ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WANG v AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2015] ACAT 5

DT 7 of 2014

Catchwords: DISCRIMINATION – employment – education – race – age – international medical graduate – requirement for period of internship – application for internship and resident medical officer position at Canberra Hospital – adoption of policy to guide allocation of internships – policy establishes priority categories dependent on geographic location of university from which medical qualification obtained – automatic allocation of internationally trained graduates to category 8 – no prospect of category 8 graduate being allocated an internship – policy discriminates on the basis of a characteristic international medical graduates generally have, namely their nationality – finding of unlawful discrimination on basis of race – distinction between ACT and Commonwealth legislation – automatic allocation of international medical graduates to category 8 likely to disadvantage them – finding of indirect discrimination on basis of race – rejection of application for resident medical officer position not directly or indirectly discriminatory – no discrimination on basis of age

Legislation cited: Commonwealth of Australia Constitution Act s 117, clause 6Discrimination Act 1991 (ACT) ss 7(1), 7(1)(h), 7(2), 8(1)(a), 8(1)(b), 8(2), 8(3), 10(1), 18Health Practitioner Regulation National Law 2009 (QLD)Health Practitioner Regulation National Law 2010 (ACT) ss 23 52, 53, 66, 72 Human Rights Act 2004 (ACT) ss 5, 27A, 30, 40(1), 40B(1)(a)-(b)Human Rights Commission Act 2005 (ACT) s53ALegislation Act 2001 (ACT), Dictionary Racial Discrimination Act 1975 (Cth) ss 9(1), 9(1)(a)

Cases cited: Almassey and Omari and ACT Multicultural Council Inc [2009] ACTDT 1Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165Australian Medical Council v Wilson [1996] FCA 1618Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379Harrison v ACT Housing [2002] ACTDT 3

Jamal v Secretary of the Department of Health (1988) 14 NSWLR 252Prezzi v Discrimination Commissioner [1996] ACTAAT 132 Purvis v NSW (2003) 217 CLR 92Siddiqui v Australian Medical Council [2000] EOC 93-059Welsh v The Commissioner, Soil, Sand Conservation Service of NSW (1991) EOC 92-330Re Jordison: Raine v Jordison [1922] 1 Chancery 440 Protean Enterprises Pty Ltd v Randall [1975] VR 327

Tribunal: Mr A. Anforth – Senior Member

Date of Orders: 16 January 2015Date of Reasons for Decision: 16 January 2015

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL )

DT 7 of 2014

BETWEEN:

QINGLIN WANGApplicant

AND:

AUSTRALIAN CAPITAL TERRITORYRespondent

TRIBUNAL: Mr A. Anforth – Senior Member

DATE: 16 January 2015

ORDER

The Tribunal Orders that:

1. On being satisfied that the Respondent has both directly and indirectly

discriminated against the Applicant on the grounds of his race by

implementing the priority policy and placing the Applicant in Category 8, the

Registrar is directed to list the application for further directions as soon as

possible.

………………………………..Ms L. Crebbin – General President

for and on behalf of Mr A. Anforth - Senior Member

REASONS FOR DECISION

1. This case concerns a claim by the Applicant that he has been the subject of

unlawful discrimination by reason of his nationality under the Discrimination

Act 1991 (ACT) (the Act). The Respondent claims that the discrimination arises

from the manner in which his applications were assessed for an internship and

for a resident medical officer (RMO) position during 2014 at Canberra

Hospital.

2. The Respondent is responsible for the ACT’s health system, including

administration of the Canberra Hospital and the appointment of interns and

RMOs.

3. The Applicant is a 51 year-old migrant from China who arrived in Canberra in

2001. He is a permanent resident of Australia who seeks general registration to

practice as a health practitioner in Australia. He holds a MBBS and Master’s

degree in neurology from the Tianjin Medical University in China. His degrees

have been formally recognised by the relevant authorities in Australia. He has

satisfied all the requirements for registration as health practitioner in Australia

except that he needs to complete a one year internship.

4. The Respondent is faced with the problem that there are more applications from

medical graduates for internships and second year graduates for RMO positions,

than training positions in the ACT. The Respondent developed a policy to guide

the allocation of internships which has been approved by the ACT Health

Minister. This policy creates priority Categories 1-8 which depend upon the

geographic location of the university from which an applicant’s medical

qualification was obtained.

5. Category 1 is limited to ANU graduates. All internationally trained graduates

are automatically in Category 8. The categories in between deal with graduates

of other Australian universities.

6. In 2014 there were only enough training positions in the ACT for applications in

Category 1 with a few left over for Category 2. There is no prospect of a

Category 8 graduate being allocated a training position.

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7. The Applicant complains that the automatic allocation to Category 8 of

internationally trained graduates is unlawful discrimination on the basis of

nationality.

8. It should be noted that the policy under consideration is only a policy. It is not

an expression of the legislative will. As a mere policy it is subject to the

statutory constraints of both the Act and the Human Rights Act 2004 (ACT)

(HRA).

9. The material facts in this case are not in dispute. The dispute is whether those

facts constitute unlawful discrimination on the basis of nationality.

10. The application initially filed also included age as a second ground of unlawful

discrimination. This ground was not pressed at the hearing and is not further

addressed below.

The Facts

11. The Applicant is a 51 year-old migrant from China who arrived in Canberra in

2001. He holds a MBBS and Master’s degree in neurology from the Tianjin

Medical University in China. The Applicant worked in the Tianjin Medical

University of China between August 1984 and January 2001. He held the

positions of Director of Neurology Department and Consultant Neurologist

from September 1998 to January 2001.

