Re Leidos Australia Pty Ltd [2021] QIRC 229

Date: 28 June 2021
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Hartigan 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
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 4, 7, 14, 15, 15A, 24, 25, 113, 124, 127, 174B
Keywords: Discrimination.

The case concerned an application to grant an exception under section 113 of the Anti-Discrimination Act 1991 (Qld) so that the applicant could complete their contracted works. The Commission ultimately concluded that it would be appropriate and reasonable to grant the exemption. The Commission discussed the applicability of the Human Rights Act 2019 (Qld); the nature of the purpose of the limitation on human rights; whether there was a relationship between the limitation and its purpose; whether the limitation was proportional to its purpose and whether there was a lack of availability of less restrictive alternatives.

This case concerned an application to grant an exception under section 113 of the Anti-Discrimination Act 1991 (Qld) so that the applicant could comply with US export laws in performing their contracted works with the Commonwealth of Australia, in particular the Department of Defence. These export laws would restrict, and in some cases prohibit, access to certain material by persons based on, or by virtue of association with, certain nationalities, citizenships and/or countries of birth. Leidos was required to access this material to carry out some of its contracted works. Thus, Leidos sought an exemption to conduct specific activities, which included, for example, restricting particular personnel from access to such material, in order to comply with these export laws.

The Commission first considered that a decision pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) involves acting in an administration capacity as it does not involve the enforcement of existing legal rights or the making of a binding and authoritative determination between legal parties of their legal rights and duties according to existing legal principles: at [55]. Therefore, the Commission considered that section 58 of the Human Rights Act 2019 (Qld) applied to them when determining whether to grant an exception pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) and set out other relevant provisions, such as the provisions concerning right to recognition and equality before the law (section 15) and the right to privacy (section 25): at [56] - [60].

The Commission then considered that section 113 of the Anti-Discrimination Act 1991 (Qld) must be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with its purpose in accordance with section 48 of the Human Rights Act 2019 (Qld) and set out other relevant provisions: at [61] - [64].

The Commission accepted that ‘….the right to privacy might arise because Leidos seeks to use personal information including place of birth, nationality and citizenship details which may intrude on a person's privacy’: at [100]. However, the Commission considered that the possible interference could not be regarded as arbitrary, as ‘…It could not be said that by seeking the information in accordance with its obligations to act in compliance with the US export control laws, that Leidos is acting in a capricious or unpredictable way’ and that, ‘…given the interference is directly aligned with Leidos’ attempts to comply with the US export control laws and its contractual obligations…,’ the Commission did ‘…not consider that such conduct lacks proportionality to the end sought or was without justification’: at [106]. Therefore, the Commission did not consider that the right to privacy was engaged in the circumstances: at [107].

The Commission then considered that the right to recognition and equality before the law had been engaged in the matter and would be limited, so section 13 of the Human Rights Act 2019 (Qld) would need to be regarded: at [108] – [111].

The Commission noted that section 13(2)(b) of the Human Rights Act 2019 (Qld) provides that ‘the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom is a matter that must be considered when determining whether the limitation on a human right is reasonable and justifiable’: at [117]. The Commission considered that the purpose, which ‘includes utilising nationality and national origin information to make determinations about the engagement of Leidos' workforce,’ was a limitation ‘undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom’: at [118].

The Commission then determined these considerations would need to be weighed regarding the exemption’s purpose: at [119]. The Commission recognised that Leidos must comply with the US export control laws in order to perform some of its contracted work with Defence and other Commonwealth agencies: at [120]. The Commission also recognised that the exemption is important for allowing Leidos ‘to provide infrastructure to Defence which…is critical in ensuring Australia's defence and national security interests are met’: at [119]-[120].

The Commission said that the exemption not being granted to Leidos would mean that Leidos would “not be able to perform work, some of which relates to national security, required under its contracts (and future contracts) with Defence and other Commonwealth agencies”: at [120].

The Commission concluded there was ‘a clear relationship between the terms of the limitation and its purpose’; ‘the limitation helps to achieve the purpose for which it is sought’ and the ‘terms of the proposed exemption are connected to and provide a means by which the purpose can be achieved’: at [121] – [122].

The Commission also concluded that the terms of the exemption do not go beyond the purpose of the exemption as the conditions apply only to conduct where necessary to enable Leidos ‘to obtain and maintain US export licenses and approvals or to perform contractual obligations’ and provide that Leidos ‘will take all steps reasonably available to it to avoid conduct’ otherwise breaching the relevant Anti-Discrimination Act 1991 (Qld) provisions: at [123] – [124].

The Commission then considered that the limitations would not be reasonable or justifiable ‘if they go further than is necessary or…less restrictive alternatives [are] available’: at [125]. The Commission noted that ‘the scope of the exemption is such that it is only applied in circumstances where Leidos must comply with the US export control laws and in order for it to meet its' contractual obligations’ and that the Commission was not satisfied that ‘there is any less restrictive and reasonable available way to achieve the purpose’: at [129].

The Commission considered ‘the limitation in the circumstances of this matter to be legitimate and of sufficient importance to limit the human rights affected’ and that the limitations were ‘consistent with the purpose for which they are sought’ and were ‘proportionate to and appropriate for achieving that purpose’ so considered the limitation was reasonable and justifiable: at [134]-[135].

The Commission also noted that section 48 of the Human Rights Act 2019 (Qld) must be considered when considering the application of section 113 of the Anti-Discrimination Act 1991 (Qld) and that section 48(1) of the Human Rights Act 2019 (Qld) ‘does not authorise an interpretation of statutory provisions which is inconsistent with their purpose’ but rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is ‘compatible with human rights’: at [137]-[138]. Therefore, ‘the next step was to consider the matters that have traditionally been considered when granting an exemption’ pursuant to section 113(1) of the Anti-Discrimination Act 1991 (Qld): at [139]. The Commission ultimately concluded that it would be appropriate and reasonable to grant the exemption sought by Leidos: at [156].

Visit the judgment: Re Leidos Australia Pty Ltd [2021] QIRC 229