[2026] WASAT 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LINFOX AUSTRALIA PTY LTD [2026] WASAT 1 MEMBER : DR M EVANS-BONNER, SENIOR MEMBER HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 JANUARY 2026 FILE NO/S : EOA 13 of 2025 BETWEEN : LINFOX AUSTRALIA PTY LTD Applicant Catchwords: Equal Opportunity Act 1984 (WA) - Race - Citizenship - Application for further exemption under s 135(2) of the EO Act from the operation of s 37, s 39 and s 49 of the EO Act for a term of 5 years - Applicant requires further exemption to meet contractual obligations - International Traffic in Arms Regulations - Defence Trade Controls Act 2012 (Cth) and Defence Trade Controls Regulations 2013 (Cth) - Whether further exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances - Further exemption granted for 3 years - no ability to grant an interim exemption under the EO Act - Terms and conditions imposed on grant of further exemption Legislation: Defence Trade Controls Act 2012 (Cth), s 31(3), s 31(4) Defence Trade Controls Regulations 2013 (Cth), reg 5 Electoral Act 1907 (WA), s 17 Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s 50, s 50(d), s 51, s52, s 69, s 70, s 71, s 72, s 73, s 74, s 135, s 135(1), s 135(2), s 135(3), s135(6), Page 1 [2026] WASAT 1 s 136(1), s 136(2), Pt VI, Pt IX Equal Opportunity Regulations 1986 (WA), reg 24 Interpretation Act 1984 (WA), s5 State Administration Tribunal Act 2004 (WA), s 60(2) Result: Application for further exemption granted for 3 years with conditions Category: B Representation: Counsel: Applicant : N/A Solicitors: Applicant : Russell Kennedy Pty Ltd Case(s) referred to in decision(s): ASC Pty Ltd [2024] WASAT 39 BAE Systems Australia Limited [2025] WASAT 54 BAE Systems Australia Ltd and Commissioner for Equal Opportunity [2019] WASAT 79 Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 Thales Australia and Commissioner for Equal Opportunity [2012] WASAT 222 Page 2 [2026] WASAT 1 REASONS FOR DECISION OF THE TRIBUNAL: Introduction On 28 July 2025 the Applicant, Linfox Australia Pty Ltd (Linfox) 1 made an application to this Tribunal under s 135(2) of the Equal Opportunity Act 1984 (WA) (EO Act) seeking an order granting them a further exemption from the operation of s 37, s 39 and s 49 of the EO Act (Application). Section 37 and s 39 of the EO Act make it unlawful to refuse to 2 employ job applicants, employees, and contract workers or to prevent otherwise qualified employees or contract workers from undertaking certain work on the ground of their race, ethnic or national origin or nationality. Section 49 of the EO Act makes it unlawful to require job 3 applicants, employees, and contract workers to provide information about their race, ethnic or national origin or nationality. A person can seek an exemption from the operation of specified 4 provisions of the EOA, including s 37, s 39 and s 49, pursuant to s 135(1) of the EO Act. If an exemption has been granted, a person can apply to the Tribunal for a further exemption pursuant to s 135(2) of the EO Act prior to the expiry of the previous exemption. Exemptions were previously granted to Linfox by this Tribunal on 5 31 July 2015 for a period of 5 years (2015 Exemption)1 and on 5 August 2020 (2020 Exemption), also for a period of 5 years and on identical terms to the 2015 Exemption.2 Linfox is a national company that, amongst other things, provides 6 warehousing and transport services. Linfox has contractual obligations with the Commonwealth whereby Linfox and its personnel are required to handle defence-related material, data, information and technology (Defence Materials) used by the Australian Defence Force (ADF). Linfox has a contract with the Commonwealth which requires 7 Linfox to comply with the laws of the United States of America (US) including the International Traffic in Arms Regulations (ITAR) made under the Arms Export Control Act (AEC Act). The contract also 1 EOA/17/2025. 2 EOA/13/2020. Page 3 [2026] WASAT 1 requires Linfox to comply with Defence Trade Controls Act 2012 (Cth) and Defence Trade Controls Regulation 2013 (Cth), to be a member of the Commonwealth's Defence Industry Security Program (DISP) and to comply with the Commonwealth Defence Security Principles Framework (DSPF). To comply, Linfox needs to undertake activities that may otherwise 8 contravene provisions of the EO Act with respect to 'race'. The specific activities Linfox seeks to undertake that would be 9 covered by the further exemption are set out with more specificity in cl 1 of Annexure A. I will generally refer to them as the Proposed Exempted Activities. The Proposed Exempted Activities include being able to require 10 current or potential employees to provide details of their citizenship and to be able to maintain records about citizenship. Additionally, Linfox needs to be able to make decisions based on 11 citizenship information so as not to contravene its contractual obligations with the Commonwealth. Those decisions include being able to reject applications from potential employees for positions requiring access to Defence Materials. They also include decisions preventing or restricting the access of employees to Defence Materials or to areas of Linfox's facilities connected to Defence Materials based on citizenship. Linfox seeks a renewal of their 2020 Exemption under s 135(2) of 12 the EO Act so that it does not contravene the EO Act if it continues to engage in these activities. For the reasons set out below, I have decided to exercise discretion 13 to grant Linfox a further exemption from the operation of s 37, s 39 and s 49 of the EO Act for a period of 3 years, subject to conditions, instead of the 5-year term sought by Linfox. In addition, Linfox initially sought an interim exemption pending 14 the determination of the further exemption. The EO Act does not provide for interim exemptions, and accordingly an interim exemption was not granted. The orders, and my reasons for making them, are set out below. 15 The issues The issues I must determine are: 16 Page 4 [2026] WASAT 1 (1) Whether I should exercise discretion to grant the further exemption sought by Linfox. (2) If I decide to exercise discretion to grant the further exemption, whether it should be subject to any conditions or limitations and the length of time it should be granted for. Procedural overview Together with its application for the further exemption filed on 17 28 July 2025, Linfox filed a document titled 'Application for Order' which set out its grounds for making the application (Application) and the text of the exemption sought (Original Exemption). Linfox also filed an Affidavit of James Pereira, Defence National 18 Security Manager for Linfox affirmed on 28 July 2025, with attachments comprising approximately 1,000 pages (First Pereira Affidavit). The attachments to the First Pereira Affidavit include two other 19 affidavits that were before the Tribunal when the 2015 Exemption was granted. Those were an affidavit of Andrew Raimon Collett, in-house counsel for Linfox, affirmed on 25 May 2015 (Collett Affidavit), and an affidavit of Lysa Davey, HR/IR Manager - Defence for Linfox, affirmed on 1 June 2015 (Davey Affidavit). The First Pereira Affidavit confirms that there are no material changes to the information provided in those affidavits, except as otherwise set out in the First Pereira Affidavit. Pursuant to reg 24 of the Equal Opportunity Regulations 1986 20 (WA), the Commissioner for Equal Opportunity (Commissioner) is a party to an application unless the Commissioner lodges an affidavit with the Tribunal setting out the reasons why the Commissioner does not wish to be a party to the application. On 4 August 2025, the Commissioner filed an affidavit confirming 21 that he did not support or oppose the Application and that he did not wish to remain as a party to this proceeding (Commissioner's Affidavit). On 29 August 2025 I made programming orders at a directions 22 hearing, including making an order that the Commissioner was no longer a party to this proceeding. I sought clarification as to several provisions in the text of the 23 exemption filed on 28 July 2025, and accordingly, made orders that Linfox file in the Tribunal and provide to the Commissioner a revised copy of the further exemption sought. Page 5 [2026] WASAT 1 Section 135(3) provides that the Tribunal 'shall cause notice of 24 an application for an exemption, a further exemption, or the variation of an exemption or further exemption to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct'. Accordingly, I made orders that Linfox place an advertisement in 25 the Public Notices section of The West Australian newspaper by no later than 13 September 2025, so that if any person wished to be a party to the Application, they should notify the Tribunal in writing. I also made orders that: 26 (a) By 12 September 2025, Linfox must send a notice of the Application to each of their Western Australian employees and contractors and place the notice on its website up to and including 26 September 2025. (b) By 30 September 2025, Linfox was to file with the Tribunal an affidavit with annexures to confirm it had complied with the advertising and notice requirements and to provide any further submissions or comments it had received in response to the notice of the Application. (c) The matter be listed for another directions hearing on 10 October 2025 to consider further programming orders. On 8 September 2025, Linfox filed a revised copy of the exemption 27 order sought (Further Exemption), together with an explanatory letter (September 2025 Letter). Linfox also filed an Affidavit of James Pereira affirmed on 28 30 September 2025 (Second Pereira Affidavit) to confirm that the orders I made concerning the advertising and notice requirements had been complied with. In the Second Pereira Affidavit, Mr Pereira also affirmed that no 29 objections, nor any other correspondence, concerning the Application had been received in response to the distribution of the notice. The Tribunal did not receive any applications for