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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WANG v AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2016] ACAT 71
DT 7 of 2014
Catchwords: DISCRIMINATION – racial discrimination – direct and indirect discrimination – whether policy to prioritise grants of medical internships to local and interstate graduates over overseas trained doctors constitutes discrimination – whether the term ‘characteristic’ in the Discrimination Act 1991 extends to educational background
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 23, 48
Anti-Discrimination Act 1977 (NSW) s 7
Racial Discrimination Act 1975 (Cth)
Human Rights Act 2004 (ACT) ss 30, 40B
Disability Discrimination Act 1992 (Cth) ss 5, 6
Discrimination Act 1991 (ACT) s 7, 8, 10, 70
Equal Opportunity Act 2010 (Vic) ss 8, 9, 17
Health Practitioner Regulation National Law 2010 (ACT) ss 52, 53, 66, 23, 31
Human Rights Act 1993 (NZ) s 21, 22, 65
Human Rights Commission Act 2005 (ACT) s 53A, 53E
New Zealand Bill of Rights 1990 (NZ) s 19
Sex Discrimination Act 1984 (Cth) s 5
Cases cited: Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
Australian Iron & Steel v Banovic (1989) 168 CLR 165
Australian Medical Council v Wilson [1996] FCA 1618
Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13
Bropho v Western Australia [2007] FCA 519
Commissioner of Fire Brigades (NSW) v Lavery (2005) EOC 93-378
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Commonwealth v Human Rights & Equal Opportunity Commission (1993) 46 FCR 191
Commonwealth v Human Rights & Equal Opportunity Commission (1995) 63 FCR 74
Commonwealth v Human Rights and Equal Opportunity Commission [2000] FCA 1150
Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311
Correy v St Joseph’s School [2007] NSWADT 104
Edgley v Federal Capital Press (2001) 108 FCR 1
Edgley v Federal Capital Press of Australia [2001] FCA 379
Edwards v Bourke Shire Council [2005] NSWADT 9
Hall v Sheilban (1989) 20 FCR 217
IW v Perth (1998) 191 CLR 1
Jamorski v Attorney General of Ontario (1988) 49 DLR (4th) 426
Kapooor v Monash University (2001) 4 VR 483
King-Ansell v Police [1979] 2 NZLR 531
Kovac v The Australian Croatian Club Ltd (No. 2) [2016] ACAT 4
Kovac v Australian Croatian Club Ltd [2014] ACAT 41
Kumaran v Rail Infrastructure Corporation [2005] NSWADT 30
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Minns v NSW [2002] FMCA 60
Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73
Nesci v TAFE Commission of NSW (No2) [2005] NSWADT 183
Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68
O’Connor v Victoria [2004] VCAT 1040
Philip v NSW [2011] FMCA 308
Prezzi v Discrimination Commissioner [1996] ACTAAT 132
Purvis v NSW (2003) 217 CLR 92
R v Wilson; ex parte Kisch (1934) 52 CLR 234
Secretary of the Department of Foreign Affairs and Trade v Styles (1989) EOC 92-265
Sellars v Adelaide Petroleum NL (1992-1994) 179 CLR 332
Siddiqui v Australian Medical Council (2000) EOC 93-059
Sydney University Postgraduate Representative Association v the Minister for Transport Services [2006] NSWADT 83
Thomson v Orica Australia (2002) 116 IR 186
Waters v Public Transport Corporation (1991) 173 CLR 349
Willis v State Rail Authority of NSW (1992) EOC 92-455
List of
Texts/Papers cited: Kevat, D, & Lander, F, ‘Emerging inequality and potential unconstitutionality- the case for reform of the intern priority system’ (2013) 198 Medical Journal of Australia (6)
Hunyor J ‘Skin deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535
Tribunal: Senior Member A Anforth
Date of Orders: 30 June 2016
Date of Reasons for Decision: 30 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 7/2014
BETWEEN:
QINGLIN WANG
Applicant
AND:
AUSTRALIAN CAPITAL TERRITORY
Respondent
TRIBUNAL: Senior Member A Anforth
DATE: 30 June 2016
ORDER
The Tribunal finds:
1. The respondent has engaged in an act of ‘direct’ discrimination under sections 8(1)(a) and 10 of the Discrimination Act 1991 against the applicant on the basis of his race.
2. In the alternative, the respondent has engaged in an act of ‘indirect’ discrimination under sections 8(1)(b) and 10 Discrimination Act 1991 against the applicant on the basis of his race.
3. In either alternative the act of discrimination is the implementation of the respondent’s Policy regulating the intake of medical internships into ACT hospitals and the relegation of overseas trained doctors to the last category thereof.
The Tribunal orders:
1. The applicant is to be considered on his merits for the next internship intake.
2. The consideration of the applicant’s merits should be free of any assumptions to the effect that all ANU graduates would be superior candidates to the applicant on their merits just by reason of the fact that they are recent ANU graduates. There should be no assumption that the undergraduate clinical placements of ANU students is superior clinical experience, or preparation for work, than the years of clinical practice of the applicant including the years he has spent in Australia in aged care, and the additional course he has undertaken since coming to Australia.
3. The respondent is to pay the applicant the sum of $40,000 in compensation for the anxiety, embarrassment and humiliation he has suffered by reason of the respondent’s discriminatory conduct.
………………………………..
Senior Member A Anforth
Table of Contents
ORDER 1
Background 4
The issue 6
Evidence previous given and noted in the interim decision 7
The involvement of the HRC 17
Further evidence filed 20
Hearing on 24 March 2016 24
The evidence of Dr Kevat 25
Dr Wang’s evidence 25
The evidence of Professor Bowden 25
The evidence of Ms Corey 28
The applicant’s submissions 28
The respondent’s submissions 32
The applicant’s reply 36
Tribunal summing up 36
Legislation 37
Comparison with the relevant provisions of the equivalent Commonwealth, NSW and Victorian statutes to which the Tribunal has been referred 41
Jurisdiction 48
A review of the relevant law 49
‘Attributes’ and ‘characteristics’ – section 7(1) and (2) of the Discrimination Act 49
Direct and indirect discrimination 50
The causal test ‘because of…’ 50
The unfavourable treatment 53
The ‘reasonableness’ test of section 8(2)(3) of the DA 53
The awarding of compensation 68
Consideration of the issues 73
Direct discrimination 73
Indirect discrimination 76
Remedy 83
REASONS FOR DECISION
Background
1. This case concerns a claim by the applicant that he has suffered direct and indirect discrimination under section 8 of the Discrimination Act 1991 (ACT) (DA). The applicant was a medical practitioner in China of some seniority with specialist qualification in neurology before coming to Australia. He is an Australian citizen. He completed the necessary Australian Medical Council (AMC) examinations for recognition of his Chinese medical qualification in 2011 having commenced them in 2009. In 2013 he applied for a 2014 internship position at Canberra Hospital in order to qualify for registration as a medical practitioner. The respondent runs the internship programs for ACT hospitals.
2. In the applicant’s circumstances an Australian internship is an essential requirement for registration as a medical practitioner in Australia no matter what his qualifications and standing outside Australia.
3. In 2014 the respondent implemented a new Ministerial ‘internship policy’ (the Policy) that prioritised applicants for internship in ACT hospitals. Under the Policy graduates from the ANU Medical School formed the first category; graduates of various other Australian universities formed categories two to six; graduates from New Zealand universities formed the seventh category; and overseas trained doctors formed the eighth and last category:
Category 1: Guaranteed First Round Offer: Graduates of the ANU Medical School who demonstrate their commitment to working in the ACT by not making any other application for internship…….
Category 2: Guaranteed First Round Offer (capped at 5): Domestic graduates of NSW Universities.
Category 3: First Round Offer Not Guaranteed: Graduates of other Australian Universities who completed Year 12 studies in the ACT.