12. The Applicant migrated in Australia in 2001, and became a permanent resident.

He was employed as a research assistant in Melbourne in 2001, and since

October 2002 has been employed as a nursing assistant in the aged care industry

in the ACT.

13. Between 2006 and 2014 the Applicant undertook and renewed various first aid

certificates and courses.

14. In 2009, the Applicant began preparing to take the Australian Medical Council

(AMC) examinations necessary for him to be eligible for registration as a

medical practitioner in Australia.

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15. Between 27 July 2009 and 6 September 2009 the Applicant attended and

successfully completed the MCQ Bridging Course run by the Victorian Medical

Postgraduate Foundation.

16. On 19 February 2010, the International Credentials Service of the Educational

Commission for Foreign Medical Graduates verified the Applicant’s Bachelor

of Medicine qualification.

17. On 18 June 2010, the Applicant completed an 18-week Clinical Bridging

Course run by the Victorian Medical Postgraduate Foundation under the

Victorian University.

18. During that time the Applicant also undertook a three-day course entitled

‘Culturally Competent Practice in the Australian Health System’.

19. On 29 October 2011, the Applicant passed the AMC Structured Clinical

Examination.

20. On 29 October 2011, the Applicant was granted an AMC certificate recognising

his medical qualifications.

21. In October 2012, the Applicant completed the Occupational English Test.

22. In 2013, the Applicant applied for (1) an internship and (2) the position of RMO

at the Canberra Hospital, both positions to commence in 2014. He also applied

for RMO positions in other States and Territories. The Applicant was

unsuccessful in all of his applications.

23. In 2013 the Canberra Hospital received 463 applications for 96 internship and

RMO positions. The intern applications were sorted into eight categories

according to the Ministerial policy referred to above. The Applicant was in

Category 8. Seventy eight positions were allocated to and accepted by

Australian National University Medical School graduates. The remaining

eighteen positions were offered to domestic graduates. There were insufficient

places available for the Respondent to offer a position to any person in Category

8.

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24. On 28 October 2013, the Applicant lodged a complaint with the Human Rights

Commission. He claimed to have been treated unfavourably due to his age and

race during the 2013 selection process for internships and Residential Medical

Officers at the Canberra Hospital.

25. On 5 March and 14 March 2014 conciliation hearings were held between the

Applicant and the Chief Medical Administrator of ACT Health which produced

no outcome. On 1 May 2014, the Human Rights Commission determined that

the matter was not suitable for conciliation and notified both parties of this

decision.

26. On 22 June 2014, the Applicant instructed the Human Rights Commission to

refer the matter to the ACT Civil and Administrative Tribunal. The Commission

did so on 9 July 2014.

27. On 6 August 2014, a differently constituted Tribunal held a directions hearing to

set dates for submissions and the next hearing dates. Those dates were modified

by an Order of the Tribunal on 15 October 2014. Orders were made for the

parties to file and serve the evidence they relied upon and their submissions on

the relevant law.

28. The Applicant filed his submissions on 15 September 2014 (Exhibit 2). The

Respondent filed its submissions on 9 October 2014 with various annexures

(Exhibit 3) and a statement from Professor Bowden (Exhibit 4)

29. On 25 November 2014, the matter was heard by the Tribunal. The Applicant

appeared in person, assisted by Mr Ilu. The Respondent was represented by Ms

Robinson, Barrister, and Ms Woodward of the ACT Government Solicitor’s

Office.

30. The only witness was Professor Francis Bowden for the Respondent. Professor

Bowden is the Chief Medical Administrator for ACT Health.

31. At the hearing it was agreed between the parties and the Tribunal, that the

Tribunal would give an interim decision as to whether the case involved direct

or indirect discrimination under the Act, but that the Tribunal would not

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consider the reasonableness of any discrimination until further submissions

were made by the parties.

Background

The Regulatory System for Health Practitioners

32. Australian health practitioners are regulated by a national scheme established by

the Health Practitioner Regulation National Law 2009 (QLD). This law is

applied in the ACT by section 6 of the Health Practitioner Regulation National

Law 2010 (ACT).

33. The National Law establishes the Australian Health Practitioner Regulation

Agency (AHPRA). AHPRA consists of several boards including the Medical

Board of Australia (MBA), which is responsible for, among other things,

registration of medical practitioners.

34. The AMC is responsible for developing accreditation standards and policies,

and for the assessment of international medical graduates for general or

specialist registration.

35. Graduates from Australia and New Zealand must obtain provisional registration

and complete 12 months supervised training before becoming eligible for

unconditional registration.

36. In order to work as health practitioners in Australia, international medical

graduates (IMGs) must have their qualifications formally recognised and be

registered by the MBA.

37. There are three pathways by which IMGs can become registered: the Competent

Authority pathway, the standard pathway and the specialist pathway. The

Applicant is only eligible for the ‘standard pathway’: his qualifications are from

an institution listed in the International Medical Education Directory, but not

from a Competent Authority in Canada, Ireland, New Zealand, the UK, or the

US, and he applied for general (not specialist) registration.

38. To complete the standard pathway, IMGs must be certified as having passed

theoretical and clinical exams set by the AMC, secure provisional registration

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and an offer of suitable employment, and complete 47 weeks of supervised

practice (an internship).