interested persons 30 to be joined as parties and did not otherwise receive any submissions or comments. Page 6 [2026] WASAT 1 I am satisfied that persons who may have an interest in the 31 proceeding have had an opportunity to be joined, and to make submissions or provide comments. On 10 October 2025 I ordered that, subject to any other order the 32 matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), and that the decision was reserved. In summary, the documents I have had regard to in deciding the 33 Application are the: (a) Application; (b) Commissioner's Affidavit; (c) First Pereira Affidavit; (d) Second Pereira Affidavit; (e) September 2025 Letter; and (f) Original Exemption and the Further Exemption. Legislative framework I recently outlined the legislative framework concerning further 34 exemption applications in BAE Systems Australia Limited [2025] WASAT 54 (BAE Systems). I will now, for ease of reference, repeat what I said in those reasons about the legislative framework. Objects The objects of the EO Act are set out in s 3, which provides: 35 The objects of this Act are - (a) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and (b) to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and Page 7 [2026] WASAT 1 sexual harassment and racial harassment related to accommodation; and (c) to promote recognition and acceptance within the community of the equality of men and women; and (d) to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages. Unlawful discrimination on the ground of race In this application, Linfox has applied for the Further Exemption 36 from the operation of s 37, s 39 and s 49 of the EO Act which concern unlawful discrimination on the ground of 'race'. 'Race' is defined in s 4 of the EO Act to include national origin or 37 nationality and therefore citizenship. The definition of 'race' is as follows: race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act; Section 37 of the EO Act makes it unlawful to discriminate against 38 job applicants and employees on the ground of race. The relevant parts of s 37 of the EO Act provide: (1) It is unlawful for an employer to discriminate against a person on the ground of the race of that person - (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of the race of the employee - (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or Page 8 [2026] WASAT 1 (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. … Section 39 makes it unlawful to discriminate against contract 39 workers on the ground of race. It provides: It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's race - (a) in the terms or conditions on which the principal allows the contract worker to work; or (b) by not allowing the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or (c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or (d) by subjecting the contract worker to any other detriment. Section 49 makes it unlawful to require a person to provide 40 information about their race. It provides: Where, by virtue of a provision of Division 2 or this Division, it would be unlawful in particular circumstances for a person to discriminate against another person, on the ground of the other person's race, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by way of completing a form or otherwise) that persons of a different race would not, in circumstances that are the same or not materially different, be requested or required to provide. Specific exceptions Despite the objects of the EO Act, the legislature included 41 exceptions in recognition that in some circumstances discrimination may be justified. For example, s 50, s 51 and s 52 of the EO Act provide for specific exceptions whereby conduct would not be unlawful discrimination based on race. Section 50, titled 'Genuine occupational qualifications' allows 42 discrimination in work or employment in circumstances including where race is necessary for the performance of that work. It provides: Page 9 [2026] WASAT 1 Nothing in this Part applies to or in respect of any work or employment where that work or employment involves any one or more of the following - (a) participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity; or (b) participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity; or (c) working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity; or (d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race. Section 50(d) of the EO Act provides for 'positive discrimination' to 43 promote the welfare or equality of persons of a particular race. So does s 51 of the EO Act which is titled, 'Measures intended to achieve equality' and provides: Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is - (a) to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or (b) to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits.' Section 52 of the EO Act, titled 'Citizenship', provides an exception 44 where a public authority specified in Pt IX of the EO Act can discriminate between Australian citizens and persons who are not Australian citizens in accordance with a law of the State. It provides: This Part does not apply to or in respect of any act of an authority to which Part IX applies being an act performed pursuant to a Western Australian law that discriminates between Australian citizens and persons who are not Australian citizens. Page 10 [2026] WASAT 1 By way of illustration, in Commissioner for Equal Opportunity v 45 ADI Limited [2007] WASCA 261 (ADI), Martin CJ, gave the example of s 17 of the Electoral Act 1907 (WA) which provides that a person must be an Australian citizen to be enrolled to vote in a state election, and explained that, 'the legislature considers that important right should be restricted to those who owe allegiance to this country by reason of their citizenship': at [66]. General exceptions There are also general exceptions in Pt VI of the EO Act. 46 The general exceptions are so expressed because they are applicable to discrimination on any of the grounds in the EO Act. They include: (a) acts done to comply with an order of the Tribunal or a court: s 69; (b) acts that would allow charitable benefits to be conferred on a class of person: s 70; (c) the admission of persons as members of a voluntary body or the provision of benefits, facilities or services to members of the body: s 71; (d) the acts or practices of religious bodies including the ordination or appointment of persons as priests or ministers: s 72; (e) the establishment of educational instructions for religious purposes: s 73; and (f) the provision of housing accommodation for aged persons: s 74. Tribunal may grant an exemption or a further exemption Section 135(1) of the EO Act provides that an application can be 47 made to grant a person an exemption from certain provisions. It provides: (1) The Tribunal may, on application by a person, by order, grant to the person an exemption from the operation of a specified provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC. A 'person' is defined in s 5 of the Interpretation Act 1984 (WA) to 48 include a company. If a person has already been granted an exemption, they can apply 49 for a further exemption under s 135(2) of the EO Act which provides: Page 11 [2026] WASAT 1 (2) The Tribunal may, on application by a person to whom an exemption from a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC has been granted under subsection (1), by order, grant to the person a further exemption from the operation of that provision. As I mentioned above, Linfox has applied for a further exemption 50 under s 135(2) of the EO Act. The 2020 Exemption was granted for a 5-year term from 31 July 2020 with an expiry date of 30 July 2025. In ASC Pty Ltd [2024] WASAT 39, President Pritchard observed, 51 with respect to the further exemption before the Tribunal in that case, at [17]: In his affidavit, the CEO observed that the previous exemption granted to ASC had expired and that the Application may have to be treated as an application for a new exemption. I do not agree. The most recent exemption order expired on 14 March 2024. However, the Application was made on 29 February 2024, at which time the exemption remained in operation. In my view, at the time it brought the Application, ASC was a person to whom an exemption from a provision of the Act had been granted and was therefore entitled to apply under s135(2) for a further exemption. The Application seeking a further exemption in this case was filed 52 by Linfox on 28 July 2025, approximately two days before the 2020 Exemption expired, and so at the time of the Application the 2020 Exemption was still in operation (albeit for a period of two days). Applying President Pritchard's observations, Linfox was therefore entitled to apply for a further exemption under s 135(2) of the EO Act. The proximity between the expiry of the exemption and the making 53 of the Application to the Tribunal explains Linfox's request for an interim exemption. However, s 135 of the EO Act refers to exemptions and further exemptions, and not to interim exemptions. Practically speaking, there are advertising requirements in s 135(3) which must be met before an exemption can be granted, as well as requirements for the Tribunal to publish its decision and reasons for granting an exemption in s 136(1). Those provisions make the grant of an interim exemption impractical because, in deciding to exercise discretion to grant an interim or short-term exemption, the Tribunal would have to go through the same process of consideration as for a 'final' exemption which can be granted for a term of up to 5 years. As such, I advised Linfox that it was not possible to apply for an interim exemption at the first directions hearing. Page 12 [2026] WASAT 1 The Tribunal's decision in an exemption application, or an 54 application for a grant of a further exemption, is one that must be published in the interests of open justice. Section 136(1), which I referred to in the preceding paragraph, provides that no later than one month after it has made a s 135 decision, the Tribunal must