Raytheon Exemption Application (VCAT) – Apr 2011

Raytheon sought a three-year exemption from provisions in the Equal Opportunity Act 1995 to be able to seek information from their prospective employees and contract workers about their nationality and place of birth, and to refuse to employ them based on this information. This information was sought to comply with US laws relating to defence contracts.

The Commission made submissions that the applicant’s exemption application be refused. The Commission argued that the exemption power should be construed narrowly and that in determining the meaning of a statutory provision, regard should be had to the object, purpose and scope of the legislation. Courts and tribunals should not impute an intention to abrogate or curtail fundamental rights. The Commission argued that the Tribunal should adopt an interpretation of section 83 of the Equal Opportunity Act 1995 which only allows exemptions that are objective, reasonable, proportionate and for legitimate purposes, and, if an exemption is granted, that it is demonstrably justifiable in a free and democratic society. In this case, the Commission submitted that the applicant had not discharged the onus required to demonstrably justify the limits to the equality right that it seeks to have excused by the granting of the proposed exemption.

VCAT held the proposal amounted to reasonable limit on the rights to equality and privacy. VCAT held that although these rights were of fundamental importance, that the purpose of the limitation was also vitally important for national security as it enabled the Australian Government to maintain its defence capability and develop its defence industry.