39. The approaches and needs of medical systems vary between countries; graduate

training is specifically tailored to the health system of the country in which the

education is given. The requirements imposed upon IMGs are designed to

ensure that they have the knowledge and practical experience of the Australian

system needed to safely practice in Australia.

40. Responsibility for training medical practitioners in Australia is shared between

the Commonwealth and the States and Territories. The Commonwealth funds

university medical education, while the States and Territories fund internships

in public hospitals.

41. In the first decade of this century there was a dearth of medical graduates and

thus internships were readily available. Since additional funding and incentives

were introduced in 2006, the number of medical graduates has dramatically

increased. Since 2013 the number of graduates has exceeded the number of

internships available.1

42. To address this situation, the States and Territories have reached a number of

inter-governmental agreements on the availability of internships.

43. As a result of such an agreement, the Respondent implemented the priority

system referred to above with the intention of preferring ANU graduates over

graduates of other Australian universities and preferring Australian graduates

over international graduates.

44. Professor Bowden for the Respondent gave evidence that the reason for

distinguishing between Australian and international graduates in the provision

of internships is that Australian graduates are specifically trained for the

Australian medical system and represent the best return on investment by the

Commonwealth and Territory governments, which fund medical students’

education and internships.2

1 Statement of Professor Bowden, [40].2 Respondent’s Submissions, [30]; Statement of Professor Bowden,

[51]-[54].

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45. The Respondent also notes that the preferential treatment given to graduates of

Australian universities is the product of consensus between State and Territory

governments across Australia, and is not solely implemented by the

Respondent. This point is not of itself persuasive; the mere fact that multiple

entities (governmental or otherwise) engage in certain conduct does not

preclude that conduct being unlawful.

46. The category for IMGs was removed in the 2014 intake for positions

commencing in 2015 so that international graduates are now entirely excluded

from consideration.

Relevant Legislation

Discrimination Act 1991 (ACT)

47. The Act prohibits discrimination on the grounds of certain attributes including

race (section 7(1)(h)). The Dictionary to the Act provides that ‘race’ includes

‘colour, descent, ethnic and national origin and nationality’ (emphasis added).

48. Under section 7(2) of the Act, a reference to an attribute in section 7(1)

includes:

(a) a characteristic that people with that attribute generally have; and

(b) a characteristic that people with that attribute are generally presumed to

have; and

(c) such an attribute that a person is presumed to have; and

(d) such an attribute that the person had in the past but no longer has.

49. Section 8 of the Act defines conduct that constitutes discrimination:

8 What constitutes discrimination(1) For this Act, a person discriminates against another person if—

(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or

(b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.

(2) Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.

(3) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—

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(a) the nature and extent of the resultant disadvantage; and(b) the feasibility of overcoming or mitigating the disadvantage; and(c) whether the disadvantage is disproportionate to the result sought by

the person who imposes or proposes to impose the condition or requirement.

50. The form of discrimination referred to in section 8(1)(a) is usually referred to as

‘direct discrimination’ and the form of discrimination referred to in section 8(1)

(b) is usually referred to as ‘indirect discrimination’. The reasonableness

defences set out in section 8(2) and (3) apply only to ‘indirect discrimination’.

51. Discrimination is prohibited in the context of both education and employment.

52. Section 10(1) makes it unlawful for an employer to discriminate against a

person:

(a) in the arrangements made for the purpose of deciding who should be

offered employment; or

(b) in deciding who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

53. Under section 18 it is unlawful for an educational authority to discriminate

against a person –

(a) by failing to accept the person’s application for admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person as a

student.

54. The Dictionary of the Legislation Act 2001 defines ‘fail’ to include ‘refuse’.

55. The Dictionary of the Act defines ‘educational authority’ to include ‘a body or

person administering an educational institution’, which in turn is defined as ‘a

school, college, university or other institution at which education or training is

provided.’

56. For present purposes the Canberra Hospital is taken to constitute an educational

institution that provides training for postgraduate interns and at the same time is

their employer. Both sections 10 and 18 apply in this case.

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Human Rights Act 2004 (ACT)

57. The HRA aims to protect and promote human rights in the territory.

58. For the purposes of the HRA ‘human rights’ means the civil and political rights

listed in Part 3 and the economic, social and cultural right to education in Part

3A (section 5 HRA).

59. Section 27A of Part 3A provides that everyone has the right to access to further

education and vocational and continuing training, and to enjoy those rights

without discrimination (section 27A (2), (3)(a) HRA).

60. In so far as it is possible, territory laws should be interpreted in a way that is

compatible with human rights (section 30 HRA).

61. It is unlawful for a public authority to act in a way that is incompatible with a

human right or, in making a decision, to fail to give proper consideration to a

relevant human right (section 40B (1)(a), (b) HRA).

62. Section 40(1) HRA states that ‘public authority’ includes:

(a) an administrative unit;

(b) a territory authority;

(c) a territory instrumentality;

…

(g) an entity whose functions are or include functions of a public nature,

when it is exercising those functions for the Territory or a public authority

(whether under contract or otherwise).

Health Practitioner Regulation National Law 2010 (ACT)

63. Health practitioners in the ACT are regulated by the Health Practitioner

Regulation National Law 2010 (ACT). Eligibility for registration is dealt with

by section 52:

52 Eligibility for general registration(1) An individual is eligible for general registration in a health profession if—

(a) the individual is qualified for general registration in the health profession; and

(b) the individual has successfully completed—

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(i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or

(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and

(c) the individual is a suitable person to hold general registration in the health profession; and

(d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and

(e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.