publish the decision and its reasons, including its findings of fact material to the decision and a summary of the evidence on which those findings were based. A failure to do so does not, however, affect the validity of the decision: s 136(2) EO Act. Section 137 of the EO Act describes that the effect of exemption 55 orders is that an act that would otherwise be unlawful under the relevant Parts of the EO Act will not be unlawful. It provides: Nothing in Parts II, IIAA, IIA, IIB, III, IV, IVA, IVB and IVC renders it unlawful for a person who has been granted an exemption from a provision of one of those Parts, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the order by which the exemption was granted. The EO Act also provides for the duration and terms upon which an 56 exemption or a further exemption can be granted in s 135(6). It provides: (6) An exemption or further exemption - (a) may be granted subject to such terms and conditions as are specified in the order; and (b) may be varied either on the application of the person to whom the exemption is granted or at the instance of the Tribunal; and (c) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the order; and (d) shall be granted for a period specified in the order not exceeding 5 years. The Scope of the Tribunal's discretion to grant an exemption In ASC Pty Ltd, which concerned an application for a further 57 exemption under s 135(2) of the EO Act, President Pritchard stated, at [18] - [20]: 18 It is unnecessary to decide for present purposes whether any different criteria apply to an application for a further exemption Page 13 [2026] WASAT 1 under s 135(2) of the EO Act, in contrast to an application for a new exemption under s 135(1). On the face of those provisions, there is nothing to suggest that different considerations apply to an application under s 135(2) as opposed to one under s 135(1). 19 I note that in BAE Systems Australia Ltd and Commissioner for Equal Opportunity [[2019] WASAT 79], the Tribunal appeared to adopt the same approach to the application for a further exemption under s 135(2), which was before it, as would have been taken in respect of an application under s 135(1). 20 On the other hand, unless there had been a change in circumstances, or some evidence of a failure by an applicant to comply with the terms and conditions on which a previous exemption had been granted, then it might be assumed that under s 135(2) the Tribunal might more readily, and perhaps in a summary fashion, conclude that a further exemption should be given, for the same reasons as one had previously been given [Cf Thales Australia and Commissioner for Equal Opportunity [[2012] WASAT 222]. (Footnotes included in text.) In summary, as President Pritchard observed, on the face of s 135(1) 58 and s 135(2) of the EO Act, there is nothing to suggest that the criteria for an exemption and a further exemption are different. That conclusion is further supported by s 135(6) of the EO Act, 59 which concerns the discretion of the Tribunal to grant an exemption subject to terms and conditions, amongst other things. That subsection refers to both an exemption and a further exemption which, as I observed in BAE Systems, is indicative that similar considerations are likely to apply to both types of applications. As President Pritchard also observed, the Tribunal may be more 60 willing to grant a further exemption if an exemption was previously granted and if there have been no changes in circumstances and/or no failure to comply with the terms and conditions of a previous exemption. As I also observed in BAE Systems, the grant of a further exemption 61 is not automatic or guaranteed. Section 135 of the EO Act gives the Tribunal a broad discretion to consider whether to grant an exemption or a further exemption, and so the Tribunal must actively turn its mind to whether that discretion should be exercised. This requires a consideration of any criteria relevant to the application in question, whether an applicant has complied with the terms and conditions of a previous exemption and whether there has been a change in circumstances by which the exemption is no longer needed. Page 14 [2026] WASAT 1 I have previously outlined the legal principles relevant to the grant 62 of a further exemption in cases including BAE Systems, however I have repeated them here for clarity. In ADI, Martin CJ, with whom Wheeler JA and Pullin JA agreed, 63 outlined the 'clear and uncontroversial' general legal principles governing the scope of the Tribunal's discretion to grant an exemption. Firstly, a discretion that affects the rights of persons will not be 64 construed by the courts as 'absolute and unfettered' unless Parliament has used plain words to express that intent (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (FAI) at 368, per Mason J cited in ADI at [44]). Thus, although the scope of the Tribunal's discretion in s 135 of the EO Act is broad, it is nevertheless constrained. Secondly, the scope of the Tribunal's discretion is constrained by 65 the policy objectives, and the objects, scope and purpose of the EO Act (FAI at 368, per Mason J Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 at 1030; and Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 at [58] cited in ADI at [44] - [46]; ADI at [47] - [48] per Martin CJ). In other words, 'it was the intention of the Parliament to confer upon the Tribunal a discretion which was constrained only by the objects, scope and purpose of the Act read as a whole' (ADI, at [44] - [47] per Martin CJ). The 'objects, scope and purpose' of the EO Act and the discretion of 66 the Tribunal is 'to be ascertained from a construction of the Act as a whole' (ADI, at [55]). As Martin CJ explained in ADI at [56], the EO Act is structured to prohibit certain types of discriminatory conduct by reference to specific grounds, and although there is significant overlap, the ambit of the conduct prohibited under different grounds is not identical. For example, the ambit of prohibitions on conduct that might be discriminatory on the ground of sex is not identical to the ambit of conduct prohibited because it is discriminatory on the ground of race. Martin CJ explained, at [58] - [59]: 58 So, in summary, there are a range of prohibitions specified by reference to the ground of discrimination, qualified by exceptions which are specifically referrable only to discrimination on that particular ground. There are also general exceptions which apply irrespective of the ground of discrimination. If none of the specific or general exceptions apply, the Tribunal is given a general power of exemption, unconstrained by anything other than the objects, scope and purpose of the Act and the temporal limitation upon the operation of the exemption. Page 15 [2026] WASAT 1 59 In this context, the legislative object to be served by the conferral of a general power of exemption upon the Tribunal is, I think, clear. The Act does not prohibit all discriminatory conduct. Rather, the ambit of the conduct prohibited depends upon the ground of discrimination. Nor does the Act prohibit all conduct of a particular kind because it is discriminatory on a particular ground. Rather, the Act provides both specific and general exceptions to its prohibitions. The legislature has thereby recognised that in a number of circumstances, which it has identified both specifically by reference to the particular ground upon which the discrimination is practiced, and generally, discriminatory conduct can be justified and should not be prohibited. And against the likely contingency that the Parliament has not been able to anticipate all the circumstances in which discriminatory conduct might nevertheless be justifiable, it has empowered the Tribunal to grant exemptions in particular cases. In summary, it is necessary to identify the scope of the conduct that 67 is prohibited concerning the specific ground for which the exemption (or further exemption) is sought. I have endeavoured to do this by outlining the provisions for which the further exemption has been sought, namely s 37, s 39 and s 49, as well as the exceptions in s 50, s 51 and s 52 of the EO Act. Thirdly, the Tribunal will need to undertake a balancing exercise 68 when considering whether to grant an exemption or a further exemption. With reference to the decision of Morris J, sitting as the President of the Victorian Civil & Administrative Tribunal in Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 (Boeing) in ADI, at [74], Martin CJ described the balancing exercise as 'a process whereby the Tribunal weighs the advantages, both public and private which would flow from the grant of exemption, against the detriment which flows from the discriminatory conduct'. Fourth, the Tribunal is at risk of error if it constrains its discretion 69 'by reference to limited and particular questions, which are to be applied to every case' because to do so exposes the Tribunal to the 'risk of excluding from consideration matters which are relevant to the exercise of the discretion because they fall within the objects, scope and purpose of the Act, but not within the … questions enunciated by the Tribunal' (ADI at [49] - [54]). With that caveat in mind, I observe that in ASC Pty Ltd President 70 Pritchard summarised some of the considerations that the Tribunal had Page 16 [2026] WASAT 1 applied in similar cases where the applicants were subject to similar US import and export control laws and regulations as Linfox. In ASC Pty Ltd, President Pritchard observed, at [29] - [30]: 71 29 In the exercise of a similar discretion under equal opportunity legislation applicable in other jurisdictions, a variety of considerations may be taken into account, in determining whether an exemption should be granted. These illustrate the variety of considerations which the Tribunal may take into account, in weighing up whether to grant an exemption under s 135 of the EO Act. Those considerations have included: • whether the exemption sought is necessary; • whether the proposed exemption is reasonable and necessary having regard to the reasons for which it is sought; • whether there are non-discriminatory ways of achieving the purposes for which the exemption is sought; • whether the proponent of the proposed exemption has taken reasonable steps, or is able to take any reasonable steps, to avoid or reduce the adverse effect of a particular act or action before seeking the exemption; • the public and private impacts of the grant of the proposed exemption; • whether the exemption is in the community interest; and • whether any other persons or bodies other than the applicants support the application. 