Category 4: First Round Offer Not Guaranteed: Graduates of the ANU Medical School not offered a category 1 placement.
Category 5: First Round Offer Not Guaranteed: Graduates of other Australian Universities.
Category 6: First Round Offer Not Guaranteed: Graduates of Australian University campuses outside of Australia accredited by the AMC.
Category 7: First Round Offer Not Guaranteed: Graduates of New Zealand Universities.
Category 8: First Round Officer Not Guaranteed: International Medical Graduates.
4. Following the implementation of this Policy for the 2014 intern intake, overseas trained doctors are relegated to the last priority category, under which there was no real possibility of Dr Wang, or any overseas trained doctor, obtaining an internship. The implementation of this Policy marked a major departure from the previous merit based regime that included those overseas doctors that had completed the AMC exams.
5. Dr Wang complained to the ACT Human Rights Commissioner (HRC) of race discrimination. The HRC was unable to resolve the matter between the parties and referred the matter to the Tribunal.
6. This matter has been the subject of a hearing in the tribunal on 25 November 2014 and an interim decision on 16 January 2015 by the presently constituted Tribunal in Wang v Australian Capital Territory [2015] ACAT 5.
7. The HRC appeared amicus curie in the previous proceedings but confined her participation to written submissions on the law.
8. In the interim decision the Tribunal found the respondent had committed direct discrimination against the applicant for the reasons set out therein and it was therefore not necessary to further address the issue of indirect discrimination. The issue of indirect discrimination and penalty had not been determined. The respondent made an application to the Supreme Court for the present Tribunal member to recuse himself for bias. That application was unsuccessful.[1]
9. When the matter returned to the Tribunal from the Supreme Court the parties jointly asked the Tribunal to set aside its previous interim decision in relation to direct discrimination and rehear that matter. The parties contended that the issue of direct discrimination had not been argued before the Tribunal on the first occasion, only the issue of indirect discrimination had been argued, and hence a finding of direct discrimination by the Tribunal was infected with an error of law. On 6 January 2016 the Tribunal agreed to the requested course of action on the explicit basis that it was the joint wish of the parties and that to do otherwise may result in further unnecessary litigation. The Tribunal formally set aside the previous interim decision.
10. For the purposes of the resumed hearing the parties filed further evidential material and submissions to be considered in addition to those matters already in evidence.
11. The matter came on for hearing on 24 March 2016. The applicant argued both direct and indirect discrimination and penalty. The respondent responded accordingly. The matter was reserved for decision.
The issue
12. The issues for the Tribunal are:
a) whether ‘direct discrimination’ on the basis of ‘race’ (defined to include ethnicity, national origin and nationality) has occurred, as defined in section 7(1), 7(2) and 8(1) of the DA; or
b) in the alternative, whether ‘indirect discrimination’ has occurred, as defined in section 7, 7(2), 8(2) and 8(3) of the DA.
13. In short, the core of the dispute concerning ‘direct discrimination’ comes down to the construction of the concept of ‘characteristic’ in section 7(2) of the DA in its application to sections 7(1) and 8(1) of the DA for the purpose of determining whether ‘direct discrimination’ on the basis of race (and national origin) has occurred. The issue is whether section 7(2) of the DA requires the Tribunal to consider the question:
whether it is ‘generally’ (but not necessarily) the case that medical graduates of overseas universities are of the same national origin or nationality as the country in which their university is located; put another way, is it generally the case that medical graduates obtained their degrees in their country of origin.
14. The parties conceded that the answer to this question is ‘yes’.
15. The applicant contends that the above correctly formulates the test to be applied in sections 7 and 8 of the DA. The respondent contends that the above misstates the test arising from 7(2). The respondent argued that in the present circumstances section 7(2) only poses the question of whether it was ‘generally’ true that people of non-Australian origin possess a medical degree per se, to which the answer is plainly ‘no’. On this basis section 7(2) is said to be irrelevant for present purposes and hence of no avail to the applicant.
16. The same and analogous issues have been the subject of decisions of courts and tribunals in Australia and in other countries in the context of differently worded discrimination statutes. These differences in wording are of significance. They include but are not limited to whether the particular statute has the extended definition of an ‘attribute’ in section 7(2) of the DA that catches characteristics that people of a race or national origin ‘generally’ have or are imputed to have. The existence of an equivalent to section 7(2) of the DA has a direct bearing on the answer the court or tribunal of any jurisdiction may have delivered. For this reason it is important for the present Tribunal to carefully note those differences when considering the cases determined by courts and other tribunals.
17. The core of the dispute over ‘indirect discrimination’ comes down to the application of section 7(2) referred to above and whether the Policy was a ‘reasonable’ response within the meaning of sections 8(2) and 8(3) of the DA, to the circumstances of the ANU Medical School and the ACT.
Evidence previous given and noted in the interim decision
18. In the previous hearing an uncontentious chronology of relevant facts was established. That chronology from the interim decision read:
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.
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.
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.
19. The interim decision at [32]-[43] contained an overview of the regulatory system for medical practitioners in Australia, drawn largely from the evidence of Professor Bowden and Ms Corey who both testified for the respondent:
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 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.
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.
20. The Tribunal has had regard to:
a) the HRC’s determination of 1 May 2014 and her referral to the Tribunal of 9 July 2014 with attachments (Exhibit 2), including the response of Dr Brown on behalf of the respondent;
b) the applicant’s complaint to the Tribunal (Exhibit 1);
c) the statement of Professor Bowden of 7 October 2014 with annexures including the COAG Communique of 14 July 2006 said to be the genesis of the Policy and the minutes of the Australian Health Minister’s Advisory Committee of 18 December 2013;
d) the respondent’s response of 9 October 2014 to the applicant’s complaint;
e) the statement of the applicant dated 5 May 2015 with annexures (Exhibit 3);
f) the statements of Professor Bowden dated 25 May 2015 and 7 October 2014 (Exhibit 6) with annexures;
g) the statement of Ms Corey dated 25 May 2015 with annexures (Exhibit 7); and
h) the first amicus submission from the HRC dated 12 June 2015.
21. The HRC determination of 1 May 2014 found that there may be a case of indirect discrimination but there was insufficient evidence before the HRC on the ‘reasonableness’ of the exclusion of overseas trained doctors for any determination to be made.
22. The response of Dr Brown of 6 December 2013 to the HRC was appended to Dr Wang’s statement to the Tribunal. The only basis advanced by Dr Brown for excluding overseas trained doctors was that there was an oversupply of local graduates. There was no reference to any other basis for the Policy. Dr Brown also affirmed “Mr Wang is not eligible to apply for an RMO position in the ACT (or in any other jurisdiction).”
23. Dr Wang’s statement of complaint to the Tribunal outlined his educational and clinical background per [18] above. He set out the basis of his complaint of discrimination based on his race and the losses he has suffered from being excluded from pursuing his medical career. He referred to his unsuccessful efforts to obtain a second year internship equivalent and the rejection of these applications also arising from the application of the Policy. Dr Wang initially included ‘age’ discrimination as an additional basis for his complaint but did not press it.
24. In his statement of 7 October 2014 Professor Bowden:
a) reviewed the system of medical regulation in Australia including for overseas trained doctors per [19] above;
b) explained the existence of three ‘pathways’ for overseas trained doctors being the ‘competent authority pathway’, the standard pathway and the ‘specialist pathway’. The competent authority pathway only relates to agreements with the corresponding Medical Councils of the UK, Canada, US, NZ and Ireland. Dr Wang is not registered with any of these bodies and so he is only eligible for the ‘standard pathway’ in Australia which requires an internship;
c) reviewed the history of the development of the Policy;
d) set out the terms of the Policy;
e) explained that the ACT does not have the economic capacity to create new internships for overseas trained doctors. The Tribunal notes that the creation of additional internships is not the issue in the present case;
f) noted Dr Wang’s ‘difficult position’ and said that “there are no reasonable options open to him in the Territory”; and
g) noted there is nothing to prevent Dr Wang from enrolling in an Australian undergraduate course pointing out that there are many overseas students that do so.
