Re: Cobham Aviation Services Pty Ltd & Ors [2022] QIRC 326

Date: 19 August 2022
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: McLennan IC
Human Rights Act 2019 (Qld) Sections: ss 3, 4, 5, 7, 8, 9, 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 4, 7, 14, 15, 15A, 24, 25, 113, 124, 127; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 43
Keywords: Discrimination

The Applicants, of which there were six, sort exemptions under s 113 of the Anti-Discrimination Act 1991 (Qld) from the operation of sections 7, 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) insofar as those sections relate to the ‘race’ of applicants for employment, employees and contract workers: [1]. In the course of their employment, the applicants must comply with obligations pursuant to US Export Authorizations and, were concerned that, to ensure compliance, they may be obliged to engage in conduct in respect of certain persons which may contravene these sections of the Act: [3].

The Commission considered itself bound by section 58 of the Human Rights Act 2019 (Qld) as it was acting in an administrative capacity as a public entity in deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld): [22]. The Commission clarified that both the way in which the Commission made the exemption decision, and the exemption decision itself, must be compatible with human rights, and that proper consideration must be given to relevant human rights – to the extent possible consistent with its purpose: [33].

To determine whether a person’s human rights may be affected by the granting of an exemption under s 113(1) of the Anti-Discrimination Act 1991 (Qld), the Industrial Commissioner considered the effect of the exemption: [39]. Upon consideration, the Commissioner considered that the granting of the exemption would not interfere with the s 25 right to privacy in an arbitrary way: [43]. The Commission, however, identified that the granting of the exemption may affect the right to recognition and equality before the law (section 15 of the Human Rights Act 2019 (Qld)): at [44]. The Commissioner considered whether this human right was limited only to the extent that was reasonable and demonstrably justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [45]. The Commissioner considered that, in the circumstances, the limitation on human rights is reasonable and justified as it is appropriate for achieving compliance with requisite US export control laws: [57]. Likewise, the commissioner is not satisfied that any less restrictive or reasonably available ways existed to achieve that purpose: [55].

The Commissioner was satisfied that the exemption was compatible with human rights and granted the exemption to the Applicants for a period of five years: [72].

Visit the judgment: Re: Cobham Aviation Services Pty Ltd & Ors [2022] QIRC 326