30 In a case where an applicant seeks a further exemption, after having been granted an exemption on an earlier occasion, other factors may be relevant, such as: • whether the applicant for the exemption has complied with any terms and conditions on which the earlier exemption was granted; and • whether there has been any change in the circumstances which now apply, as compared with those which applied at the time of the earlier exemption and in which the grant of the earlier exemption was considered warranted. (Footnote omitted) Page 17 [2026] WASAT 1 I am satisfied that the considerations identified by Pritchard J in 72 ASC Pty Ltd are relevant for me to consider with respect to the Application. Overview of relevant defence-related laws Pursuant to its contractual obligations and due to the nature of its 73 defence-related work, Linfox is subject to certain United States laws, as well as Australian defence-related legislation. With respect to the United States, the ITAR was made under s 2778 74 of the AEC Act. The ITAR regulates the export and import of United States origin 75 defence material, services or technical data on the United States Munitions List (ITAR-Controlled Materials). The ITAR prevents the export or import of ITAR-Controlled Materials to certain 'proscribed countries' that are considered to pose a threat to United States national interests: s 120.1(a) and 126.1(a) of the ITAR. Pursuant to s 127.1(a) of the ITAR, before ITAR-Controlled 76 Materials can be transferred from the United States Government or a United States person to a non-United States person, the parties must enter into an agreement, or a 'licence' to allow the transfer to proceed. Making a transfer outside of this process is a breach of the ITAR and the AEC Act. The maximum penalty for such a breach is $1,217,078 USD and/or 77 imprisonment for up to 20 years: s 2778(c) AEC Act. In addition, such breaches could result in a person being banned from dealing with ITAR-Controlled Materials: s 127.7 ITAR and 2778(g)(4) AEC Act. Before the Commonwealth can release ITAR-Controlled Materials 78 (for example, to a contractor such as Linfox), it must seek a 'Third Party Re-Transfer Authorisation' (TPR) from the United States Department of State: s 123.9(a) of the ITAR. In addition to ITAR, an 'Australian Community Member' must 79 comply with requirements in the DTC Act and the DTC Regulations. It is an offence under s 31(3) and (4) of the DTC Act to supply 80 defence goods or technology related to goods listed in the Defence Trade Cooperation Munitions List to any person who is not an Australian Community Member or a member of the United States Community. Page 18 [2026] WASAT 1 A breach of these sections may result in significant penalties including imprisonment for 10 years and fines of up to $825,000. Regulation 5 of the DTC Regulations provides that to be an 81 Australian Community Member, the person must be an Australian citizen, unless that citizenship requirement has been waived by the Commonwealth and United States Governments. They must also have a current Australian security clearance. A waiver of the citizenship requirement will only be granted in 82 exceptional circumstances, for example, where an activity requires specialised skills or expertise and which no, or limited, Australian citizens possess similar capability. Additionally, the individual must not hold dual- or third-party nationality of a prescribed country listed in s 126.1 of the ITAR: s 2.2.4 of the Department of Defence Australian Community Manual. Factual findings I make the following factual findings based on the materials before 83 me, and particularly the First Pereira Affidavit, the Collett Affidavit and the Davey Affidavit. Linfox is an Australian privately owned logistics business with 84 operations across the Asia Pacific region. Linfox is divided into business units that provide specialised supply 85 chain solutions. One of these business units is 'Government and Defence' which provides warehousing, disposal, distribution, information technology, logistics, and supply chain solutions and services to the ADF. The Government and Defence business unit of Linfox employs 86 609 people in Australia, including 46 staff in Western Australia. Those figures do not include project staff who include drivers, 87 information technology and other support staff who are not attached specifically to the Government and Defence business unit. There are 30 of these staff engaged nationally. Of the 609 employees, approximately 280 of the employees require 88 a security clearance of Negative Vetting 1 or higher. There are very few roles in the Government and Defence business 89 unit that do not require a security clearance. Those without a security Page 19 [2026] WASAT 1 clearance must sign in and sign out, and be escorted at all times, by someone with a security clearance. Linfox signed a contract with the Commonwealth of Australia 90 (Commonwealth) on 19 December 2013 (Contract). Under the Contract, Linfox provides services to the ADF including 91 warehousing, disposal, distribution, information technology, logistics and supply chain solutions and services to the ADF. Linfox's contractual obligations to the Commonwealth do not 92 require Linfox to discriminate based on country of origin but the employee or prospective employee must be an Australian Citizen. The Contract has been extended several times. The current expiry 93 date is 1 April 2026. It is not expected that the Contract will continue past this date. The base value of the Contract in Western Australia is 94 approximately $6,700,000 per annum. The work undertaken by Linfox in Western Australia is undertaken 95 at certain facilities owned by the Department of Defence. The work is specific to those locations and cannot be relocated to any other state in which Linfox operates. Linfox sometimes tenders for other contracts to provide some of the 96 same services they provide under the Contract (Other Contracts) to the ADF. For example, Linfox is 'close to signing' a contract with another ADF contractor whereby they would be a sub-contracted to the ADF to provide warehousing and distribution services. They are also the preferred tenderer for another contract to provide transport services. There is no evidence before the Tribunal of any current Other Contracts. Under the Contract and Other Contracts that Linfox tenders for from 97 time to time, the services provided by Linfox to the ADF include warehousing, disposal, distribution, information technology, logistics, and supply chain solutions and services. Under the Contract, Linfox and its personnel are required to handle 98 a wide range of material, data, information and technology used by the ADF and/ or owned by the Commonwealth (Defence Material). These include ITAR-Controlled Materials obtained by the Commonwealth through the United States' foreign military sales program. Page 20 [2026] WASAT 1 Under the Contract Linfox and its personnel must comply with the 99 Conditions of Contract including terms that require Linfox to comply with defence requirements and laws; the laws of the United States including the AEC Act, the ITAR; and the requirements of any licence or authorisation applying to Linfox and made under those laws. The Conditions of Contract also include provisions to the effect that 100 Linfox must ensure all personnel performing services under the Contract hold, at minimum, baseline security clearances. They also require Linfox to refuse access to information and sites to personnel without the appropriate security clearances and to withhold security classified information or official information provided under the Contract to a third party, including a representative of another country. The Conditions of Contract also include terms that require Linfox 101 to maintain membership of the Defence Industry Security Program (DISP). They also require Linfox to ensure that its contractors obtain and 102 maintain membership, and to comply with the Commonwealth's Defence Security Principles Framework (DSPF). The Commonwealth is permitted to terminate the Contract if Linfox 103 fails to maintain its membership of the DISP: clause 28.4.2 of the Contract. To maintain DISP membership, Linfox must comply with the DSPF 104 which sets out the principles, policy, process and guidance to be adopted by the ADF in making security decisions, which may be extended by contract to apply to a contractor. To maintain DISP membership, Linfox must also comply with the 105 Defence Security Manual (DSM). The DSM sets out the security policy, processes and technical standards to be adopted for Australia's defence. It requires Linfox to ensure that all persons accessing Defence Materials have the appropriate security clearance. Linfox must also comply with Australian Government and Defence 106 security legislation and policies, including achieving and maintaining the standards required by the DSPF: DSPF Control 16.1, para 34(a). As a DISP member, under the DSPF Linfox must ensure that 107 unauthorised access to official or classified information or materials does not occur: DSPF Control 10.1, paras 8, 14; Control 16.1, para 61(e). Page 21 [2026] WASAT 1 The Other Contracts which Linfox tenders for from time to time 108 contain terms that are the same or substantially similar to the security clearance and related requirements in the Contract and Conditions of Contract. Linfox was granted a Third-Party