25. The COAG Communique of 14 July 2006 annexed to the statement of Professor Bowden dealt with the issue of oversupply of doctors in Australia that apparently existed at that time. It speaks of economic issues in providing a sufficient supply of doctors in Australia and of the role of the States and Territory in providing internships as part of their training. The only passage dealing with overseas trained doctors says:
COAG also agreed that health ministers will implement initiatives to establish by December 2006 a national process for the assessment of overseas trained doctors.
26. The minutes of the Australian Health Minister’s Advisory Council (AHMAC) issued 18 December 2013 appended to Professor Bowden’s statement shows:
a) there were inconsistencies in internship priorities between the States and Territories with a call for harmonisation;
b) the discussion was about the economics of training doctors and there is no mention of any consideration of the intrinsic suitability of any class of graduate, including that of overseas trained doctors; and
c) the issue of overseas trained doctors was raised. The minutes record that such graduates that go through the AMC process need a year of practical supervision but do not need to undertake supervised practice in an intern position. On this premise it was proposed to exclude these people from the internship priority lists.
27. The Tribunal notes that the stated position in the AHMAC minutes is at odds with the other evidence in this case and with the fact that Dr Wang completed the AMC examinations but was still required to undertake an internship. The AHMAC minutes did not consider or propose that overseas trained doctors should not be allowed to practice in Australia or be excluded from any necessary supervision for that purpose.
28. In its outline of submission filed on 9 October 2014 the respondent set out the uncontroversial facts, the relevant legislation and an overview of the regulatory system for medical practitioners, the substance of which is set out above. The respondent argued that:
a) the DA contains differences in drafting to the equivalent legislation in other jurisdictions. In particular there is no comparative test of discrimination in the DA;[2]
b) the word ‘because’ in section 8(1)(a) and (b) connotes a causal test that requires only that the discriminatory motive be “not a trivial or insubstantial reason or ground”;[3]
c) it is not necessary that the respondent intended its actions to be discriminatory or a breach of the DA;[4]
d) the true basis for the Policy is “that Australian graduates are specifically trained for the Australian medical system and represent the best return on investment for the Australian community” (per Professor Bowden);
e) the decision of the HREOC in Siddiqui v Australian Medical Council (2000) EOC 93-059; and on appeal in Australian Medical Council v Wilson [1996] FCA 1618 is on point notwithstanding the different statutory language in the Racial Discrimination Act 1975 (Cth) (RDA), where the Federal Court and held that a condition imposed on the basis of the location of the university from which medical students graduated is not one based on ‘race’;
f) relying on Wilson “it is submitted that this case…does not raise any implication that the system of medical education is anything other than a bona fide system of ensuring the quality of medical graduates”;
g) the submission says “nor is there any evidence that people of the applicant’s …ethnic background (…or otherwise born outside Australia) are at a disadvantage in applying for medical school because of their race…”;
h) the ‘reasonableness’ of the Policy is in part underpinned by the COAG agreement and the political need for the ACT to conform to that agreement; and
i) there are a limited number of internships and an excess number of applicants for those positions; preference has to be given to local ANU graduates because they are better trained for ACT conditions and have been trained at public cost; the Policy provided the “best return on investment for medical training for both the Commonwealth and State and Territory governments…”.
29. The Tribunal notes the respondent’s submissions at [28f] and [28i] above that local ANU graduates are ‘better trained’ for ACT conditions and provide better quality service in the ACT than those trained interstate or internationally. This submissions necessarily connotes that:
a) ANU graduates are better trained for local circumstances than are graduates from Sydney University, Newcastle University, Melbourne University, Oxford University, Harvard University etc; and
b) the least meritorious of new ANU graduates are better trained for local ACT conditions than is the most experienced Noble Prize winning graduate from any and all other universities in Australia and the world.
30. Dr Wang filed a statement of 5 May 2015 which was confined to the recitation of his personal history consistent with that set out above.
31. Dr Wang filed a statement of 5 May 2015 by Dr Kevat which basically addressed his article ‘Emerging inequality and potential unconstitutionality- the case for reform of the intern priority system’ (2013) 198 Medical Journal of Australia (6). In this article Dr Kevat argued that the Policy was parochial and driven by administrative convenience for the relevant administrators of the internship programs:
The priority system, whilst administratively convenient, is inequitable, potentially unconstitutional and inconsistent with the medical school selection policies and recent registration changes facilitating free movement of medical professionals nationwide.
The priority system generally means that even the most meritorious interstate candidates cannot be selected for internship positions until the least meritorious local candidate is selected……..
32. In his statement of 25 May 2015 Professor Bowden rejected the assertion of Dr Kevat that the Policy was motivated by administrative convenience for the medical administrators. Professor Bowden did not deny that there was a collateral gain for the administrators from the Policy but it was said not to have been the intention of the Policy.
33. Professor Bowden asserted that the motivation of the Policy arose from a recognition that the undergraduate training in Australian universities better equipped new medical graduates for practice in Australia than did years of experience of practitioners in other countries. Indeed Professor Bowden went so far as to assert that there were subtle differences in hospital and medical administration even between the States and Territories of Australia and this accounted for the Policy and its interstate equivalent allowing States and Territories to give priority to graduates from universities within their own State or Territory over those of other States and Territories. Professor Bowden does not say what these subtle differences were or how this assertion fits with the existence of the national Medicare regime, national private health insurance regimes, the national regulations of therapeutic goods and the national regulation and accreditation of medical practitioners.
34. Professor Bowden said that the recent clinical experience of new graduates made them a preferred applicant in the Australian hospital system to overseas trained doctors irrespective of the experience of the latter. Presumably the recent clinical experience of new graduates referred to are the placements that those students have undertaken as undergraduates. Bearing in mind that the Policy excludes overseas trained doctors who may have been in lengthy clinical practice to the point in time of applying for an internship under the Policy; the assertion of Professor Bowden is that the few clinical placements of an Australian undergraduate is more valuable clinical experience then any number of years of current clinical practice by an overseas trained doctor.
35. Professor Bowden said that since the glut of new medical graduates in 2013 the “recency of an Australian graduates clinical practice is likely to remain a critical factor in the allocation of internship to Australian graduates” over that of overseas trained doctors.
36. Professor Bowden commented on Dr Wang’s lack of recent clinical experience and says that this was ‘not insignificant’ in the decision not to offer an internship. But Professor Bowden also acknowledged that no overseas trained doctor of any length or recency of clinical experience or standing, has any realistic chance of succeeding in a placement from their category eight position.
37. The statement of 25 May 2015 by Ms Corey indicated that she was the Director Medical Support, Credentialing, Employment and Training Unit of ACT Health. Her statement set out the history of Dr Wang’s application in 2014. There were 463 applications for 96 positions of which 78 were from ANU graduates and 135 were from overseas trained doctors; the remainder were from other Australian universities. The statement set out how the Policy was administered. The offers of internships included all the ANU graduates and 18 other Australian graduates (down to category 5). No New Zealand or overseas trained graduates were offered a position.
38. Ms Corey’s statement makes it clear that Dr Wang and the other overseas trained graduates were not considered because they were in category eight of the Policy. There is no suggestion that there were excluded on merit grounds.
39. Ms Corey expresses the opinion that even if a wholly merit based system had applied, Dr Wang may still not have succeeded due to the gap in his clinical experience since 2001. She goes on to express the opinion “in short the junior medical officers recruited for internship in 2014 were all better than Mr Wang because of their more recent clinical experience.” She says “notwithstanding his book learning because of the shortage of intern positions across Australia, Dr Wang’s time away from clinical practice makes him a less preferred applicant than a recent graduate with recent clinical experience.”
