The New South Wales government has been accused of “trashing” anti-discrimination laws by allowing at least six arms manufacturers to discriminate against workers in order to comply with US export restrictions.
Some of the world’s biggest defence companies – including Northrop Grumman, Raytheon and BAE Systems – have been given lengthy exemptions from the state’s racial discrimination laws in the past three years.
In doing so, the NSW government has allowed companies to reject job applicants, or sack or transfer employees simply due to their foreign citizenship or country of birth.
Foreign employees can have their access to sensitive information restricted, and be forced to wear a coded “badge” indicating a lower level of security clearance.
Similar forms of discrimination are being allowed across the country. Arms manufacturers have recently been given exemptions to racial discrimination laws in Western Australia, Queensland, Victoria, the ACT, and South Australia.
The exemptions are given so the companies can comply with US export restrictions, designed to protect American weapons technology and knowledge – a law known as the international trafficking in arms regulations (Itar).
Guardian Australia contacted the major arms manufacturers for comment on the practice, which the exemptions make entirely lawful. Northrup Grumman declined to comment, while BAE Systems and Raytheon did not respond.
Simon Rice, a law and discrimination expert at the University of Sydney, has been campaigning against the exemptions for years. Rice described them as the “worst kind of cultural imperialism”, which in effect make Australian law subservient to US regulations.
He said there were other ways to ensure information about American weapons technology was safeguarded. “It’s a blanket rule, which is unsophisticated and heavy handed,” Rice told Guardian Australia. “The normal approach to any rights limitation is to search for a proportional accommodation. What is the actual evil you want to guard against?” he said.
The shadow NSW attorney general, Paul Lynch, said the exemptions in effect “trashed our longstanding principles of anti-discrimination” and urged the state government to lobby the federal government for change.
“Relying on country of origin or citizenship to decide whether a future employee is reliable or trustworthy seems remarkably stupid – to say nothing of being a pretty basic breach of our anti-discrimination provisions,” Lynch told Guardian Australia.
“There is something very wrong about this insertion of foreign US law into our society,” he said.
The NSW attorney general, Mark Speakman, said there were safeguards that ensured the exemptions did not allow “unwarranted discrimination”.
He said the powers have existed since the Anti-Discrimination Act was enacted by the Wran Labor government in 1977.
Speakman said the exemptions were “common sense” and precautionary, and granted by the president of the anti-discrimination board.
“On occasions, exemptions have also been used to allow employers to reject employment applications on the basis of citizenship, country of birth or substantive contact with certain proscribed countries, but not on the basis of a prospective employee’s race, colour, descent, ethnic or ethno-religious origin,” he said.
“Strict controls are in place in order to safeguard against unwarranted discrimination.”
The arms manufacturers are placed in a difficult position. If they are unable to obtain exemptions, they will be unable to properly operate in Australia and risk prosecution or heavy fines for breaching US regulations.
They have previously warned a failure to grant the exemptions would “compromise Australia’s defence capabilities and in some cases may impact on the readiness of Australia’s defence forces”.
In 2007, Raytheon applied for an exemption in the ACT. It sought, among other things, to introduce a “badging system to identify individuals who hold dual nationality or foreign nationality”.
The application to the human rights commission included evidence that Raytheon would likely cease operating in Australia altogether if it was not exempted.
But the ACT’s human rights commissioner, Helen Watchirs, refused to grant the exemption, arguing it sent a message that the right to equality and non-discrimination was a “commodity subordinate to other tradable interests”.
“Already some members of ethnic or religious minority backgrounds are feeling vulnerable to racial hostility and the grant of this exemption may serve to legitimise such hostility, despite the genuine mitigation efforts that Raytheon is committed to,” Watchirs wrote.
“It is particularly important to uphold human rights and combat expressions of racism in the current environment where people can be branded as terrorist suspects just by virtue of their ethnic/national origin or religious belief,” she said.
Watchirs’ decision was eventually overturned in the administrative appeals tribunal, and the commission was denied leave to appeal to the ACT supreme court.
Rice believes Australia’s tribunals are being put in a difficult situation in which they either have to shut down a business or allow discrimination. “They’re put in a really awkward position,” he said. “They really shouldn’t have to deal with it. It’s a political question.”
He believes the federal anti-discrimination legislation, as opposed to state and territory law, does not allow for such exemptions to be made. Rice said that still needed to be tested in the courts, which required a complaint to be made.
Otherwise, it required representations to be made by Australia to the US. “You shouldn’t put the tribunals in this position. You’ve got to go back to the US and sort it, but no one has the stomach to do it,” he said.