Re-transfer authorisation 109 (TPR authorisation) on 20 June 2014, which was amended on 24 June 2014, under which the Commonwealth was permitted to release ITAR-Controlled Materials obtained by the Commonwealth through the United States foreign military sales program (FMS-Acquired Material) to Linfox. The TPR authorisation provides that only Linfox employees who 110 are Australian citizens and have security clearances may access the unclassified FMS-Acquired Material covered by the TPR authorisation. Linfox was also granted membership of the 'Australian 111 Community', pursuant to the DTC Act on 18 August 2014, and therefore must comply with the requirements set out in the DTC Act and the DTC Regulations. The Contract and Conditions of Contract also include terms that 112 require Linfox to comply with the DTC Act and the DTC Regulations. Should the Further Exemption be granted? Is the Further Exemption necessary and is it reasonable having regard to the reasons for which it is sought? I have combined the first two considerations stated by President 113 Pritchard in ASC Pty Ltd, because they overlap and are interrelated. The Further Exemption is necessary so that Linfox can comply with 114 its various legal obligations under Contract, Other Contracts that it tenders for from time to time, the ITAR and AEC Act including the requirements of Linfox's TPR authorisation, the DTC Act and DTC Regulations and the DSPF. Under the Contract, and it is anticipated under any Other Contract, 115 Linfox and its personnel are required to handle material, data and technology that are Defence Materials and therefore must comply with security requirements arising under the Contract and Conditions of Contract, DTC Act and DTC Regulations, the ITAR, membership of the DISP and the DSM. Page 22 [2026] WASAT 1 To comply with these obligations, Linfox needs to be able to 116 undertake the Proposed Exempted Activities that would otherwise constitute discrimination on the grounds of race. More specifically, these include requesting information about 117 citizenship and retaining a register of information about citizenship from current and potential members of their workforce to ensure that only Australian Citizens with the requisite security clearances have access to Defence Materials. Linfox may need to refuse access to Defence Materials to persons in their workforce based on citizenship, or to restrict access to those without the appropriate clearances and to report any unauthorised disclosure or breach. This may involve restricting access to areas of its facilities, rejecting applications for positions based on citizenship, transferring members of the workforce to another part of Linfox's business or as a last resort, terminating a person's employment on the basis that it is not reasonable to transfer or redeploy them. Without an exemption, if Linfox engages in these Proposed 118 Exempted Activities, they will contravene s 37, s 39 and s 49 the EO Act. Conversely, if Linfox was not able to undertake these Proposed 119 Exempted Activities, they are likely to be in breach of their contractual and legal obligations which could lead to termination of the Contract, as well as attracting the significant penalties prescribed by the ITAR. A breach of those legal requirements would also constitute a breach of the DISP and the DSM which could result in Linfox losing membership to the DISP. This would also permit the Commonwealth to terminate the Contract. Further, to comply with the terms of Linfox's current TPR 120 authorisation, Linfox may only release unclassified FMS-Acquired Material covered by the authorisation to a person if they are an employee who is an Australian citizen and who holds an Australian security clearance. If Linfox were to release ITAR-Controlled Material to a person who does not meet these criteria, it may be subject to the significant penalties under the ITAR described above. If the exemption is not granted, it would not be possible for Linfox 121 to relocate work from Western Australia to other Australian states and territories that have equivalent exemptions in place because the work is undertaken at facilities owned by the Department of Defence. I agree that granting a further exemption under s 135(2) of the 122 EO Act is the only means by which Linfox can continue to fulfil its Page 23 [2026] WASAT 1 contractual obligations and comply with the ITAR and the DTC Act and Regulations without engaging in prohibited discrimination. This consideration weighs in favour of the Further Exemption being 123 appropriate and reasonable considering the reasons for which it is necessary. I observe that other considerations (discussed below), including 124 whether there are any non-discriminatory ways of achieving the purposes for which the Further Exemption is sought, and the terms and conditions of the Further Exemption, are also relevant to the question of whether it is appropriate and reasonable considering the reasons for which it is necessary. Are there non-discriminatory ways of achieving the purposes for which the Further Exemption is sought? If Linfox does not request and retain information based on 125 citizenship to ensure there is no unauthorised access to Defence Materials by its employees, Linfox would fail to comply with its contractual and legal obligations, including with the DTC Act and Regulations, as well as the ITAR. This may result in substantial penalties, as well as the termination of the Contract and possibly Other Contracts that may be on foot. Further, there are no specific or general exceptions in the EO Act 126 that would assist Linfox, other than a further exemption being granted under s 135. For example, s 52 of the EO Act, which provides a specific 127 exception for citizenship, applies to an act performed pursuant to a Western Australian law (my emphasis). Consequently, Linfox cannot rely on s 52 with respect to the performance of its contractual obligations with the Commonwealth, or the performance of its obligations under the laws of the United States including the ITAR or laws of the Commonwealth, because s 52 specifically refers to an act performed pursuant to a Western Australian law. It is also unlikely that Linfox could successfully apply for a waiver 128 with respect to the DTC Act and DTC Regulations. Specifically, Linfox's personnel must be Australian Community Members which requires them to be Australian Citizens unless that requirement is waived by the United States and Australian Governments. As set out above, a waiver will only Page 24 [2026] WASAT 1 be granted in exceptional circumstances, such as where no Australian Citizen has the skills or expertise for the role. The First Pereira Affidavit states the belief that Linfox does not 129 currently have any roles under the Contract that require skills or expertise that are not able to be supplied by an Australian citizen, and that consequently, Linfox is not able to seek a waiver. However, even if a waiver could be obtained, Linfox would still be 130 subject to equivalent obligations under its current TPR authorisation and the ITAR and so a waiver will not remove the need for an exemption. In summary, the purpose of the Further Exemption is not able to be 131 achieved through non-discriminatory ways, such as applying for a waiver or relying on a specific or general exception in the EO Act. This weighs in favour of the grant of the Further Exemption. Is the Further Exemption in the public interest? The Further Exemption is in the national interest, and therefore the 132 public interest, because the work that Linfox is undertaking is relevant to Australia's defence capabilities. With respect to ITAR-Controlled Material, I accept that it is also 133 beneficial to Australia's defence capabilities to have access to United States military goods and technology. There is also a benefit to the Commonwealth in ensuring its contractors comply with security measures necessary to protect national security. Further, Linfox employs 46 staff in the Government and Defence 134 unit of its Western Australian workforce, and the base value of the Contract in Western Australia is approximately $6,700,000 per annum. I am satisfied that this economic contribution to the Western Australian economy and the employment of members of the Western Australian community is in the public interest. The public interest is also served by consistency and predictability 135 in the granting of exemptions in similar circumstances, including for other companies involved in defence contracting, and who are subject to the laws of the United States including the ITAR. The further exemption granted in in BAE Systems contains similar terms to the Further Exemption. However, the Further Exemption is narrower in scope than the BAE Systems exemption which extends beyond citizenship to include, amongst other things, country of birth. Nevertheless, the Page 25 [2026] WASAT 1 narrower scope of the Further Exemption is a factor that favours the Further Exemption being granted to Linfox. Exemptions were previously granted to Linfox in New South Wales 136 and Victoria, but those exemptions have now expired. The Tribunal was not provided with any information about current exemptions or further exemptions in place in other Australian states. On balance, I find that the public interest favours the grant of the 137 Further Exemption. The public and private impacts of the grant of the proposed Further Exemption The public and private advantages which would flow from the grant 138 of the Further Exemption must be balanced against the detriment which flows from the discriminatory conduct (Boeing, ADI). Again, there is some overlap between this, and other considerations 139 including the public interest consideration, and whether the Further Exemption is reasonable or necessary. The grant of the Further Exemption will enable the Government and 140 Defence business unit of Linfox to continue to operate in Western Australia without breaching the EO Act. The impact of the exemption not being granted is that Linfox will 141 