40. It is not clear to the Tribunal what the reference to ‘book learning’ of Dr Wang is a reference to. It may be a reference to the AMC exams that Dr Wang was required to undergo or to the other cross over course that he did. If it is a reference to his uncontested years of clinical practice in China then the Tribunal would find this to be a demeaning description of Dr Wang’s history.
41. It is not clear what Ms Corey means by use of the word ‘better’. It appears to imply that the number of short term clinical placements of Australian undergraduates during their studies is more valuable experience then the real life experience of a long practising specialist.
42. Ms Corey justified this assertion with an entirely inapposite example. She says that if a practitioner of nine years current clinical experience were competing with Dr Wang who had 15 years clinical experience but no clinical experience in the last 12 years, then the former would be preferred. So much may be accepted by the Tribunal but this comparison has no relevance when the comparator to Dr Wang is a new graduate with no clinical experience other than some undergraduate placements. In fact the choice of the comparator with nine years clinical experience appears to be a retreat from the reliance upon the comparison with undergraduate clinical placements and is a recognition of the value of actual clinical experience in practice.
43. Ms Corey expressed her sympathy with Dr Wang and her ‘unease’ with his predicament and that of other overseas trained doctors. She said the reality was that with each year passing the chances of Dr Wang ever being able to practise in Australia recede.
44. Ms Corey referred to the cost to the ACT if more internships were created for overseas trained doctors. It is not clear whether she was saying this is an additional cost that would be incurred if overseas trained doctors were awarded one of the existing 96 positions or whether she was only considering the creation of additional positions. The latter alternative has no relevance to the issues in this case.
The involvement of the HRC
45. The HRC was invited to appear as amicus curie in the resumed proceedings. The HRC’s submission filed on 12 June 2015 addressed the ‘reasonableness’ issue in the construction of sections 8(2) and (3) of the DA and the relevance of section sections 30 and 40B of the Human Rights Act 2004 (HRA), in a most comprehensive and helpful manner.
46. The HRC submitted that once the principle of interpretation set out in section 30 of the HRA was applied to section 8 of the DA the better construction was:
a) the onus is on the respondent (ACT) to show that their conduct was ‘reasonable’. The Commissioner also drew attention to section 70 of the DA to this effect;
b) the reasonableness test is an objective one;
c) reasonableness is a question of fact determined by taking into account all relevant circumstances of a case; these include but are not limited to the factors in section 8(3) of the DA;
d) the lawfulness of the conduct of the respondent must be considered, either as part of considering the factors in section 8(3) or as another relevant consideration;
e) it is not necessary for the Tribunal to be able to point to better policy as a prerequisite to a finding of unreasonableness;
f) to establish reasonableness it is not enough only to show a decision has a logical or understandable basis;
g) the onus is on the respondent to show that it has properly considered the impact of section 40B of the HRA; and
h) the Tribunal “should be slow to find that requirements with a discriminatory impact are reasonable, consistent with the principle that when construing legislation designed to protect human rights, courts have a special responsibility to take into account the purpose and objects of the legislation …and accordingly should construe exemptions and provisions restricting rights narrowly.”[5]
47. The HRC drew attention to the decision of the New Zealand High Court in Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 which is not far from the facts of the present case. This case is considered in more detail below. In this case the Regional Health Authority developed a policy that differentiated between medical practitioners within their geographic area who had medical qualifications from a New Zealand university and those that did not. The policy conferred the right to access Medicare-like subsidies for the treatment of their patients to the former but not the latter. The New Zealand High Court held that the policy was unlawful as it discriminated indirectly on the grounds of national origin.
48. Justice Cartwright observed:
Regardless of the intention behind the act or of the body imposing the requirement or condition on a person or group of persons, if the effect is discriminatory in the terms of the Human Rights Act (NZ) then the conduct, practice, condition or requirement will be unlawful…
49. The HRC noted the important difference in the wording of the statutes in different jurisdictions concerning the ‘reasonableness’ test for indirect discrimination. In some jurisdictions including the Commonwealth, the test is framed in a manner in which the discriminatory nature of the requirement or condition imposed is not made out unless the condition or requirement is shown to be ‘not reasonable’. This forms part of the onus that the claimant is required to discharge. This contrasts with section 8(2) of the DA in which the condition or requirement is found to be discriminatory without regard to the reasonableness test and the ‘reasonableness’ arises only as a defence thereafter. Because the ‘reasonableness’ factor is in the nature of a defence or exoneration the onus falls upon the party that raises that defence i.e. the respondent.
50. On 25 February 2016 the HRC filed her second amicus submission in which the she said:
a) Whether the same complaint can amount to both direct and indirect discrimination is a moot question because the question is first asked whether there is direct discrimination and if answered in the affirmative then there is no need to ask whether there is also indirect discrimination.
b) On the authority of Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 the categories of direct and indirect discrimination are mutually exclusive but it is not necessary for a claimant to make an election between the two options.
c) The HRC pointed to the legal and factual difficulties in unravelling direct from indirect discrimination and the international case law that discourages any such attempt as a prerequisite to commencing any complaint.
d) She drew attention to the principles for awarding compensation set out in Kovac v The Australian Croatian Club Ltd [2016] ACAT 4 and that the quantum of compensation should turn on the nature of the disadvantage suffered and not on the species of discrimination found.
Further evidence filed
51. The Tribunal made procedural orders for the filing of further evidence and submissions by the parties. On 7 March 2016 the applicant filed:
a) an undated addendum to his statement of 5 May 2015;[6] and
b) the applicant’s outline of submissions dated 3 March 2016
52. The addendum to the applicant’s statement of 5 May 2015 set out the costs incurred in undertaking the AMC exams and his claimed loss of income:
a) The costs incurred in the AMC exams were $15,600.
b) The loss of income for the calendar years starting 2008 and ending 2014 was $94,608.
53. In his outline of argument of 3 March 2016 Dr Wang:
a) adopted the submissions of the HRC on the issue of indirect discrimination and the ‘reasonableness’ defence;
b) put his case as both direct and indirect discrimination;
c) argued that graduates of Chinese nationality or national origin will generally have obtained their degree from a Chinese university, which is sufficient to constitute both direct and indirect discrimination;
d) argued that it is sufficient that the discrimination is directed to people of non-Australian origin, it does not have to single out particular nationalities;
e) stated that for the purposes of section 8(3)(a) the disadvantage to Dr Wang ‘could not be of greater significance’; at the time he commenced the AMC exams he had every reason to believe that he would be admitted to an internship when he completed those exams. The rules changed only at the point of his completion of the exams. There is no way for Dr Wang to overcome this disadvantage. Enrolling as a new undergraduate in the ANU is not a practicable choice for him in his circumstances; and
f) on the proportionality issue of section 8(3)(c), the gain to the ACT is alleged to be a cost benefit for the funds spent training medical graduates in the ANU and the alleged superior candidature of ANU trained graduates over experienced overseas and interstate trained doctors. Dr Wang submits that there is no costs benefit. On either scenario there is a trained doctor in each of the fixed number internships, without any increase in that number, at no additional cost to the ACT. The ACT would have the gain of the money spent in another jurisdiction in training the selected intern. Dr Wang essentially denies the assumption that all ANU graduates are superior candidates to all overseas and interstate trained candidates and points to the ‘parochial’ nature of the policy with the risk of loss of international perspective in the local medical profession.
54. On 17 March 2016 the applicant filed a further statement from Dr Kevat dated 17 March 2016.[7] Dr Kevat took issue with Professor Bowden’s interpretation of his first statement, in particular Dr Kevat said:
a) Across the States and Territories in 2014 the ACT was the only jurisdiction that imposed a restriction on an internship applicant not being able to apply concurrently for an internship in any other state or territory. If they did so then their application in the ACT would not be considered;
b) Most large hospital received a large number of internship applications and there is an administrative efficiency in not having to consider those that do not conform to the priority system. The administrative efficiency is further enhanced by not having to consider all candidates on their merits;
c) All overseas trained doctors moving through what is known as the ‘standard pathway’ and the ‘competent pathway’ are required by the Medical Board of Australia to undertake supervised internships.
