The Problem:

  • The Equal Opportunity Act 1984 (WA) (EO Act) prohibits discrimination against persons on the grounds of sex, marital status, pregnancy, family responsibility or family status, race, religious or political conviction, impairment, age or gender history.
  • Generally speaking, the prohibition against discrimination is a wonderful thing, however, the combination of the EO Act and existing contractual obligations or international regulations can create an impossible dilemma for defence contractors.
  • Where it is impossible to comply with both the EO Act and existing contractual obligations, defence contractors can apply to the State Administrative Tribunal (SAT) for an exemption.
  • In BAE Systems Australia Ltd v Commissioner for Equal Opportunity [2019] WASAT 79, BAE Systems and BAE Defence successfully applied to the SAT to renew their exemption from the operation of certain sections of the EO Act, to enable them to comply with the requirements of the International Traffic In Arms Regulations of the United States of America (ITAR).
  • The SAT took this opportunity to set out the relevant factors involved when granting exemption under s 135 of the EO Act.
  • A defence contractor seeking an exemption from the EO Act will need to produce evidence to the SAT in order to satisfy the five factors below.

How to apply for an exemption from the EO Act?

1) Is the proposed exemption sought necessary?

  • Is the proposed exemption necessary for compliance with international regulation?
  • Is the proposed exemption necessary for fulfilling obligations under existing contracts?
  • In the absence of the proposed exemption, would the current conduct amount to prohibited discrimination under the EO Act?
  • Is there an express exception in the EO Act ss 27 – 35 that can achieve the same purpose as the proposed exemption?

2) Is the proposed exemption appropriate and reasonable in light of the reasons for which it is necessary?

  • In the absence of the proposed exemption, will significant negative consequences flow to:
    • The applicant;
    • Other parties to the agreement with the applicant; or
    • Australia’s national interests, including defence.
  • Is the scope of the proposed exemption confined to the minimum necessary to achieve compliance?
  • Are there measures in place to mitigate the adverse effects of the proposed exemption?

3) Is it in the public interest that the proposed exemption be granted?

  • Does the proposed exemption serve a national interest such as defence, national security or employment?
  • Does the proposed exemption facilitate employment or other financial benefits to the WA economy?
    • Value of applicant’s current contracts will be relevant.
  • If the application is for renewal of an existing exemption, has there been any material change in the way the applicant(s) have conducted themselves since the current exemption was granted?
    • If there has been no material change, it is in the public interest that a further exemption be granted, so as to be consistent with a previous decision of the SAT.

4) Have the applicants taken and will they continue to take steps to mitigate the potential adverse effects of the proposed exemption?

  • What measures have the applicant(s) and related entities implemented to ensure they minimise the reliance on and the impact of the proposed/existing exemption?
    • For example: 
      • Finding alternative roles for those effected by the exemption; 
      • Implementing equal opportunity standards; and 
      • A careful approach to advertising and recruitment.

5) Are there any non-discriminatory ways of achieving the objects and purposes for which the proposed exemption is sought?

  • Has there been opposition to the application from:
    • The Commissioner for Equal Opportunity; or
    • The public.
  • Has the applicant demonstrated that there are no less restrictive means reasonably available to achieve the same purpose as the proposed exemption?

What next?

It is critical that defence contractors satisfy the above factors in order to successfully apply for an exemption from the EO Act.