need to make a problematic choice. To avoid contravening their terms of Contract, the ITAR, the TPR authorisation, and the DTC Act and Regulations, Linfox will need to contravene the EO Act by requesting and retaining information about citizenship, and making decisions about employment based on that information. If they do not do so, Linfox faces the risk of significant financial penalties for breaches, as well as potentially the termination of the Contract and possibly any Other Contracts that are on foot, if they are unable to ascertain the citizenship of persons having access to Defence Materials. This may in turn, not only have a detrimental economic impact on the business of Linfox in Western Australia, but also the security of employment of the Western Australian employees in the Government and Defence business unit of Linfox. Being asked to provide information about citizenship is likely to 142 cause little, if any detriment to individual employees and contractors. However, the use of that information to exclude people who are not Page 26 [2026] WASAT 1 Australian citizens from particular roles, or from being employed in the first place, may have serious consequences for an individual, including financial and/or emotional consequences. This has the potential to create two classes of employment whereby those who are not Australian citizens may be treated differently to others: see Cobham, at [97]. The Collett Affidavit identifies that the main impact of an 143 exemption (in this instance, the Further Exemption) is that during the period of the exemption Linfox may receive applications from prospective employees who are not Australian citizens who would not be engaged to perform services under the Contract. However, those persons would be unlikely to obtain a security clearance which requires a person to be an Australian citizen unless there are exceptional circumstances (such as where no Australian citizen has the skills or expertise for the role). Linfox does not currently have any roles under the Contract that require skills or expertise that could not be supplied by an Australian citizen. Thus, the outcome is the same regardless of whether the individual is initially refused work under the Further Exemption or because of failing to obtain a security clearance. On balance, I am satisfied, and I find, that any detriment to 144 individuals in being asked about their citizenship or excluded from certain work, is outweighed by the public and private advantages of granting the Further Exemption. These include public interest considerations such as Australia's national security and access to Defence Materials from the United States and Western Australian economic interests including the interests of the Linfox's current employees. As I also outline below, the conditions to the Further Exemption 145 will also assist in limiting the possibility of detriment to individuals, including the creation of a separate class of employees or contractors. Whether Linfox has and will continue to take any reasonable steps to avoid or reduce the adverse effect of the discriminatory acts The Collett Affidavit states that Linfox is committed to promoting 146 the objects of the EO Act. Linfox has implemented a Workplace Behaviour and Diversity 147 Policy and requires all employees undergo training on equal opportunity at an induction. There is follow up training every 12 months. Linfox adapts the training depending on the team, including through online modules and through operational training at toolbox meetings. Linfox Page 27 [2026] WASAT 1 has also adapted the training for staff with lower levels of literacy. Linfox also ensures that staff are up to date with their training by keeping a register of the completion of training by staff. The Davey Affidavit confirms that, at the time the 2020 Exemption 148 was granted, there were limited opportunities to re-deploy personnel from the Government and Defence business unit who were unable to obtain a security clearance due to their citizenship to other business units. This meant that there was a possibility that a person's employment may need to be terminated if their position required access to Defence Materials and they were not an Australian Citizen. However, the First Pereira Affidavit confirms that Linfox now has 149 other government contracts that are not defence-related and, although limited, there is the potential to redeploy an employee within the Government and Defence business unit, rather than to redeploy them to another business unit. It confirms that if Linfox is granted the Further Exemption, Linfox will take steps to ensure that redeployment within the Government and Defence business unit occurs as a first option where it is available. These developments will assist in reducing the adverse impact of the Further Exemption on individuals because there is now a likelihood that if re-deployment is necessary, the individual will be redeployed in the same business unit, or if that is not possible, in another business unit, rather than having their employment terminated. Additionally, the conditions to the Further Exemption will also 150 assist in reducing the effect of any discriminatory acts by further limiting the scope of the exemption. These conditions are discussed below. Overall, this consideration weighs in favour of the grant of the 151 Further Exemption. Whether any other persons or bodies other than Linfox support the Application In the Commissioner's affidavit filed on 4 August 2025, 152 the Commissioner stated his view that 'the application is not intended to further the objects of the Act'. The Commissioner further stated that he did not wish to remain as 153 a party to the proceeding and stated that he would leave it to the Tribunal to determine whether the Further Exemption is necessary and should be granted. Page 28 [2026] WASAT 1 As I outlined above, the Tribunal did not receive any submissions 154 from persons other than Linfox in support of, or in opposition to, the Application for the Further Exemption. Nor did Linfox. The lack of any objection being received, lends some weight to the 155 Further Exemption being granted. Whether Linfox complied with any terms and conditions on which the 2020 Exemption was granted The 2020 Exemption included an annual reporting requirement to 156 the Commissioner. Linfox has submitted copies of its annual reports to the 157 Commissioner for the first four years of the 2020 Exemption. I am therefore satisfied that Linfox complied with the reporting requirements to the Commissioner. Further, those reports show that Linfox did not reject any 158 applications from prospective employees to join its workforce despite 64 vacancies being advertised or offered. They state that no employees were redeployed or retrenched, and that no complaints were made by applicants for employment or members of the workforce affected by the 2020 Exemption. This information suggests that the Further Exemption was responsibly managed by Linfox to limit its impact on individuals. There is no evidence to suggest that Linfox did not comply with any 159 of the other conditions to the 2020 Exemption. Linfox's compliance with the 2020 Exemption, including its 160 compliance with the reporting requirements to the Commissioner which show the limited impact of the 2020 Exemption on individuals, lends weight to the Further Exemption being granted. Any change in the circumstances compared with those which applied at the time of the earlier exemption Linfox has made the Application for the Further Exemption on the 161 basis that the Contract, and any Other Contract they may enter into, will require an exemption to be granted. One change in circumstances since the 2020 Exemption was 162 granted is that although the Contract is still on foot, Linfox does not expect the Contract will continue after 1 April 2026. They do, however, expect that some of the services performed under the Contract will Page 29 [2026] WASAT 1 continue under any Other Contract they tender for from time to time, which contain the same or similar terms and security requirements. Although Linfox anticipates it is close to signing an Other Contract, there is no evidence of any Other Contracts currently being on foot. These factors are relevant to the term of the Further Exemption which I discuss below. As I mentioned above, the 2020 Exemption expired on 30 July 163 2025, and so there has been a period of some months when no exemption has been in place. Linfox only applied to the Tribunal for the Further Exemption two days before the expiry date, and sought an interim exemption until the Tribunal was able to consider the Further Exemption. As I outlined above, the EO Act does not contemplate an interim 164 exemption and only provides for a final exemption to be granted. This ensures that all exemptions and further exemptions are properly considered, and as such, it is the responsibility of applicants to bring their application to the Tribunal in a timely manner. I do not have any information as to how Linfox is managing its 165 operations in this interim period, but they will need to have done so in such a manner as to avoid contravening the EO Act. Overall, I am satisfied that the circumstances continue to require 166 the grant of a Further Exemption, however, a question remains as to the appropriate length of the term. Balancing the considerations In summary, the Further Exemption is necessary for Linfox to 167 comply with its contractual obligations under the Contract and Linfox's associated obligations under the ITAR, the DTC Act and the DTC Regulations. Should Linfox secure any Other Contract, Linfox is also likely to require the Further Exemption. The Further Exemption is also reasonable and necessary because it 168 has only been sought to the extent necessary (with respect to citizenship) and there are no specific or general exceptions that Linfox could rely upon instead of seeking it. There are no viable non-discriminatory ways of achieving the 169 purposes of the Further Exemption. Page 30 [2026] WASAT 