55. On 22 March 2016 the respondent filed:
a) Submissions dated 21 March 2016.
b) List of Authorities.
c) The 2013-14 ACT Budget Papers No 4.
d) Brief to the Minister for Health (ACT) re ‘ACT Priority List for Intern Allocation in 2013’ dated 2 August 2012 (Exhibit 8).
e) Brief to Minister for Health (ACT) re ‘Intern Allocations for 2014’ dated 2 May 2013.
56. The respondent’s submissions of 21 March 2016 addressed a number of matters:
a) The history of the Policy from its inception in COAG in 2006.
b) The number of full fee paying overseas students at the ANU Medical School.
c) The contention that categories of direct and indirect discrimination in sections 8(1)(a) and (b) of the DA are ‘mutual exclusive’ categories[8] which is binding on the Tribunal.
d) The contention that where the condition or requirement under consideration is ‘facially-neutral’ (i.e. racially neutral on their face) then the issue can only be one of indirect discrimination;[9]
e) ‘National origin’ refers to the country of birth and is fixed for life; ‘nationality’ is more akin to citizenship and can change over a person’s life.
f) The Race Discrimination Act 1975 (Cth) does not include ‘nationality’ as part of its definition of ‘race’.
g) The respondent concedes that the imposition of the priority system in the Policy was the imposition of a condition or requirement for the purposes of section 8(1)(b) of the DA.
h) The Policy does not impose any condition on nationality as such but only on the location of the university from which the medical qualifications were obtained and is therefore ‘facially neutral’.[10]
i) Section 7(2) of the DA is intended to catch characteristics that are ‘intrinsic to an attribute’ of section 7(1) that amounts to ‘stereotyping’[11] or that operate as a “proxy for the true basis of direct discrimination.”[12]
j) Section 7(2) does not extend to characteristics that are “unconnected with or divorced from the attribute.”[13]
k) The place of a person’s tertiary education is not intrinsic to their nationality. Selecting this criterion as a point of differentiation is not stereotyping and is not a proxy for their nationality.
l) People of non-Australian nationality do not generally possess a medical degree at all and so the possession of a medical degree or the university from which it was obtained is not a ‘characteristic’ for the purposes of section 7(2) of the DA.
m) The imposition of the Policy is reasonable for the purposes of section 8(2) because it is part of the COAG agreement and because it is part of the ACT “protecting the integrity or viability of its medical education system within the national system.”
n) If students were not assured of an internship they would not enrol at the ANU Medical School.
o) If students did enrol at the ANU but were not given an internship on graduation this would entail financial wastage in their training.
p) The disadvantage to Dr Wang was in ‘large part’ due to his own inaction between 2001-2008.
q) ACT Health is not at liberty to ignore the Policy or depart from it.
r) Section 53E of the Human Rights Commission Act 2005 does not confer power on the Tribunal to award exemplary damages;
s) Section 53E may allow an order for compensation for loss of opportunity in appropriate cases.[14]
t) There is no loss of opportunity if there was no right to be awarded an internship i.e. where the respondent has made no promise and has no obligations towards the claimant.[15]
u) Loss of chance cannot be the subject of damages for personal injuries;
v) The loss of chance or opportunity for Dr Wang arose from his own inaction between 2001-2008.
w) Compensation can be awarded for hurt feeling or humiliation.[16]
x) A range of cases were provided in which compensation was awarded for hurt feelings alone with no psychological injury. In matters within the ACT the awards ranged from a few hundred dollars to $6,000.
y) Section 53E may provide a power to order that Dr Wang be considered for an internship on a merits basis.
Hearing on 24 March 2016
57. The hearing occurred on 24 March 2016. Mr Hassall of counsel appeared for the applicant and Dr Jarvis of counsel appeared for the respondent. Mr Costello appeared amicus curie for the HRC.
58. At the hearing the Tribunal invited the parties to review the paragraphs of the previous interim decision relating to the history of the matter and the facts. There were some minor corrections but nothing of substance. Dr Jarvis did challenge the concept that there had in fact been any evidence at the prior hearing before the interim decision because parties were not sworn or affirmed and the evidence was in the form of a free dialogue between the parties. There was no objection by counsel to this procedure at the interim hearing. The proceedings were sound recorded and the findings were set out in the interim decision which was not the subject of any challenge or appeal on that point. Whatever the legal merits of Dr Jarvis’s challenge, there was nothing of factual substance arising from the prior hearing that was disputed, and in any event the evidence was retaken at the hearing of 24 March 2016 under affirmation.
The evidence of Dr Kevat
59. Dr Kevat gave evidence on affirmation by telephone. He adopted his statements of 5 May 2015 and 17 March 2016 and was subject to a brief cross examination. Dr Kevat testified that he was unaware of any evidence that prospective medical students expect any guarantee of an internship at the end of their undergraduate studies.
Dr Wang’s evidence
60. Dr Wang gave evidence on affirmation and was subject to cross examination. He adopted his statement of 5 May 2015 which relates to the costs incurred in undertaking the AMC exams.
61. He recited his prior history in terms of his statements previously filed in the proceedings. Dr Wang’s job in aged care was for 5-7 days a week to support his family. He earned $21 per hour net or approximately $30,000 net per year in this employment.
62. Dr Wang became an Australian citizen in 2007.
63. In 2008 Dr Wang’s wife returned to work and he ceased work and commenced studying for the AMC exams. The family was supported by the wife’s salary, the adult daughter’s salary and other family members.
64. Dr Wang testified that he had suffered depression with related behavioural changes and psoriasis from the stress of the position he has now found himself in, namely having spent the time off work and the money on the AMC exams, but still unable to obtain an internship to open the way for his registration. He owes money to family members.
The evidence of Professor Bowden
65. Professor Bowden, Director of Post Graduate Medical Education of ACT Health, gave evidence on affirmation. He adopted his statements of 7 October 2014 and 25 May 2015.
66. Professor Bowden testified that he was involved in the policy development for the increase in the number of interns in 2013 from 72 to 97 in 2014.
67. Professor Bowden testified that the purpose of the AMC exams was to provide some assurance that overseas trained doctors had sufficient familiarity with the Australian medical system to be able to operate effectively at about the same level of a recent Australian graduate. An AMC process was not sufficient in its own right for registration. The overseas trained doctor in Dr Wang’s circumstances still needed to undergo a supervised internship to register as a medical practitioner in Australia.
68. Professor Bowden spoke about the influx of new locally trained medical graduates in the last two years. This has particularly coincided with the first of the graduates from the ANU Medical School which commenced in 2004. He said that if Dr Wang had applied for an internship “a year or two earlier” (i.e. 2011-2) “it’s almost certain that he would have been employed.”[17]
69. He said that there was an understanding that in circumstances of oversupply of medical graduates that “the patients were best served by having people trained in the environment that they were going to work.”[18]
70. He reviewed the history of a COAG resolution to increase funding for local medical schools to promote more local graduates. He said that under the Policy it was open to the ACT to reserve internships in ACT hospital for ANU graduates. This was the origin of the Policy that put ANU graduates in category 1, overseas graduates at the bottom and other Australian university graduates in between. He testified that it was unlikely that an overseas trained doctor could now succeed under the Policy that existed in 2014.[19]
71. He informed the Tribunal that the eighth category for overseas trained doctors had been removed from the internship policy for 2015 such that they were now not even to be considered at all.
