Exemptions Granted to Unlawful Discrimination

Under s.109 of the Discrimination Act 1991, the Commission may exempt an applicant from provisions of the Act protecting against unlawful discrimination, sexual harassment and related protections.

Two exemptions have been granted to date to:

  • Raytheon Pty Ltd; and
  • BAE Systems Australia Limited

Defence companies around Australia have been granted exemptions to anti-discrimination laws, when they contract with the United States not to transfer controlled material to nationals of certain proscribed countries, which currently includes countries such as China, Vietnam, Lebanon and Sri Lanka. The restriction is based solely on place of birth, and applies to dual nationals who are also Australian citizens.

Raytheon Exemption

On 20 May 2015, the Commissioner granted Raytheon a further exemption until 14 July 2017, coinciding with the end date of the BAE exemption already granted (see below). Details are available on the ACT Legislative Register here.

Previous Exemptions

Raytheon’s original application for an exemption from the Commission was refused.

In August 2008, the former ACT Administrative Appeals Tribunal overturned the Commissioner’s previous decision to refuse an Exemption application, and exempted the company from the operation of sections 10, 13, 23 and 69 of the Act, providing certain conditions were met. Details are in the Tribunal’s decision. The exemption expires in 2011.

On 15 May 2009, the ACT Master of the Supreme Court declined the Commission’s application for leave to appeal the decision.

The Commission granted a further exemption for a period of 3 months on 30 August 2011 while it considered Raytheon’s request for a further three year exemption. The notifiable instrument regarding this is available on the ACT Legislation Register here.

On 1 December 2011, the Commission granted Raytheon a further exemption for 3 years. Details are available on the ACT Legislative Register here.

BAE Exemption

On 15 July 2014 the Discrimination Commissioner granted BAE Systems an exemption for a further three years on the same terms as that previously granted. This exemption ends on 14 July 2017. More information is available from the notifiable instrument Exemption decision on the ACT Legislation Register here.

Previous Exemptions

On 3 January 2008 BAE Systems Australia applied for an exemption from the Commission. On 30 June 2010 a decision was made by the ACT Human Rights and Discrimination Commissioner, refusing the exemption sought.

On 27 July 2010 BAE Systems Australia made application for a review of the decision. Following mediation and extensive discussions, the parties reached an agreement on the terms of an exemption under section 109.  More information is available from the notifiable instrument Exemption decision on the ACT Legislation Register here.