1 The Further Exemption is in the public interest, and on balance, any 170 public or private detriment, is outweighed by the advantages of granting it. Through the imposition of conditions (discussed in further detail 171 below), Linfox has proposed reasonable steps to minimise the detrimental impact of the Further Exemption on members and potential members of its workforce, and to protect the privacy of the information collected. The Further Exemption is also narrower in scope than other 172 exemptions and further exemptions granted by this Tribunal because it is limited to citizenship, and not to country of birth or prior citizenship. The Commissioner offered no view as to whether the Further 173 Exemption should be granted and left it to the Tribunal to satisfy itself as to whether the Further Exemption should be granted. No submissions or objections from third parties concerning whether the Further Exemption should be granted were received by Linfox or the Tribunal. Overall, I am satisfied, and I find that these considerations support 174 the grant of the Further Exemption. Should the Further Exemption be subject to conditions or limitations? As mentioned above, the Further Exemption is limited to Linfox 175 being able to request, record and make decisions based on citizenship only. It does not extend to country of origin or past citizenship. This means that the activities covered by the Further Exemption are only with respect to citizenship and do not extend to allow Linfox to discriminate against persons born in another country, and/or with prior citizenship of another country. That scope is in accordance with Linfox's contractual and legal obligations to the Commonwealth. This limitation makes the Further Exemption is narrower in scope than other exemptions, for example, the further exemption in BAE Systems, that have been granted by this Tribunal which extend to those areas. By way of summary, the conditions to the Further Exemption 176 include that prior to undertaking any action permitted by the Further Exemption, Linfox will provide all employees or prospective members of the workforce with express notice in plain English that they may be adversely affected by the exemption if they are not an Australian citizen or hold dual citizenship, and information about how they can apply for Australian Citizenship: paragraph 2(a). Providing persons with Page 31 [2026] WASAT 1 information about applying for Australian Citizenship would mean that they would not be adversely impacted if they choose to obtain Australian Citizenship. Paragraph 2(b) comprehensively sets out the steps Linfox will take 177 with a specific emphasis on the prevention of discrimination based on race. These include to maintain comprehensive anti-discrimination policies, establish dispute resolution and grievance procedures to investigate and resolve discrimination complaints and grievances, to implement training programs to ensure all members of the workforce receive regular education and training in issues of discrimination, and to take steps to fully inform the workforce of their rights under the EO Act. Awareness of the exemption and its conditions in the Applicants' employment policies will also help to ensure compliance with the exemption and the effectiveness of the conditions. A further requirement is that Linfox will notify the Tribunal if 178 the discriminatory aspects of the relevant security requirements under the Conditions of Contract, TPR authorisation, ITAR and other agreements and licences are substantially amended or repealed to the extent that the exemption may be revoked or amended: paragraph 2(b)(vi). Paragraphs 2(c) and 2(d) seek to limit the impact of the Further 179 Exemption on current members of the workforce. Paragraph 2(c) requires Linfox to take reasonable steps to ensure employees adversely affected do not suffer a reduction in wages, salary or opportunity for advancement. Paragraph 2(d) provides that if Linfox relocates a member of the workforce, they will take reasonable steps to explain the reason for the transfer to the person, to avoid disclosing the reason for the transfer to other staff who do not need to know the reason to perform their duties. Paragraph 2(e) seeks to limit the impact of the Further Exemption 180 on prospective employees who would otherwise been acceptable for employment with Linfox. If feasible to do so, Linfox will consider and implement alternatives to rejection such as employment in other work for Linfox or obtaining approvals under the security requirements. These conditions will assist to minimise the impact of the 181 exemption on Linfox's employees and prospective employees. The Further Exemption also seeks to protect the privacy of 182 individuals. For example, security badges will be coded so as not to identify citizenship or the reasons for a person's access: paragraph 1(d). Page 32 [2026] WASAT 1 Access to information about citizenship is also restricted to limited persons on a 'need-to-know' basis: paragraph 1(c). The Further Exemption also includes a condition (paragraph 2(f)) 183 which requires Linfox to annually report to the Commissioner for the duration of the Further Exemption, including with respect to the steps taken to implement the conditions of the Further Exemption including education and training; details of the number of applicants employed under the exemption; whether any employees were transferred to other roles; whether any employees were redeployed or retrenched; and the number of employment vacancies advertised or offered under the Further Exemption. This condition will assist in ensuring monitoring, accountability and compliance and will provide independent oversight and promote public confidence in the EO Act, including the grant of exemptions and further exemptions. Paragraph 2(g) also requires Linfox to undertake this reporting in 184 its annual reporting cycle and risk management program. This condition will also assist to ensure monitoring, accountability and compliance. I am satisfied that these conditions are reasonable and will assist to 185 limit the operation of the Further Exemption to the extent that it is necessary, as well as assisting to mitigate any adverse impacts of the Further Exemption. Term of the Further Exemption As I have outlined above, the Contract is not expected to continue 186 beyond 1 April 2026, but Linfox expects some of the services provided under that Contract will continue under Other Contracts which Linfox tenders for from 'time to time'. It is on that basis that Linfox has applied for the Further Exemption for the maximum period of 5 years. Although a 5-year term is likely to be commercially expedient to 187 Linfox and may provide them with some certainty when they tender for Other Contracts, there is minimal to no evidence as to the number, existence and terms of any Other Contracts. Whilst the First Pereira Affidavit states that Linfox is close to 188 signing an Other Contract with another ADF contractor whereby they would be sub-contracted to the ADF to provide warehousing and distribution services, there is no information before the Tribunal as to the likely duration of that contract. Further, although Linfox is 'close to signing' the contract, it is not confirmed as to whether that Other Contract Page 33 [2026] WASAT 1 has been, or will be, signed and the likely timeframe. That potentially leaves Linfox with a single Contract that does not extend past 1 April 2026 and the possibility of tendering for Other Contracts from time to time as those opportunities arise. Although the term of any Further Exemption is counter-balanced by 189 the condition requiring Linfox to report annually to the Commissioner who will be able to monitor any changes in circumstances which may mean that the exemption is no longer necessary, and the condition that Linfox will advise the Tribunal of any change in circumstances which result in the Further Exemption no longer being required, overall, I am not satisfied that there is sufficient evidence to justify the Further Exemption being granted for a 5-year term. Taking these factors into account, I am of the view that a 3-year 190 term would be appropriate in the circumstances. Should the Further Exemption be required beyond that term, another application can be made to the Tribunal which includes updated information relevant to the length of the term sought. Conclusion Having considered the objects, scope, and purpose of the EO Act, 191 and after weighing the considerations that are relevant to the grant of the Further Exemption, I am satisfied that a further exemption with conditions for a term of 3 years is appropriate and warranted in the circumstances. I will therefore exercise discretion to grant the Further Exemption 192 sought by Linfox for a term of 3 years. Orders I make the orders set out in Annexure A. 193 Page 34 [2026] WASAT 1 Annexure A The Tribunal orders: 1. Pursuant to section 135(2) of the Equal Opportunity Act 1984 (WA) (EO Act), Linfox is granted an exemption from compliance with the provisions of sections 37, 39 and 49 of the EO Act for a period of three (3) years insofar as those sections relate to the 'race' (as defined in section 4 of the EO Act) of applicants for employment, employees and contract workers to the extent that they may: (a) Require members or potential members of the Workforce to declare their exact citizenship and provide details of their citizenship (including any changes to their citizenship) in order to enable Linfox to determine whether they are permitted under the Security Requirements to participate in the provision of the Services or to have access to Defence Materials; (b) Disclose information about the citizenship of members of the Workforce to: (i) the United States Department of State; (ii) the Australian Department of Defence; or (iii) any other organisation or government department for which or on whose behalf or at whose request Linfox undertakes work in respect of which Linfox has (directly or indirectly) an obligation not to transfer Defence Materials