72. Professor Bowden testified that the internship policy was used to assess any vacancies that might arise at the second year internship level.[20] He was asked in cross examination what would happen if an overseas trained doctor applied for a second year vacancy that was “outstanding” and “better than the local graduates” on a merit consideration. Professor Bowden said “they would not get a position…”.[21]
73. In cross examination Professor Bowden admitted that there was no logical reason why interns could not be selected on merit[22] but this was a matter of politics[23] and economics.[24] He was bound to apply the Ministerial internship policy.[25]
74. Professor Bowden testified that it may be possible for Dr Wang to obtain an internship or equivalent placement in rural or remote Australia but this was a matter for Dr Wang and his family and not something that Professor Bowden had any direct knowledge of.
75. Professor Bowden said that even if Dr Wang had been considered on his merits as a medical graduate and doctor, the fact that he had not practised since 2001 would have been a relevant and negative consideration.
76. In an interesting exchange between Prof Bowden and Dr Wang over the bar table, Prof Bowden put to Dr Wang that it was not his overseas trained status that precluded his successful candidature in 2014 but rather it was an influx of new ANU graduates who were ‘clearly more ready to work than you were..’. [26]The Tribunal finds this statement by Prof Bowden to be difficult to accept for three reasons:
a) Prof Bowden had already testified that the 8th category classification for overseas trained doctor made it unlikely that they could or would succeed, and in fact none did;
b) He had testified that even an outstanding overseas trained candidates would not be considered on their merits;
c) It is far from obvious that an experienced specialist neurologist of Dr Wang’s years and his additional years of experience in age care in Australia with the additional studies, would not make him as ‘work ready’ as a wholly inexperienced new graduate.
77. Professor Bowden said that an intern salary in 2014 was about $60,000-$70,000 pa without allowance for overtime and increases by about $5,000-$10,000pa. As a registrar at six years post graduate the base salary was about $85,000 gross.
The evidence of Ms Corey
78. Ms Corey gave evidence on affirmation. She adopted her statement of 25 May 2015. Her evidence went to the policy and financial background of the internship policy which was not challenged in cross examination.
The applicant’s submissions
79. Mr Hassall opened his submissions with the contention that in this matter the facts were not really in dispute. The issue was one concerning the construction of section 7(2) of the DA. He submitted that there was no dispute over the fact that the respondent had treated the applicant in a disadvantageous manner in terms of his application for employment with the respondent in accordance with section 10 of the DA.
80. He put the applicant’s case on the basis of direct discrimination and, in the alternative, indirect discrimination.
81. Mr Hassall submitted that direct and indirect discrimination formed separate and distinct causes of action that did not overlap. The Tribunal put the view that indirect discrimination comes in degrees of directness and would also include that which falls within the category of ‘direct discrimination’ i.e. that indirect discrimination is a larger class than direct discrimination which includes direct discrimination. A claimant would however first attempt to satisfy the test of direct discrimination because it did not admit to the defences that were open to claims of indirect discrimination. It is only if the direct discrimination claim fails that it would be necessary to then go to the indirect discrimination category.[27] Mr Hassall submitted that the issue was determined by authority and that to the extent that the Tribunal did not see the categories of discrimination as being ‘mutually exclusive”, the Tribunal’s view on this matter was wrong.[28]
82. In his submission the issue starts with the proposition that section 7(1) commences with the concept of an ‘attribute’ which includes ‘race’. ‘Race’ is defined in the Dictionary to the DA to include the applicant’s ‘nationality or national origin’ i.e. being Chinese. So being of Chinese national origin is the ‘attribute’ in question.
83. The applicant puts the submission more broadly and says that for present purposes the attribute is being ‘non-Australian’ i.e. a race and hence a national origin that is other than Australian. Section 7 is addressing discrimination based on a class of people who possess the common attribute of being non-Australian national origin.[29]
84. The extended definition of ‘attribute’ in section 7(2) includes the concept of a ‘characteristic’ of people with the particular attribute (i.e. being non-Australian). It draw attention to a ‘characteristic’ that people with that attribute ‘generally have’ or are ‘generally presumed to have’. It is not one that they necessarily must possess.
85. The applicant contends that a relevant ‘characteristic’ is not limited to mere physical characteristics such as skin colour, or height or language etc. It is a broader concept and also catches the social and cultural norms or characteristics of people of the other national origin in question, including without being limited to their educational background.
86. The contention is that discrimination based on some social or cultural characteristics that people of a particular national origin ‘generally’ have, is just discrimination by reference to a proxy for their non-Australian national origin i.e. to single out some social or cultural characteristic that people of a particular national origin generally possesses is little different to discriminating directly upon the basis of their national origin.
87. People of Chinese national origin generally have been educated in their home country. People of Chinese national origin with a medical degree generally obtained it from a Chinese university. The same is true of people of other non-Australian nationalities.
88. Contextually, the present matter is about the employment of medical graduates under section 10 of the DA. It is not about being Chinese or any other non-Australian national origin per se. The relevant characteristic in question that has formed the basis of the alleged discriminatory treatment is the location or nationality of the university from which they graduated.[30]
89. The applicant provided an analogy of the hypothetical case that the Policy also singled out medical graduates from Catholic universities in Australia or even in the ACT, and relegated them to the last category of the Policy. Whilst it is not necessarily the case that every graduate of a Catholic university is of the Catholic faith, it may ‘generally’ be presumed to be so. Thus excluding students based only the religious affiliation of the university attended would be just a proxy for excluding them on the basis of their personal actual or presumed religious affiliation or belief and would be a breach of section 8 of the DA. There is no difference in principle in making the assumption that graduates of a Catholic university are generally of the Catholic faith and assuming that graduates of Chinese (or other non-Australian) universities are generally of Chinese (or other non-Australian) national origin.
90. In relation to indirect discrimination and the ‘reasonableness’ defence in section 8(2), Mr Hassall directed attention to the relevant criteria in section 8(3) which requires consideration of:
(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.
91. He submitted that the respondent’s reasonableness defence was based on the alleged cost effectiveness of the Policy and the alleged outcome that it produces higher quality medical treatment[31] which, if true, can at best be relevant to criterion 8(3)(c).
92. The resultant disadvantage to the applicant was very substantial. He was held out of his chosen profession to which he had devoted many years. He had wasted the time and money involved in the AMC exams.
93. In terms of criterion 8(3)(b), it was submitted that Dr Wang had no capacity at all to cause any change in the Minister’s Policy and therefore no capacity to mitigate his losses. The option of enrolling as an undergraduate at the ANU Medical School and the costs therefore at his age was not practicable.
94. In terms of criterion 8(3)(c) Mr Hassall argued that the ‘disadvantage’ in question was the disadvantage caused to Dr Wang and other overseas trained doctors and not the disadvantage caused to the ACT. The criterion asked whether the purported policy goals of the Policy were proportional to the disadvantage to Dr Wang and others.
95. The purported gains from the Policy were said to be ‘parochial’ and to do with the ease of administration of the internship scheme.[32]
96. Mr Hassall noted that it was within the Minister’s capacity to amend the Policy to provide a merit based avenue and this had in fact been the situation before 2013 and could be again.
97. He noted the obvious point that the fact that other jurisdictions may have adopted some version of the Policy did not mean that the Policy was not unlawfully discriminatory in the ACT or elsewhere and provided no lawful justification in the ACT for its maintenance.
98. On the issue of compensation sought, Mr Hassall based the claim on:
a) the costs incurred in the AMC exams including time taken off work in 2009-2012 to study for the AMC and related exams. A list of such costs had been filed and served;
b) general damages for distress and suffering including embarrassment within the family context; and
c) loss of the opportunity to be employed as a practising doctor. Mr Hassall noted the evidence of Professor Bowden that interns started at about $60,000.
