Right to Equality and Exceptions and Exemptions

Raytheon Australia Pty Ltd & Ors v ACT Human Rights Commission [2008] ACTAAT 19 (24 July 2008)

The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.

Facts

This case was an application to the Administrative Appeals Tribunal, heard by President Peedom, to review a decision of the ACT Human Rights Commission refusing to grant Raytheon Australia Pty Ltd (‘Raytheon’) an exemption under s 109 of the Discrimination Act 1991.  The exemption was sought from provisions of the Discrimination Act which make it unlawful for Raytheon to discriminate against current and prospective employees (including contract employees) on the grounds of national origin.

Raytheon is an Australian subsidiary of a major US company, which designs defence systems. Under a US law, the International Traffic in Arms Regulations (ITAR), contracts relating to certain defence data and material (ITAR controlled material) are required to contain restrictions about the transfer of such material to nationals of certain countries.  Mr Peedom accepted that Raytheon was contractually bound not to transfer ITAR controlled materials to employees who are ‘nationals of a third country,’ which includes dual citizens, and those who have previously held or are entitled to dual citizenship.  Access to the ITAR controlled materials was necessary for the employees in its deep space facility in the ACT and for many employees in its ACT head office.

The exemption was sought to the extent needed to permit Raytheon to meet the specific requirements imposed by the ITAR, and on conditions which would require it to minimise the adverse effect on employees.

Decision

The Tribunal set aside the decision of the Human Rights Commissioner not to grant the exemption to Raytheon.

Mr Peedom began by considering the purpose of s 109 of the Discrimination Act, which permits the HRC to exempt an applicant from the operation of specified provisions of the Act.  He considered that in doing so

it is necessary to avoid fixing upon the statement of objectives…and to have regard to the broader operation of the Act as a whole [para 43]

He noted that similar exemption provisions in anti-discrimination legislation in other States had been construed broadly, and not limited by the stated objects of the legislation.  He was minded to accept such reasoning, ‘in the interests of comity and uniformity.’ [48]

However, he went on to consider the arguments submitted on behalf of the Human Rights Commissioner that the situation was different in the ACT because of the particular wording of the exemption clause in the Discrimination Act, and because of the ACT Human Rights Act 2004.

Unlike exemption provisions in other Acts, s 109(3) of the Discrimination Act provides that the Human Rights Commissioner must have regard to:

• the need to promote an acceptance of, and compliance with, this Act; and
• the desirability, if relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination.

The Human Rights Commissioner argued that the wording of s 109 suggested that the kind of exemptions which might be granted under s 109 would be, for example, to allow a transitional situation under which discrimination would be phased out.  However, Mr Peedom found nothing in s 109 which would limit the operation of the exemption provision by reference to the broader objectives of the Discrimination Act.  He considered that the matters in s 109(3) must be considered but could be balanced against other issues of public interest.

Section 28 of the HRA

Mr Peedom went on to consider s 28 of the HRA, which provides that

Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

This provision had been amended with effect from 18 March 2008 to provide a list of criteria for assessing proportionality of restrictions on human rights.

Mr Peedom applied this proportionality analysis to the particular exemption sought by Raytheon, rather than to the effect of the exemption clause in s 109 more generally.  He found that in all the circumstances, the restrictions that would be imposed on the right to equality as a result of the exemption were proportionate, primarily because of the importance of national defence and security: [at 63]

It is, in my view, arguable that in assessing the importance of the purpose of the limitation that would be placed on that right by the grant of the exemption sought, as required by s 28(2)(b), the potential impact of the limitation proposed by the exemption sought by the applicants upon the employment opportunities that the applicants’ operations in the ACT afford as well as the commercial viability of those operations may not, by themselves, be sufficient to outweigh the harmful affects that would result from the grant of an exemption.  It may be that those are consequences which the applicants and the community are required to accept as a cost of ensuring that human rights are protected.

More difficult, however, is the balance to be struck against issues affecting national defence and security.  The elimination of discrimination based upon race and nationality may make a significant contribution to the avoidance of conflict and the requirement for security measures in consequence of it.  National defence and security is, however, likely to be a more complex issue and unlikely to be addressed solely by that means.  The measures adopted by the government of Australia for the defence of the nation and for securing the security of its citizens and the need for those measures are not, of necessity, matters about which informed findings can be made by the Tribunal so as to enable a balancing of those issues against the erosion of the human rights which the exemption sought would permit. ...Clearly, any significant compromising of the defence and security of the nation is a matter of paramount importance. The fact that the ACT is a small component of the national community does not, in my view, enable it to ignore issues which affect the nation as a whole.

Section 30 of the HRA

Mr Peedom then considered the effect of the interpretive provision, s 30 of the ACT HRA, which was amended with effect from 18 March 2008 to provide that

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

Mr Peedom noted that the Explanatory Statement to the amendment had stated that

unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail.  This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006.  It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza (2004) 2 AC 557.