(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.

64. Section 53 provides that an individual is qualified for general registration if:

53 Qualifications for general registrationAn individual is qualified for general registration in a health profession if—(a) the individual holds an approved qualification for the health

profession; or(b) the individual holds a qualification the National Board established

for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or

(c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or

(d) the individual—(i) holds a qualification, not referred to in paragraph (a) or (b),

that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and

(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.

65. Section 66 provides for limited registration for the purpose of undertaking

postgraduate training or supervised practice. The period of limited registration is

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limited to 12 months and may not be renewed more than three times (section

72).

66. The Act also establishes the AHPRA (section 23) and a number of National

Boards including the Medical Board of Australia (section 31(1)).

67. Accreditation standards for a health profession may be developed by an external

accreditation entity for the health profession or an accreditation committee

established by the National Board (section 46). A National Board may also

accredit programs of study which meet approved accreditation standards

(section 48).

Jurisdiction

68. The ACT Civil and Administrative Tribunal (‘ACAT’ or ‘the Tribunal’) is a

statutory body with the powers and jurisdiction vested in it by legislation.

69. ACAT is authorised to hear and determine complaints referred to it by the

Human Rights and Discrimination Commissioner, whose office is part of the

ACT Human Rights Commission.

70. The Commissioner is empowered to refer complaints to ACAT by section 53A

of the Human Rights Commission Act 2005 (ACT). The complainant must have

instructed the Commissioner to do so, and the Commissioner must notify both

parties of the referral.

71. The Commissioner referred this matter to the Tribunal pursuant to instructions

from the Applicant. Both parties were notified of the referral. The Tribunal

accordingly has jurisdiction to hear this matter.

Consideration of Issues

72. The Applicant asserts both direct and indirect discrimination on the basis of his

race, or more specifically, his nationality.

Direct Racial Discrimination

73. To establish direct discrimination under section 8(1)(a) of the Act, the Applicant

must prove that he was (a) treated (b) unfavourably (c) in employment or

education (d) because he had an attribute protected by the legislation.

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74. The first three requirements are readily satisfied on the facts of this case and are

not denied by the Respondent.

75. There is no doubt that by placing his application in Category 8 the Respondent

acted or behaved towards the Applicant in some manner (‘to treat’),3 and that

the result of that conduct was unfavourable to the Applicant.4 In particular, the

Applicant has been unable to gain employment as an intern or in a position

equivalent to that he held in China, and as a result of this has suffered

financially as well as suffering physically and mentally from stress.5 The

conduct occurred in the context of the Applicant seeking employment to further

his education.

76. The test for discrimination is an objective one revolving around the question of

why the aggrieved person was treated as they were.6

77. It is not necessary to prove an intention to discriminate on the part of the

Respondent,7 but the discriminatory action must be deliberate in the sense that

‘the act which constitutes discrimination must be advertent and done with

knowledge of the [attribute].’8 In this case, the Respondent knew that the

Applicant was an IMG. The Respondent deliberately placed the Applicant in

Category 8 for this reason.

78. The Tribunal also notes that the determination of whether discrimination has

occurred is not a comparative exercise between the treatment of the complainant

and the treatment of others.9 What is relevant is whether the particular treatment

occurred because the complainant had a certain attribute.10

3 Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379, [54].

4 Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [22]-[24].5 Tribunal documents, section 1: Complaint to Human Rights and

Discrimination Commissioner (28 October 2013), 11.6 Purvis v NSW (2003) 217 CLR 92, 163 [236] (Gummow, Hayne and

Heydon JJ).7 Harrison v ACT Housing [2002] ACTDT 3.8 Jamal v Secretary of the Department of Health (1988) 14 NSWLR

252, 265.9 Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379,

[22].10 Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379,

[24].

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79. If that reason (i.e. the complainant having a protected attribute) played a

causative role in the conduct, and was not a trivial or insubstantial factor behind

it, the conduct will be unlawful under the Act 11. However, the reason need not

be the dominant or substantial reason for doing the act.12

80. On the face of the policy, the Respondent’s priority list distinguishes between

applicants on the basis of where they graduated from medical school.

81. The Applicant suggests that persons of foreign origin ‘generally’ attend medical

schools in their home country. Placing IMGs in Category 8 amounts to racial

discrimination as it accords them the least favourable treatment. This argument

hinges on the following two points.

82. First, ‘nationality’, ‘national origin’ and ‘ethnic origin’ are components of ‘race’

as defined by the Act.

83. Second, the Applicant (relying on Gama v Qantas Airways Ltd [2006] FMCA

1767 at 306) argues that:

(i) the majority of Australian and New Zealand graduates would identify

themselves as being of the same, or similar, ethnic or national origin [or

nationality] as one another; and

(ii) the majority of IMGs would identify themselves as being of a different

ethnic or national origin [or nationality] to Australian and New Zealand

graduates.13

84. If persons of international origin were automatically placed in Category 8, the

Applicant submits that there could be no denial that direct racial discrimination

had occurred.

85. The Respondent draws a distinction between the national origin of a person and

the location of the medical school from which they graduated. The Respondent

points to the fact that each category in the priority list is open to graduates of all

11 Almassey and Omari and ACT Multicultural Council Inc [2009] ACTDT 1, [42].

12 Discrimination Act 1991 (ACT) section 4A(2).13 Tribunal Documents, Exhibit 2: Applicant’s Submissions (15

September 2014) 3.

