THE EXEMPTION APPROACH TOWARD RIGHTS

A REVIEW OF THE BOEING AUSTRALIA DECISION

Abstract

Sensitive aerospace technology transfer and the manufacture of aeronautic and military components is subject to American law that places American security ahead of equality law. Reconciling the extraterritorial reach of powerful states and companies with domestic law can benefit from the ideas and solutions applied in other similar legal jurisdictions. The legal issue recently addressed by the Supreme Court of Canada in the Quebec v Bombardier Inc (Latif) decision has been consistently managed in Australia using a different approach more than eight years prior to Latif. In many ways Canada and Australia overlap in their respective economic, political, social, historical and legal cultures. However, Australian states traditionally enact much more detailed and nuanced private sector equality legislation, which is in turn subjected to broader administrative review and more adjudicative options than found in Canada. These differences permit Australia to employ the statutory exemption model. For public interest reasons relating to employment, the economy, defence, post-secondary education and research, private sector industries and companies may be granted indefinitely renewable exemptions from equality obligations. This article compares the Canadian legislation in Latif with the Australian State of Victoria’s Equal Opportunity Act 1995, which contains numerous “exemptions” to the equality principle as demonstrated in the Boeing Australia case. The more complicated and time-consuming Canadian approach renders less generalizable decisions than the proactive exemption model employed in Australia.