Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

Date: 14 November 2022
Tribunal: Queensland Industrial Relations Commission
Judicial Officer: Dwyer IC
Human Rights Act 2019 (Qld) Sections: ss 3, 5, 8, 13, 15, 25, 48, 58
Rights Considered: Right to recognition and equality before the law; Right to privacy and reputation
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7, 13, 14, 15, 15A, 25, 113, 122, 123, 124, Sch 1
Keywords: Discrimination; Employment

This case concerned an application for an exemption from the Anti-Discrimination Act 1991 (Qld) by a Queensland-based defence contractor, in order to ensure compliance with US laws prohibiting sharing technology and data with persons holding citizenship or permanent residency in a group of specified countries. The Commission considered that the exemption would impact on the entitlement to equal protection of the law without discrimination (section 15(3)), and right to equal and effective protection against discrimination (section 15(4)), but that the limitation was justified on the basis of contract compliance and national security. The exemption was ultimately granted.

The Commission noted that the primary objectives of the Human Rights Act 2009 (Qld) are to protect and promote human rights: at [37]. The Commission noted that it was acting in an administrative capacity when deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld): at [37]. When interpreting section 113 of the Anti-Discrimination Act 1991 (Qld), the combined effect of sections 5(2)(a) and 48 of the Human Rights Act 2009 (Qld) was that the Commission had to comply with section 48 of the Human Rights Act 2009 (Qld): at [37].

The exemption would allow discriminatory conduct to occur, impacting on the entitlement to equal protection of the law without discrimination, and equal and effective protection against discrimination: at [71]. The Commission noted that human rights may be subject to 'reasonable limitations' that can be 'demonstrably justified': at [72]. As the exemption sought would undoubtedly limit protections, there would need to be consideration of the interdependent items set out at sections 13(2)(a)-(g) of the Human Rights Act 2009 (Qld). The Commission asserted that none of these factors carried any particular weight in relation to the other: at [73]. The Commission noted that the considerations were included only on the basis that they 'may' be relevant: at [73]. Given the broad language of s 13(2) of the Anti-Discrimination Act 1991 (Qld), the Commission noted that there needed to be a holistic consideration of the listed items, to the extent each particular item was relevant to the facts in issue: at [74]. The Commission set out section 13(2)(b) of the Human Rights Act 2009 (Qld): at [76].

The Commission engaged in a detailed analysis of section 13(2) considering each of the factors in turn.

The exemption would enable access to controlled data and was essential for fulfilling Commonwealth contracts: at [78]. Moreover, the restrictions imposed by US law were fundamentally founded in matters of both national and international security, with data being controlled to ensure defence capabilities were not compromised or otherwise misused in a manner that may potentially harm the very society they are designed to protect: at [79]. The Commonwealth government was equally bound to, and supportive of, these restrictions given their critical contribution to national security: at [79].

The Commission concluded that while it was important to protect a select group of individuals from discrimination when seeking employment with the Australian Defence Force, this “[paled] by comparison to the national security of an entire society”: at [89]. Consequently, the purpose of the limitation was paramount to the human rights being limited: at [90].

The exemption was ultimately granted: at [104].

Visit the judgment: Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440