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races and national origins. It is said that people of Australian and non-Australian

ethnic ,or national origin, or nationality are categorised according to where they

graduated.

86. The Respondent argues that while students are more likely to complete their

primary and secondary education in their country of birth, globalisation and

incentives for international study mean that many tertiary students obtain their

qualifications (in whole or in part) from international institutions. This is

reflected in reliance of Australian universities on fee-paying international

students for a significant proportion of their revenue – a matter of common

knowledge.

87. Further, the Respondent has given evidence that both Australian and full-fee

paying students of international origin were guaranteed placements in 2013 if

they fell within Category 1. Of the 96 applicants offered internships

commencing in 2014, 85 were permanent residents and 11 were temporary

residents.14

88. The Respondent submits that a distinction by reference to the place where a

person was educated is not a distinction based on national origin or nationality.

89. The Respondent relied upon the decision of Siddiqui heard by the Human

Rights and Equal Opportunity Commission (HREOC).15 This case concerned a

quota system imposed on ‘over-seas trained doctors’ under which they were all

required to sit exams not required of domestic medical graduates and then only

the top 200 were admitted each year. Mr Siddiqui was an Indian medical

graduate. He complained that the quota system and exams were discriminatory

based on race.

90. The Commission held that the quota system and exams were not an act based on

‘national origin’ as it was based on where the person had been trained and

applied equally to Australian citizens who trained overseas. Imposing the

requirement therefore did not amount to racial discrimination based on national

origin.

14 Tribunal Documents, section 4: Letter from Dr P Brown to the Human Rights Commission (December 2013), section 6.

15 Siddiqui v Australian Medical Council [2000] EOC 93-059 (‘Siddiqui’).

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91. The Tribunal notes that the HREOC, now the Australian Human Rights

Commission is not a court and its decisions do not bind the Tribunal.

92. The difficulty the present Tribunal has with the Respondent’s argument and the

Siddiqui decision, is that it rises no higher than the proposition that IMGs are

not necessarily prejudiced by the categories in the policy because they could

elect to re-study under graduate or post graduate medicine at the ANU and

thereby bringing themselves within Category 1. It must be remembered that the

policy is dealing with medical graduates who, by definition have already

completed their undergraduate education.

93. So much can be accepted, but the test in section 7(2) of the Act is not whether

the policy in question ‘necessarily’ discriminates against a person on the basis

of nationality; it whether the policy discriminates on the basis of ‘a

characteristic that people with that attribute generally have’.

94. Put another way, is it the case that graduates of a medical university of China

(or other nation) are ‘generally’ of Chinese nationality (other nationality). The

test is not whether a graduate of a Chinese university is ‘necessarily’ of Chinese

nationality. It only has to be ‘generally’ the case.

95. In the view of the Tribunal, it is beyond trite and warrants no argument, that it is

‘generally’ the case that graduates of a Chinese medical school are ‘generally’

of Chinese nationality (and the same is also true of other nations).

96. When section 8 makes unlawful discrimination on the basis of nationality (in

employment or education), it might be argued that the section is not intending to

make unlawful discrimination on the basis of national origin per se. It might be

argued that the intention is only to make unlawful, discrimination directed to

single out a specific nationality.

97. It is clear enough that if a policy purported to discriminate in education or

employment against people of a specific nationality, then section 8 would be

breached i.e. a policy that people of X nationality are not welcome at this

school, would be plainly offensive to section 8 and to the community generally.

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Thus it would not be open to the Respondent to explicitly include Chinese

graduates in Category 8.

98. But the policy does not single out any particular nationality per se, and does not

differentiate between any nationalities except to the extent that they are not of

Australian nationality. Is this an unlawful act of direct discrimination for the

purposes of section 8(1)(a) of the Act? The answer must still be, yes. A policy

that said that only people of Australian nationality were welcome at this school

or to apply for employment, would be offensive to section 8(1)(a) and to the

community generally.

99. There may be reasons for the present state of this policy, but that is irrelevant to

whether direct discrimination has occurred under section 8(1)(a). The legislature

has ordained that such forms of discrimination are not to be tolerated in our

society. It is not open to a Minister acting in an executive capacity, or to any

public administrator to side step that law because they perceive parochial

economic advantages in doing so.

100. On the basis of the above considerations, the Tribunal is satisfied that the

Respondent’s conduct constitutes unlawful discrimination under section 8(1)(a)

of the Act.

101. The Tribunal notes the Respondent’s reliance on Australian Medical Council v

Wilson & Ors [1996] FCA 1618 which was determined under the

Commonwealth Racial Discrimination Act 1975 (RDA). It is an earlier appeal

in the Siddiqui matter.

102. The Human Rights Commission found the policy to be indirectly discriminatory

and an appeal found its way to the Full Federal Court.

103. The RDA defined direct discrimination in section 9(1) RDA and indirect

discrimination in section 9(1A) RDA.

104. The decision in Wilson is distinguishable on four grounds:

(a) the case on appeal to the Full Federal Court concerned only the

Commission’s findings of indirect discrimination; the Commission did not

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find direct discrimination and so this issue did not arise on appeal for the

Full Court;

(b) the RDA contained no equivalent to section 7(2) of the Act that applies in

the ACT to both direct and indirect discrimination;

(c) the RDA contains a comparative test that is not present in the Act;

(d) the case turned on the evidence that was before the Human Rights

Commission on that occasion.