He considered the decision in Ghaidan, which took an expansive view of the scope of the equivalent interpretive provision, s 3 of the UK Human Rights Act.  He found that while the decision is relevant, the amended ACT interpretive provision differs significantly from the UK as it is subject to the qualification that any interpretation of legislation must be consistent with its purpose.  He stated [at 77]:

That is, it seems to me, a matter of some significance having regard to the fact that s 3 of the UK HRA was clearly under active consideration in the drafting of s 30 and the Legislative Assembly chose to adopt a formula that contained a qualification not included in the equivalent United Kingdom provision.

The consequence of the difference in formulation is that, whereas s 3 of the UK HRA enables a court to modify the meaning of the legislation to which it is being applied bounded ‘only by what is possible’ (to use the language of Lords Nicholls), there is an additional requirement imposed in the interpretation of legislation to which s 30 of the ACT HRA is being applied, ie, the interpretation must be consistent with the purpose of the legislation.

As he had already concluded that the purpose of the exemption clause was not to limit the scope of matters which might be considered in granting an exemption, Mr Peedom found that s 30 could not be applied to reach a different interpretation.

The Tribunal concluded that the matters relied on by Raytheon in seeking an exemption could be considered under the exemption provision, and that an exemption was justified in this case.

Comment and Analysis

This case is significant, as the first to consider the operation of the amended limitation and interpretive provisions of the ACT HRA.  It goes into greater depth on the application of the interpretive provision than previous decisions, and gives detailed consideration to comparative jurisprudence, particularly the UK case of Ghaidan.  Overall, however, it seems disappointing that in a case which raises such fundamental human rights issues as an application to discriminate against workers purely on the grounds of their national origin, the right to equality in the ACT HRA was found to make no difference to the interpretation of the Discrimination Act or to the outcome.

It appears that the conclusion reached by the Tribunal distinguishing the approach in Ghaidan on the basis of the additional constraint in the interpretive provision in the ACT HRA (and the Victorian Charter) is a reasonable one.  Under s 30 of the ACT HRA, a Territory law must be interpreted in a way that is compatible with human rights, only so far as it is possible to do so consistently with its purpose.  This qualification, which is not present in s 3 of the UK HRA, limits the applicability of the approach in Ghaidan which clearly contemplates judicial re-writing of legislation in ways which may not be consistent with the legislative purpose.

Nevertheless, the interpretive approach taken by the Tribunal in this case appears unnecessarily narrow.  Although Mr Peedom began by considering the apparent purpose of the exemption provision of the Discrimination Act, he did not clearly articulate an underlying purpose, rather, he simply adopted the unfettered interpretation of similar provisions in other States, despite the additional factors for consideration in s 109(3), which point towards the ACT exemption having the ultimate purpose of furthering equality rights.  It is also arguable that the legislative purpose referred to in s 30 of the ACT HRA is the purpose of the legislation as a whole, rather than the purpose of a provision in isolation.  In this regard, it is questionable whether the Tribunal should so readily have dismissed the stated objectives of the Discrimination Act, which would also support a reading of the exemption provision more consistent with human rights.

The decision also raises the issue of the relationship between the limitation provision in s 28 of the HRA, and the interpretation provision in s 30, even though in this case Mr Peedom addressed these as independent questions.  Two competing approaches have emerged in this regard, based on the New Zealand cases of Moonen v Film and Literature Board of Review [1999] NZCA 3 and Hansen v The Queen [2007] NZSC 7.

In simple terms, following the Moonen approach, the decision-maker would firstly consider possible interpretations of the relevant provision, and ascertain which is most consistent with human rights.  This interpretation would be adopted unless it was inconsistent with the purpose of the legislation.

By contrast, under the Hansen approach, the decision-maker begins by ascertaining the ordinary meaning of the legislation, and then determining whether this would limit any human rights.  If so, the decision-maker must consider whether such limitations are justifiable under the reasonable limits provision (eg s 28 of the ACT HRA).  Only if the limitations cannot be justified would the decision maker proceed to consider other interpretations of the provision which might be more consistent with human rights.

In our view, the Moonen approach has the advantage of placing human rights at the centre of the interpretive process, rather than bringing them into play only if a limitation on a right is unreasonable.  The Hansen approach seems to start from the assumption that a legislative provision is not intended to be consistent with human rights, and focuses on limitations.  This approach seems inconsistent with international approaches to interpretation of rights and limitations upon rights which construe rights generously and limitations narrowly.

In some respects the approach taken by the Tribunal follows Hansen, however Mr Peedom applied the s 28 analysis to the particular case for an exemption presented by Raytheon, rather than to the ordinary interpretation of s 109, which may confuse the issue.  Despite his finding of justification under s 28, Mr Peedom also went on to consider (and reject) alternative interpretations of s 109 under the interpretive provision.

Another interesting question is whether the new public authority provisions in Part 5A of the ACT HRA, which will come into effect on 1 January 2009, will make any difference where similar applications are made in the future.  Under these provisions, both the Human Rights Commissioner and the Tribunal will assume the obligations of public authorities, and will be required to act consistently with human rights unless explicitly required by legislation to act otherwise.

The decision is available at http://www.austlii.edu.au/au/cases/act/ACTAAT/2008/19.html.

Gabrielle McKinnon is Director of the ACT Human Rights Act Research Project