David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

This evening I want to discuss a matter which has recently been brought to my attention by my friends at Unions ACT, the peak trade union body here in the Australian Capital Territory. It is an issue which will have ramifications for many people, not just in the ACT but across Australia. It is in part an issue of industrial relations but it also has far wider human rights implications, particularly for our fellow citizens who were born in countries other than Australia.

Last year a group of companies working in the aerospace and engineering fields applied to the ACT Human Rights and Discrimination Commissioner for an exemption from the provisions of the ACT Discrimination Act 1991. They sought exemption from section 109(1) of that act, which prohibits discrimination on the grounds of race, a term which is generally taken to include nationality or place of birth—in other words, they were seeking permission to discriminate against certain employees or applicants for employment on the grounds of their race or birthplace. Why should Australian companies want to discriminate against people on these grounds? Let me make it clear at the outset that I am not accusing those companies, or the executives of those companies, of racism. Rather the explanation is simpler, if just as discouraging in some ways. These companies were in pursuit of commercial opportunities. Specifically they were seeking defence related contracts from the United States of America.

The difficulty for these companies is that contractors seeking to work on national security related projects for the US must comply with the guidelines, known as the International Traffic in Arms Regulations, or ITAR, which are laid down by the US State Department. These regulations prohibit people born in certain countries from having access to sensitive military information. The list of prohibited countries includes China, Lebanon, Vietnam, Burma, Syria, Iran and Cuba—to name just some. Companies seeking defence related contracts from the US cannot employ people born in these countries in any position which gives them access to sensitive information. The reasoning behind that is reasonably clear. The US is concerned, no doubt justifiably, that persons born in such countries may put their relatives at risk and are not necessarily being accused of being individually suspect. I am, of course, a pragmatist. I am a strong supporter of the alliance between Australia and the US and I understand that the US operates in an international world which is not always a pleasant or proper place. But the problem here is that we have a situation where Australian citizens are being discriminated against.

The difficulty that the ITAR regulations cause for Australian companies should be obvious. In this country we have over 200,000 people born in Vietnam, over 200,000 people born in China and over 100,000 people born in Lebanon. The majority of these people are Australian citizens or permanent residents intending to become citizens. When people come to Australia we, of course, accept them as part of our Australian community. When they become citizens they acquire equality with every other Australian. We do not classify our citizens by race, by prior nationality or by birthplace. All Australians enjoy the protection of our laws, including our anti-discrimination laws which protect them from discrimination on the grounds of race or nationality. On that basis it is quite unacceptable to me that Australian companies should be seeking permission to discriminate against Australian citizens in employment in order to comply with those US guidelines. These guidelines have been deployed to prevent the employment of persons on what I might say are spectacular grounds. I understand that one Australian was refused employment on the basis that they were born in Chad. The circumstance, however, is that this was a person of Greek ethnicity born to Greek parents on a plane that was flying over Chad; yet on that basis he was born in Chad and refused employment.

In another spectacular example, an Australian born in Vietnam, who had come to Australia in the aftermath of the Vietnam War, was raised here and served honourably in the Royal Australian Air Force, nonetheless was refused employment on the basis that they were born in Vietnam. Clearly, these examples reveal the stupidity and capriciousness with which this regulation is being enforced and equally make clear what a blunt policy instrument it is. Good, patriotic Australian citizens in individually impeccable circumstances are being prevented from accessing employment opportunities.

Let me make it clear that I am fully supportive of the desire of the United States to protect its military secrets. I am a strong supporter of the US alliance, and I understand that Australian companies benefit enormously from the opportunities and work that flows from working on projects associated with the national security of the US. I accept that such companies obviously have an obligation to comply with reasonable security guidelines to protect sensitive information. That does not mean, however, that Australia ought to allow companies to comply with demands imposed by the US when they so obviously contradict Australian law and the principles that we hold dear in Australia, such as the equality of all our citizens regardless of race or birthplace.

In order to comply with the ITAR regulations, companies such as those seeking the exemption are required to ask their employees not only whether they are Australian citizens but also where they were born. I point out that this would be illegal in the United States under US discrimination law. The ITAR regulations appear to impose a requirement on Australian companies which could not, as a matter of law, be imposed in the US.

In delivering her judgement rejecting the application for an exemption, Dr Helen Watchirs, the ACT Human Rights and Discrimination Commissioner, said that she agreed that the protection of security related information was a legitimate concern. She said, however, that she was not persuaded that this consideration could outweigh the violation of the rights of the affected employees that granting the exemption would entail. Commissioner Watchirs said:

• even if the objective is of sufficient importance ... it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups the measure will not be justified by the purpose it is intended to serve.

She also said:

I understand that an exemption would simplify the process of compliance with contractual obligations imposed by the US. However, the threshold for limiting the right to equality and non-discrimination on racial grounds is high.

I am not satisfied that sufficient efforts have been made to challenge the discriminatory terms of the ITAR as they apply in Australia.

I commend Commissioner Watchirs on this decision. I note that the Northern Territory Anti-Discrimination Commissioner, Tony Fitzgerald, has also rejected an application by Raytheon Australia for an exemption from the Territory’s anti-discrimination law.

It is disappointing, however, to see that David Boddice SC, a member of the Queensland Anti-Discrimination Tribunal, in a judgement in January of this year, did grant an exemption from the Queensland Anti-Discrimination Act to the same group of companies. This exemption granted in Queensland sets a very unfortunate precedent. It allows these companies to question their employees or prospective employees about their birthplace and to make employment decisions based on that information. It enables the absurd circumstances I spoke of earlier to come into place and affect an Australian citizen whose loyalty to this country is impeccable.

People have come to Australia from Vietnam, China, Lebanon and many other countries to escape poverty, war, violence and persecution. They have made a vital contribution to our economy, our culture and our national life. They are loyal to this country and we ought not to allow any form of discrimination against them. I believe the ITAR regulations policy is a blunt instrument that completely fails to take into account the most profoundly important personal circumstances. I believe these principles are more important than defence contracts.