105. All members of the Full Federal Court concurred in the construction of the RDA

that preserved a strict distinction between ‘direct’ (section 9(1)) and ‘indirect

discrimination (section 9(1A).

106. Black CJ concurred with the orders and terms of Heerey J and agreed generally

with the reasons of Sackville J.

107. In relation to direct discrimination the only observation by Heerey J was at [73]

that:

In the present case the requirement that OTDs sit any examination, or pass an examination within the 200 quota, could have been an act contravening s 9(1) if, as a matter of fact, it was "based on ... national or ethnic origin". On the evidence the Commission was not prepared to find that the requirement was so based. That conclusion was plainly open on the evidence.

108. Sackville J addressed the issue of direct discrimination at greater length. At [43]

he said:

The most obvious case of a distinction based on national origin is one where a distinction is imposed expressly by reference to a person's national origin. If, for example, a medical college explicitly denied admission to all persons of Indian origin, that act, or the distinction involved in the act, would clearly be based on national origin. (It might also be based on other grounds covered by s.9(1), but that is not presently relevant.) Even where the act or distinction is not expressly based on national origin, if the criterion actually applied by the alleged discriminator is national origin that is enough to attract the legislation…

109. Sackville J noted at [47] that the explicit basis for the quota and requirement for

examination made no reference to nationality, but was framed by way of

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exclusion, namely all those who were not graduates of domestic universities

were caught in the quota and required to undertake the examination.

110. Sackville J then adds the surprising statement:

48. There was nothing in the evidence to suggest that, even though the AMC did not impose any distinction expressed by reference to the national origin of candidates, nonetheless the "true basis" for requiring OTDs to undertake the examination was their national origin. The criterion applied by the AMC was not a subterfuge for drawing a distinction between particular candidates for registration, the true basis for which was their differing national origins. No suggestion was made, for example, that persons of Indian origin were at any disadvantage, by reason of their national origin, in gaining entry to or graduating from Australian or New Zealand medical schools.

111. The statement is surprising firstly, because the Ministerial request for the

imposition of the quota was in evidence and it explicitly said that the motive for

the policy was to reduce the number of overseas trained doctors. His Honour

says in paragraph [49]:

It is arguable that a distinction drawn between persons of Australian and New Zealand origin and those who are not of Australian or New Zealand origin is a distinction "based on national origin" for the purposes of s.9(1) of the RD Act. But the requirements imposed by the AMC upon applicants seeking registration were not expressed by reference to whether candidates were or were not of Australian or New Zealand origin.

112. It is self-evident that the sets of medical graduates trained in Australian or New

Zealand on the one hand; or trained over seas on the other, spans the field of

options. To impose a quota and examinations only on doctors trained overseas is

exactly the same logic statement as exempting or preferring doctors trained in

Australia or New Zealand.

113. Sackville J appears to take the view that unless the policy criteria explicitly

mention national origin, as opposed to overseas ‘trained’, then no discrimination

occurs:

55. Nor, for the reasons I have given, can it be said that the "true basis" for selection in the quota was national origin (or race, colour, descent or ethnic origin). The quota, both in form and substance, selected candidates by reference to the medical schools from which they graduated and their performance in a competitive examination. The

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distinction drawn between OTDs, who had to gain entry into the quota in order to be admitted to registration, and graduates of accredited medical schools was not based on national origin.

114. This is an important point, because it is the point of departure between the RDA

and the Act. In the ACT, section 7(2) defines the attribute of nationality by

reference to a characteristic that people of that nationality ‘generally’, but not

‘necessarily’ possess. Neither Sackville J, nor the other members of the Full

Court, considered whether doctors trained ‘over seas’ would ‘generally’ (and

not necessarily) have a different nationality. They did not consider this point

because the equivalent of section 7(2) of the Act does not appear in the RDA.

115. The decision in Wilson is not binding in the present case. Quite apart from the

significantly different statutory provisions in question, the Tribunal

acknowledges that reasonable minds can differ on issues of statutory

construction and factual evaluation, but confesses that it is most unconvinced by

the logic Sackville J in that case.

Indirect Racial Discrimination

116. To establish indirect discrimination pursuant to section 8(1)(b), 8(2) and 8(3) of

the Act, the Applicant must prove that the Respondent imposed a condition or

requirement upon the Applicant which unreasonably disadvantages people of

his nationality.

117. While ‘condition or requirement’ is not defined by the Act, the High Court has

held that:

‘the words ‘requirement or condition’ should be construed broadly so as to cover any form of qualification or prerequisite… Nevertheless, it is necessary in each particular instance to formulate to actual requirement or condition with some precision.’16

118. The ‘condition’ imposed on medical graduates who wish to be given priority for

an internship (and, as a practical matter, in order to be considered at all) is that

they graduate from the ANU or another Australia medical school.

16 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185 in relation to the Anti-Discrimination Act 1977 (NSW).

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119. Disadvantage for the purpose of section 8(1)(b) occurs where treatment is

unfavourable to the complainant’s interests.17 Comparison between the

treatment of the Applicant and other medical graduates is not necessary to

establish disadvantage, it is sufficient that the Applicant was disadvantaged by

the condition.18 In any event the comparative disadvantage with graduates of

Australian universities is obvious.

120. The Respondent concedes that implementing the priority list favouring domestic

graduates over persons with international qualifications imposed a condition or

requirement upon the Applicant which had the effect of disadvantaging him.19

121. However, the Respondent denies that the Applicant’s nationality was a

causative factor preventing him from satisfying that condition.