on the basis of citizenship; (c) Record and maintain a register (Register) of those members of the Workforce that are permitted to access Defence Materials or any facilities owned or controlled by the Australian Defence Force, the United States Government (including any military departments), or Linfox or another contractor of the Australian Defence Force or the United States Government (including any military departments), or to be involved in the provision of the Services due to citizenship. Access to the Register and any information relating to the citizenship of Page 35 [2026] WASAT 1 members or potential members of the Workforce shall be restricted to human resources officers, information technology staff and security personnel or their properly appointed nominees on a 'need-to-know' basis; (d) Require members of the Workforce to wear a pass or badge confirming their right to access Defence Materials or their level of access to any Defence Materials or their right or the extent of their right to participate in the provision of the Services. Such passes or badges may be coded but not in such a way as to identify: (i) the citizenship of the person (including dual citizenship), as declared; or (ii) the reasons for that person's level of access; (e) Restrict access to Defence Materials connected with the Services to particular members of the Workforce based on their citizenship; (f) Restrict access to areas of its facilities connected with the provision of the Services to particular members of the Workforce based on their citizenship; (g) Require Linfox's suppliers, contractors, employees, contract workers, agents and consultants to comply with the Security Requirements, and to take all practicable steps to assist Linfox in complying with the Security Requirements; (h) Reject applications from prospective members of the Workforce for positions involving the provision of the Services or requiring access to the Defence Materials, based on the prospective Workforce member's citizenship, and taking into account a person's citizenship in determining who should be offered employment or contract work requiring access to Defence Materials; (i) Transfer members of the Workforce from the provision of the Services to work in other parts of Linfox's business on the basis that, due to their citizenship (including a Page 36 [2026] WASAT 1 change to their citizenship), Linfox may not permit them to participate in the provision of the Services; (j) Terminate the employment or engagement of members of the Workforce on the basis that: (i) due to their citizenship (including a change to their citizenship), Linfox may not permit them to participate in the provision of the Services; and (ii) it is not reasonable in all the circumstances to redeploy or transfer the members of the Workforce to another role within Linfox's business, or within a business operated by one of Linfox's associated entities. (k) Advertise positions with Linfox which involve the provision of the Services or access to the Defence Materials as being open only to Australian citizens who can obtain the necessary security clearances. 2. This exemption applies subject to the following conditions: (a) Linfox will, prior to taking any action permitted by the exemption, provide all employees and prospective members of the Workforce with: (i) express notice that they may be adversely affected by this exemption if they are not an Australian citizen or if they hold dual citizenship; (ii) a reasonable explanation in plain English of the nature of any adverse effects of such action to them; and (iii) information (at the time of recruitment in the case of prospective members of the Workforce) about how they can apply for Australian citizenship. (b) Linfox will: (i) maintain comprehensive anti-discrimination policies governing all aspects of the work and Workforce, including management, and with Page 37 [2026] WASAT 1 particular regard to race discrimination, vilification, harassment and victimisation; (ii) establish concise and comprehensive dispute resolution and grievance procedures to receive, investigate and resolve discrimination complaints and grievances and, in particular, those relating to race discrimination, vilification, harassment and victimisation; (iii) implement training programs, including at induction, to ensure that all members of Linfox's Workforce, including management, are fully informed of their rights and obligations under such policies and procedures, particularly with regard to issues of race discrimination, vilification, harassment and victimisation; (iv) ensure that all members of the Workforce, including management, receive regular education and training in issues of discrimination, particularly race discrimination, vilification, harassment and victimisation; (v) take steps to fully inform the Workforce, including management, of their rights under the EO Act and, in particular (but not limited to) the complaints procedure under that EO Act; (vi) notify the Tribunal if the discriminatory aspects of the relevant Security Requirements are substantially amended, repealed or become inoperative, in whole or in part, so that the exemption may be revoked or amended. (c) Linfox will take all reasonable steps to ensure that any employees adversely affected by the exemption retain employment with Linfox, and do not suffer a reduction in wages, salary or opportunity for advancement. (d) If Linfox, in order to enable it to comply with the Security Requirements, moves a member of the Workforce from one project to another, Linfox must take reasonable steps both to explain to that person why the transfer has Page 38 [2026] WASAT 1 occurred, and to avoid disclosing information about the reasons for the transfer to other staff who become aware of the transfer and do not need to know the reasons in order to perform their duties. (e) Where prospective employees adversely affected by the exemption would otherwise have been acceptable to Linfox as employees, Linfox will consider and, if feasible, implement reasonable and practicable alternatives to rejection, such as employment in other work for Linfox (whether with Linfox or one of its associated entities) or obtaining the necessary approvals under the Security Requirements. (f) Linfox must report in writing to the Commissioner twelve months after the commencement of this exemption, and every twelve months thereafter while the exemption is in force detailing in respect of the period to which the report relates, and in respect of the matters covered by this exemption - (i) the steps taken by Linfox to comply with the EO Act and the terms and conditions of this exemption, including training and education given to its Workforce, compliance audits, and any complaints made under the EO Act; (ii) the number of applications to join its Workforce rejected under the exemption and whether any (and if so, how many) were subsequently appointed to other roles; (iii) the number of members of its Workforce redeployed or retrenched in accordance with the exemption, and any steps taken to minimise harm or loss to those people arising from the redeployment or retrenchment; (iv) the number of Workforce vacancies advertised or offered under the exemption. (g) Linfox must include the reporting requirements set out at paragraph 2(f) in its annual reporting cycle and risk management program. Page 39 [2026] WASAT 1 Definitions In this exemption order: 'Commissioner' means the Commissioner for Equal Opportunity. 'Conditions of Contract' means conditions of the 2013 contract between Linfox and the Commonwealth of Australia for the provision of the Services, including where that contract is extended, amended or replaced. 'Defence Materials' means any materials or information in relation to which access or use is regulated by the Security Requirements. 'Linfox' means Linfox Australia Pty Ltd. 'Security Requirements' means Linfox's security requirements under and pursuant to: (A) Conditions of Contract; (B) Any other contract with the Commonwealth of Australia, Australian Defence Force or United States Government (including any military departments) to which Linfox is, or during the term of the Exemption Order becomes, a direct contractor or subcontractor, and which contain security clearance and related requirements which are the same or substantially similar to the Conditions of Contract. For the avoidance of doubt, any security clearance or related requirement which is not the same or substantially similar to the Conditions of Contract does not fall within this definition of Security Requirements and is therefore not covered by the exemption; (C) Linfox's Third Party Re-Transfer authorisation; (D) US Export Regulations; (E) Manufacturing licence agreements; (F) Technical assistance agreements; (G) Proprietary information agreements; and (H) Export licenses granted by the United States Department of Commence and/or the United States State Department. Page 40 [2026] WASAT 1 'Services' means the warehousing, disposal, distribution, information technology, logistics, and supply chain solutions and services which Linfox has been engaged to provide, either directly as a contractor or indirectly as a subcontractor, to the Commonwealth of Australia, the Australian Defence Force and/or the United States Government (including any military departments), to which the Security Requirements apply. 'Tribunal' means the State Administrative Tribunal. 'US Export Regulations' means the requirements of the International Traffic in Arms Regulations (22 CFR (US) §§120-130) and the Export Administration Regulations (15 CFR (US) §§730-774) or other regulation to similar effect, as amended or replaced from time to time, so far as they apply to Defence Materials used in Linfox's operations. 'Workforce' includes Linfox's employees, contractors and contract workers who are engaged to participate in the provision of the Services in Victoria and/or who have access to Defence Materials. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR M EVANS-BONNER, SENIOR MEMBER 2 JANUARY 2026 Page 41