would be authorised by the exemption, and therefore not unlawful. Regrettably, this is to conflate the concepts of arbitrariness and unlawfulness, which are expressed separately in the Charter and bear different meanings under human rights jurisprudence.
Of further interest is the Tribunal’s acceptance that s 13 is, despite its internal modifier, subject to s 7(2). That is, that an interference with privacy could be arbitrary but still justified as reasonable under s 7(2).
The decision is at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/729.html.
Hamish McLachlan is a Lawyer in the Social Inclusion and Equality Program at Victoria Legal Aid