122. The Applicant argues that even if the priority list does not overtly discriminate

against persons of foreign nationalities, it has that effect in practice, and thus its

application by the Respondent amounts to indirect racial discrimination.

123. Section 7(2) of the Act applies to indirect discrimination under section 8(1)(b)

in the same manner that it applies to direct discrimination under section 8(1)(a)

and hence, for the reasons given above, discrimination on the basis of

graduating from any university in China does invoke or connote discrimination

on the basis nationality.

124. The test in section 8(1)(b) is whether automatically allocating all IMG’s

including the Applicant to Category 8 is ‘likely’ to have the effect of

disadvantaging them. Again, the answer is transparently ‘yes’.

125. The Tribunal acknowledges that the construction it has adopted is a broad one

which encompasses all graduates of non-Australian universities as the group

discriminated against. Any narrower approach would defeat the objectives of

the legislation. These include:

(a) to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the

17 Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [24].18 Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [22].19 Respondent’s submissions, [46], [47].

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provision of goods, services, facilities and accommodation and the activities of clubs; and

…(d) to promote recognition and acceptance within the community of the

principle of equality of opportunity for all people.20

126. The Tribunal also notes an apt statement by the Equal Opportunity Commission

of NSW in relation to that State’s discrimination legislation, that:

‘The Anti-Discrimination Act does not require that people be employed in inappropriate circumstances to do work which they cannot do; it requires that people be given every opportunity to show what they can do and be allowed their chance at employment…’21

127. The situation facing the Applicant is one in which, no matter how excellent his

qualities and qualifications, the Applicant cannot be selected for an internship

until the least meritorious domestic graduate has been offered the position. The

Respondent agrees that this is the situation at hand.22

128. The Applicant is condemned to suffer this fate for no other reason than that he

was born and educated in his home country of China.

129. The Tribunal notes that in the 2013 intake of interns the number of positions

offered within categories did not strictly correlate to the priority of the

Categories. For instance, more positions were offered to candidates in Category

6 (inter-State graduates) than to candidates in Categories 3 and 4 (ANUMS

graduates applying to ACT and elsewhere) even though Category 6 is of lower

priority.23 If the reason for this is that there were more meritorious applicants in

Category 6 than in Category 3, the Tribunal is at a loss as to why the merits of

applicants in Category 8 were not considered. There is no evidence before the

Tribunal concerning this.

130. The condition imposed by the Respondent that internship applicants graduate

from an Australian university (and preferable the ANU) operates in practice to

20 Discrimination Act 1991 (ACT) section 4.21 Welsh v The Commissioner, Soil, Sand Conservation Service of NSW

(1991) EOC 92-330, cited in Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [48].

22 Tribunal Documents, section 4: Letter from Dr P Brown to the Human Rights Commission (December 2013), section 6.

23 Statement of Professor Bowden, [59] Table 3.

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deprive persons such as the Applicant of foreign origin (and thus education) of

the opportunity for employment and training as interns. The Tribunal finds that

the Respondent’s conduct in implementing the priority system constitutes

indirect discrimination within the meaning of section 8(1)(b) of the

Discrimination Act 1991 (ACT).

The Resident Medical Officer claim

131. The Applicant considers that he has been unlawfully excluded from eligibility

for a position as Resident Medical Officer (RMO) of the Canberra Hospital. He

believes the ground for his exclusion is his race.

132. The Applicant also applied for RMO positions in other jurisdictions. He stated

that ‘ACT Health was the only organization to cut me out of the RMO

recruitment process completely’.24 The Applicant has provided evidence in the

form of emails from Health authorities in New South Wales, the Northern

Territory, Queensland, South Australia, and Tasmania acknowledging his

application for RMO or similar junior medial officer positions in those States

and Territories.25

133. The Applicant asserts that these emails are evidence that holders of AMC

certificates are eligible for RMO positions. His reasoning is that AMC

certificate holders like himself have two paths to obtain registration: either an

internship or an RMO position – and thus that completion of an internship and

registration are not pre-requisites for RMO positions.26

134. Based on his belief that he satisfies the selection criteria for an RMO position,

the Applicant has concluded that the Respondent’s rejection of his application

was based on his race.

24 Tribunal Documents, section 3: Letter from the Applicant to Ms K Gray in response to a letter from Dr P Brown (18 January 2014), section 4.

25 Tribunal Documents, section 3.26 Tribunal Documents, section 3: Letter from the Applicant to Ms K

Gray in response to a letter from Dr P Brown (18 January 2014), section 3.

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135. The Applicant’s email correspondence demonstrates only that the Applicant

completed the application in those States and Territories, not that he fulfils the

selection criteria or other requirements for the position.

136. Evidence from Professor Bowden and the ACTPS Medical Officers Enterprise

Agreement 2011-2013 indicates that RMO positions in the ACT require the

office-holder to have completed an internship and hold unconditional

registration to practice.27 Professor Bowden’s evidence is particularly persuasive

as he is the Chief Medical Administrator of ACT Health, responsible for

overseeing recruitment and training of medical personnel.28

137. The evidence 29 indicates that RMO positions are designed for postgraduates in

their second or third postgraduate year. Such persons have gained registration

after completing an internship in their first postgraduate year.