The respondent’s submissions
99. There was some prolonged discourse between Dr Jarvis for the respondent and Tribunal concerning whether the respondent conceded the fact that it was ‘generally’ the case that medical graduates of Chinese national origin or nationality (or any non-Australian national) obtained their qualifications from a university of their country of origin. Dr Jarvis made it plain that the respondent did not agree that this question was the relevant question for the Tribunal to consider, but without derogating from that position, it was a conceded fact that people generally obtained their medical qualifications from their country of origin.[33]
100. The respondent contended that the Tribunal was in error in construing the relevant ‘characteristic’ within the meaning of section 7(2) of the DA as extending to the university from which the medical degree was obtained.[34] The relevant characteristic was said to be whether people of Chinese (or other non-Australian) nationality possess a medical degree at all.[35] It was contended that it is not the case that it is a general characteristic of Chinese nationals, or any non-Australian nationals, that they have a medical degree or any degree at all and therefore the question of the location of the university never arises.[36] Obviously the Tribunal does not argue with the proposition that people of non-Australian national origin or nationality do not generally possess a medical degree (or any degree),[37] but this simply begs the question of what is the relevant ‘characteristic’ upon which the discriminatory actions have to be assessed.[38]
101. Dr Jarvis also submitted that the categories of direct and indirect discrimination were separate and distinct or ‘mutually exclusive’. He took the Tribunal to authority on that point which was said to support his contention and be binding on the Tribunal.
102. Dr Jarvis argued that unfavourable treatment based on the nationality of the university from which a medical degree was obtained was on its face, neutral (‘facially neutral criterion’). He said this criterion was not directed to race or national origin.[39] The Tribunal questioned whether to specifically nominate non-Australian universities for unfavourable treatment is facially neutral at all when considering the attribute of nationality or national origin.
103. Dr Jarvis submitted that the Policy does not refer to national origin or nationality in that it does not refer explicitly to the national origin or nationality of the graduates themselves but only to the national location of their home university. He argued that a student might graduate from a university in a country other than their home country. It might even be that an Australian national obtains medical qualifications from a university of another country; or a national of another country may graduate from the ANU Medical School. He said that all these considerations show that the Policy does not discriminate on the basis of the national origin or the nationality of the medical graduate.[40] In the Tribunal’s view, this submission demonstrates is that there may be exception to the conceded fact that generally people obtain their medical qualifications from a university of their country of origin.
104. Dr Jarvis argued that the Policy was motivated by the desire to protect the educational opportunities of local students and the viability of the ANU Medical School.[41]
105. Dr Jarvis drew attention to the High Court decision in Purvis v NSW (2003) 217 CLR 92 where it was observed by two members of the Court that the ‘characteristic’ extension of the kind in section 7(2) of the DA was intended to remedy the mischief of ‘stereotyping’ and catches characteristics that are “used as proxies for the true basis of the direct discrimination.” He said that this is not the present case.
106. Dr Jarvis did not address the evident concern raised by the Tribunal that the unqualified assumption that an Australian or ACT patient would receive better care from a local new graduate than from an experienced overseas trained doctor, is precisely of the stereotyping kind. It admits of no true merit consideration; and to single out the graduates of all overseas universites for unfavourable treatment is to act on a general characteristic that is proxy for the non-Australian nationality or national origin.
107. Dr Jarvis referred the Tribunal to the NSW case of Philip v NSW [2011] FMCA 308 in which he said it was held that discriminating on the basis of the accent of a man of Indian origin was not direct discrimination based on a factual finding that there are people of Indian nationality that do not have an accent. The NSW Anti-Discrimination Act 1977 (ADA) does contain the equivalent of section 7(2) of the DA and so a finding of the nature described immediately above would be surprising to the present Tribunal. A perusal of the case shows that the case was not determined on this basis but rather on the basis that the applicant’s command of English did not match the job description.
108. Dr Jarvis raised cases determined under the Commonwealth Race Discrimination Act 1975 (RDA) but that Act does not contain any equivalent of section 7(2) of the DA. Because of this important difference, findings of fact made under the RDA have to be treated with care in their application to the DA.
109. Dr Jarvis submitted that the Policy was necessary to protect the viability of the ANU Medical School.[42] The Tribunal readily accepts that there may be financial and other advantages to the ANU Medical School. At best this can be relevant only as a consideration in the reasonableness defence of section 8(2) to indirect discrimination. As the New Zealand High Court in Northern Regional Health Authority case so clearly indicated, a mere parochial gain of some kind whether subjectively or objectively, is not a defence to direct discrimination and in terms of indirect discrimination does not of itself render a policy ‘reasonable’.
110. Dr Jarvis argued that Dr Wang’s present predicament was of his own causing due to the time he took to do the AMC exams. Dr Wang completed all the AMC exams in 2011 and English occupation exam in 2012. In 2013 he applied for the next intern intake which was for 2014. Had he finished the AMC exams a year or two earlier then he would not have been caught in the Policy and Professor Bowden testified that he would “almost certainly have obtained an internship.” The Tribunal does not accept that the decision of the respondent and the Minister to adopt this Policy is in any sense Dr Wang’s fault. Dr Wang gave evidence of the measures he had taken to bring himself to the point where he could have applied for the internship, and the Tribunal sees no fault or justified criticism of him. The history of Dr Wang’s efforts to gain registration whilst supporting his family, doing the AMC exam and studying English is to be admired and not criticised.
111. Dr Jarvis argued that Professor Bowden and his colleagues were bound to apply the Minister’s Policy and hence there was no capacity for the respondent to ameliorate the disadvantage to Dr Wang. The Policy had no statutory status and was a policy adopted by the Minister which the Minister was free to amend. The argument that Professor Bowden was obliged to implement the Policy is irrelevant. The present claim was brought against the ACT and not Professor Bowden.
112. Dr Jarvis argued that the Policy had its genesis in COAG and that this imposed practical political constraints on departing from the Policy. The Tribunal noted that the COAG minutes in evidence did not include any requirement to put overseas trained doctors in the last priority position and it appeared from those documents that the ACT was the only jurisdiction that adopted this approach which was conceded by Dr Jarvis.[43]
113. It was argued that other States were in fact simply excluding overseas trained doctors entirely from consideration and hence the absence of any reference to overseas trained doctors in their policies. It was said that this was the basic tenor of the COAG agreement. In 2015 the ACT has also deleted reference to overseas trained doctors from the Policy in adopting the approach of these other States.[44]
114. On the issue of compensation Dr Jarvis pointed to the fact that part of the claim by the applicant was for a loss of opportunity to practise as a doctor. He pointed out that even if the Policy had not treated Dr Wang disadvantageously, there was still no guarantee that he would have been selected on a merit basis because of the time he had been out of clinical practice from 2001.
The applicant’s reply
115. Mr Hassall submitted that there was no logical impediment to the ACT recognising the unfairness in the Policy and taking ameliorating steps. A mere desire to remain in step with the other jurisdictions is not a basis in law or ethics to commit to a discriminatory policy and nor is the prospect of some parochial collateral gain. If the Policy is unlawful, he submitted, then the ACT should not implement it.[45]
116. The Tribunal put to Mr Hassall the proposition that Dr Wang’s time out of clinical practice was a facially neutral relevant consideration in any merits selection process and asked how that should be factored into any compensation order. There was no substantive response to the question.
Tribunal summing up
117. At the end of the hearing the Tribunal summarised for the parties its understanding of the issues to which there was no dissent expressed. The issues to be determined were:
a) both direct and indirect discrimination;
b) whether direct and indirect discrimination are mutually exclusive categories;
c) the core of the dispute is that concerning the construction of the term ‘characteristic’ in section 7(2) of the DA and whether it extends to a person’s educational background including where relevant, their medical educational background; and
d) on the issue of indirect discrimination, the ‘reasonableness’ of the Policy in terms of its intended gain relative to the disadvantage caused to Dr Wang and other overseas trained doctors.
Legislation
118. The DA prohibits discrimination on the grounds of certain attributes including race. The Dictionary to the Act provides that ‘race’ includes ‘colour, descent, ethnic and national origin and nationality’ (emphasis added).
