Michael McKenna |
January 07, 2009
Article from:
The Australian
INTERNATIONAL defence contractor Boeing will be allowed to discriminate against employees whose nationalities do not meet US security laws.
In a landmark decision, Boeing has won support to ban existing and prospective employees, born in US terrorist-proscribed countries, from working on locally based projects involving the US military, despite opposition from Australia's Anti-Discrimination Commissions, unions and human rights groups.
The US law, introduced after the September 2001 terrorist strikes in New York and Washington, has been under mounting attack around the world.
The Canadian military last year backed down in its compliance to vet certain foreign-born nationals from joint projects with the US Government.
The Rudd Government is in negotiations with the US to exempt some of the security requirements on Australian-based workers.
In November, Boeing sought an extension of a 2003 exemption it was given under Queensland's Anti-Discrimination Act to exclude some nationalities on certain projects to comply with the US security regulations.
The countries banned by the US Government are Belarus, Cuba, Iran, North Korea, Syria, Venezuela, Burma, China, Liberia, Sudan, Ivory Coast, the Democratic Republic of Congo, Iraq, Lebanon, Rwanda, Sierra Leone and Somalia.
Similar exemptions have been granted to Boeing across the rest of Australia and are also enjoyed by the multinational's competitors in the aerospace industry.
Boeing has 4000 employees in Australia and told the Anti-Discrimination Tribunal in Queensland it would lose contracts if the exemption were not given.
In the first legal challenge in Australia to the exemptions, the Anti-Discrimination Commission in Queensland opposed Boeing's application for a renewed application, saying it was racist.
In his decision, tribunal president Doug Savage SC was critical of the US law, questioning the validity of determining the security risk of a person based on their place of birth.
"The fact upon which the discrimination proposed rests is really a fact irrelevant to the real concern - a concern about the true intentions of people hostile to the United States - a concern which might equally apply to US or Australian citizens," he said.
Mr Savage said Boeing failed to justify its claims that "the sky would fall in and that the businesses could not operate without the exemption".
But, while he rejected the application for a renewed exemption, Mr Savage said Boeing was allowed under another part of the act - covering "genuine occupational qualifications" - to ban certain nationalities from projects because of the very real threat of criminal prosecution in the US if their laws were breached.
"The fact is that an employee from a country proscribed by the Government of the United States cannot work in various areas for the applicant whether or not the exemption is granted," Mr Savage said.
A spokesman for Boeing yesterday welcomed the decision. "We are pleased to have confirmation as a result of this decision from the Queensland tribunal that we are entitled to take necessary steps to comply with the US export requirements," the spokesman said.
Acting Queensland Anti-Discrimination Commissioner Neroli Holmes said she believed the decision still "left the door open" to a lawsuit if Boeing overstepped the requirements of the US laws.
Ms Holmes said all Australia's Anti-Discrimination Commissions opposed the exemptions, but she could not comment on a legal challenge to the decision.
"Given the findings, we will still reflect on where we stand on this particular application," Ms Holmes said.