138. The pre-selection questions also indicate that registration is necessary for the

RMO position. Question 2 asks applicants to select their medical qualification

from a list consisting of:

Australian Trainee;

Doctors with Australian General Registration;

Overseas trained and eligible for limited registration via the Competent

Authority Pathway, i.e. doctors trained in NZ, UK, Ireland, Canada and

USA;

Overseas trained with postgraduate qualifications and in final 2 years of

Fellowship;

Overseas trained with Limited Registration who is currently working in

Australian Hospital;

None of the above.

27 Respondent’s Submission, [82]-[86] (ACTPS Agreement at [83]); Statement of Professor Bowden, [74].

28 Statement of Professor Bowden, [3].29 ACT Health, Resident Medical Officer recruitment information (11

June 2014), available at http://health.act.gov.au/employment/medical-officer-training-recruitment/resident-medical-officers/ (accessed 9 December 2014).

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139. On the evidence before the Tribunal the Applicant falls into the last category,

‘none of the above’, which indicates he is not eligible for the position.

140. The Applicant is not registered, nor is he eligible for registration as he has not

yet completed an internship in Australia. The MBA guidelines on registration

clearly and repeatedly state this is a requirement additional to achieving an

AMC certificate:

‘An AMC certificate is awarded to international medical graduates who have successfully completed all components of the AMC examinations (standard pathway). These medical practitioners are required to satisfactorily complete 12 months supervised practice in Australia before being eligible for general registration.’30

141. Contrary to the Applicant’s expressed belief, completing an internship overseas

does not mean that the person need not undertake an internship in Australia.31

142. The Tribunal accepts the Respondent’s evidence that RMOs in the ACT must be

registered (or at least be eligible for registration) to practice in Australia. As the

Applicant is not registered and is not eligible to be registered, the Tribunal

concludes that the ACT’s rejection of his application was due to his not meeting

fundamental selection criteria. This does not constitute discrimination on the

basis of his race or any other protected attribute under the Discrimination Act

1991 or the Human Rights Act 2004.

143. Similarly, imposing the condition upon eligibility for RMO positions that

candidates must be registered to practice and have completed an internship does

not constitute an act that indirectly discriminates against persons of the

Applicant’s race.

144. There is the obvious connection between eligibility for RMO positions and

eligibility for internships as only persons who have completed internships are

eligible for RMO positions. However, the selection process for RMO positions

30 Tribunal Documents, section 3: Medical Board of Australia, ‘Granting general registration to medical practitioners in the standard pathway who hold an AMC certificate’, p1 Summary, p1 ‘General requirements’ at [5], and p2 Specific Requirements at [2].

31 Tribunal Documents, section 3: Letter from the Applicant to Ms K Gray in response to a letter from Dr P Brown (18 January 2014), section 3.

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does not involve application of the priority list. The primary consideration is

whether candidates are appropriately qualified, which the Applicant is not.

145. There is no evidence before the Tribunal to indicate that the Respondent places

any condition of race upon persons applying for RMO positions. The

Applicant’s ineligibility for the RMO position is an immediate consequence of

the Respondent’s refusal to admit him into an internship.

146. Therefore, in relation to the RMO positions the Tribunal concludes that the

Respondent has not breached section 8(1)(a) or section 8(1)(b) and (2) by

directly or indirectly discriminating against the Applicant on the basis of his

race.

Constitutionality of the Priority Policy

147. The Applicant considers that the priority list is inconsistent with section 117 of

the Commonwealth of Australia Constitution Act.32 Section 117 provides that:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

148. This provision does not arise in the Applicant’s circumstances as he is a resident

of the ACT who is protesting his treatment by the Territory, not by any other

State.

149. Additionally, this provision does not apply to the ACT or the Northern Territory

as they are Territories not ‘States’ as defined by clause 6 of the Constitution.

150. The Tribunal notes, however, that the Priority List favours ACT graduates and

residents over the graduates of other States, and that other States have similar

Priority Lists which favour their own graduates and residents – a system which

may prove to be inconsistent with section 117 if challenged within those States.

This is a matter for others on another day.

32 Tribunal Documents, section 5: Application to the Tribunal, p 2.

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Findings

151. The Applicant has established that the Respondent both directly and indirectly

discriminated against him by reason of his race in contravention of section 8(1)

(a) and 8(1)(b) of the Act in automatically placing him in Category 8 of the

Priorities Policy governing internships.

152. The Applicant has not established that the Respondent discriminated against

him by virtue of his race in contravention of section 8(1)(a) or of section 8(1)(b)

of the Discrimination Act 1991 (ACT) in relation to the RMO positions.

153. Having reached this conclusion, pursuant to the agreement made between the

parties and the Tribunal at the hearing of 25 November 2014, the Tribunal will

await further submissions from the parties as to the ‘reasonableness’ of the

Respondent’s conduct in accordance with section 8(2) of the Discrimination Act

1991 (ACT); or for the parties to exercise such appeal rights in respect of this

interim decision as they possess.

154. The Registrar is to provide a copy of this interim decision to the parties and

relist the matter for directions.

………………………………..Ms L. Crebbin – General President

for and on behalf of Mr A. Anforth – Senior Member

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HEARING DETAILS

FILE NUMBER: DT 14/07

PARTIES, APPLICANT: Quinlin Wang

PARTIES, RESPONDENT: Australian Capital Territory

COUNSEL APPEARING, RESPONDENT Ms H. Robinson

SOLICITORS FOR RESPONDENT Ms S. Woodward, ACT Government Solicitor

TRIBUNAL MEMBERS: Mr A. Anforth – Senior Member

DATES OF HEARING: 25/11/2014

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