119. Section 7 of the DA relevantly provides:
(1) This Act applies to discrimination on the ground of any of the following attributes:
...
(h) race;
...
(2) In this Act, a reference to an attribute mentioned in subsection (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.
120. Section 8 of the DA provides:
(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—
(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.
121. Section 10 of the DA provides:
10 Applicants and employees
(1) It is 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.
(2) It is unlawful for an employer to discriminate against an 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 benefit associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
122. Section 4A(2) of the DA provides:
(1) In this Act:
doing an act includes failing to do the act.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
(2) In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
123. Section 70 of the DA provides:
If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be unlawful under part 3, part 5, section 66 or part 7, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.
124. Section 53E of the Human Rights Commission Act 2005 (HRCA) provides:
(1) This section applies if—
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
125. The HRA aims to protect and promote human rights in the Territory. 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.
126. Section 27A of Part 3A HRA provides that everyone has the right to access further education and vocational and continuing training, and to enjoy those rights without discrimination.
127. In so far as it is possible, territory laws should be interpreted in a way that is compatible with human rights.[46]
128. 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.[47]
129. Section 40(1) of the HRA states that ‘public authority’ includes:
(1) Each of the following is a public authority:
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a Minister;
(e) a police officer, when exercising a function under a Territory law;
(f) a public employee;
(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).
130. 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:
(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—
(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.
131. Section 53 provides that an individual is qualified for general registration if:
53 Qualifications for general registration
An 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.
132. Section 66 provides for limited registration for the purpose of undertaking postgraduate training or supervised practice. The period of limited registration is limited to 12 months and may not be renewed more than three times.[48]
133. The Act also establishes the AHPRA[49] and a number of National Boards including the Medical Board of Australia.[50] 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.[51] A National Board may also accredit programs of study which meet approved accreditation standards.[52]
Comparison with the relevant provisions of the equivalent Commonwealth, NSW and Victorian statutes to which the Tribunal has been referred
134. The RDA is set out below. It contains the concept of direct discrimination in section 9(1) and indirect discrimination in section 9(1A). The definition of the ‘attributes’ or grounds of racial discrimination are embedded within section 9(1). It has no equivalent of the extended definition of ‘attribute’ that appears in section 7(2) of the DA and does not otherwise embody any test of whether the act, condition or requirement under consideration is one ‘generally’ presumed to be possessed by a person of a particular racial background. This fact limits the relevance of decision under the RDA for present purposes.
135. The RDA embodies the ‘reasonableness’ test for indirect discrimination in section 9(1A)(a) in the form of the requirement that the action, requirement or condition first be shown to be ‘not reasonable’ before discriminatory conduct is shown to exist:
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
136. The operative provisions of the RDA for discrimination in employment contain the comparative tests of treating the person with the racial attribute “less favourably than other persons in the same circumstances.”
137. Section 5 of the Sex Discrimination Act 1984 (Cth) (SDA) contains a definition that is similar to that of section 7 of the DA. Section 5 of the SDA has both direct discrimination (section 5(1)) and indirect discrimination (section 5(2)); it also contains the extended definition of an attribute or ground in section 5(1)(b) and (c). It embodies a comparative test that does not appear in the DA (ACT):
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
138. Section 7B of the SDA contains a ‘reasonableness’ defence in the same terms of the DA which operates only after prima facie indirect discrimination under section 5 has been found:
7B(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
139. Sections 5 and 6 of the Disability Discrimination Act 1992 (Cth) (DDA) define direct and indirect discrimination on the grounds of a disability with a comparative test. Neither definition contains any equivalent to the extended definition of attribute in section 7(2) of the DA. Section 4 of the DDA goes some way in this direction in catching a disability that is imputed to a person. It does not go so far as to catch characteristics that are generally imputed to people with disabilities and so has no substantial equivalent to section 7(2) of the DA.
140. The ‘reasonableness’ test in section 6 of the DDA is contained in section 6(3) and operates in the mode of a defence or exoneration, as the reasonableness test in the DA i.e. only after indirect discrimination has otherwise be shown to exist:
6(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition
141. Section 7 of the Anti-Discrimination Act 1977 (NSW) (ADA) deals with the different grounds (or attributes) of discrimination separately. Section 7 addresses racial discrimination and does contain both direct discrimination (section 7(1)(a) and (b)) and indirect discrimination (section 7(1)(c)) and the equivalent of the extended definition of section 7(2) of the DA found in section 7(2) of the ADA. It contains a comparative test. Section 7(1)(c) embodies the ‘reasonableness’ test as part of that which must be shown to exist before discrimination is found:
(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
142. Section 24 of the ADA also contains direct discrimination (section 24(1)(a)) and indirect discrimination (section 24(1)(b)). It contains a comparative test. It contains the equivalent of the extended definition in section 24(1A). Section 24(1)(b) embodies the ‘reasonableness’ test as part of that which must be shown to exist before discrimination is found:
(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of sex if the perpetrator:
(a) on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
143. Section 49B of the ADA defines discrimination on the grounds of disability in the same terms as immediately above.
144. The current Equal Opportunity Act 2010 (Vic) (EOA) and its predecessor, the Equal Opportunity Act 1995 both had direct discrimination[53] and indirect discrimination.[54] Both had the equivalent of the extended definition of attribute in section 7(2) of the DA:
7(1) Discrimination means—
(a) direct or indirect discrimination on the basis of an attribute; or
(b) a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.
(2) Discrimination on the basis of an attribute includes discrimination on the basis—
(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b) of a characteristic that a person with that attribute generally has;
(c) of a characteristic that is generally imputed to a person with that attribute;
(d) that a person is presumed to have that attribute or to have had it at any time.
145. The EOA is similar to the DA (ACT) in that it does not contain any comparative test but only requires ‘unfavourable’ treatment by reason of the attribute:
8(1). Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.’
146. Indirect discrimination is defined in section 9 and contains a test framed in terms of the actions, requirement or conditions being ‘not reasonable’ but section 9(2) then expressly provides that the person imposing the requirements bears the onus of showing that it is ‘reasonable’:
(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.
Jurisdiction
147. The tribunal is a statutory body with powers and jurisdiction vested in it by legislation. ACAT is authorised to hear and determine complaints referred to it by the HRC, whose office is part of the ACT Human Rights Commission.
148. The HRC is empowered to refer complaints to the tribunal by section 53A of the HRCA. The complainant must have instructed the HRC to do so, and the Commissioner must notify both parties of the referral.
149. The HRC 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.
A review of the relevant law
150. The parties and the HRC have helpfully provided the Tribunal with many volumes of cases that are said to have varying degrees of relevance to the present matter. The Tribunal has reviewed each of the cases and noted the more relevant ones.
‘Attributes’ and ‘characteristics’ – section 7(1) and (2) of the Discrimination Act
151. Section 7(1) of the DA defines the ‘attributes’ which in this case is ‘race’ as expanded by definition thereof in the Dictionary to the DA to include ‘descent, ethnic and national origin and nationality’. In the legislation of other jurisdiction the term ‘ground’ is often used in lieu of the word ‘attribute’ but without material change in meaning.
152. The ‘national origin’ is different from ‘nationality’. The former is fixed at birth but the latter may change over life.[55]
153. ‘Ethnic origin’ is different from ‘nationality’ and ‘national origin’ and is based on “a common racial stock or on shared customs, beliefs, traditions and characteristics derived from a common or presumed common past…”.[56] Dr Wang is of Chinese ethnicity and national origin.
154. The concept of an ‘attribute’ is extended by section 7(2) of the DA to include ‘characteristics’ that people claiming to be the subject of the discrimination ‘generally have’ or ‘are generally presumed to have’. This extended definition applies to both direct and indirect discrimination.
155. One of the purposes served by the extended definition of attributes to include ‘characteristics’ is to prevent the imposition of conditions or requirements that amount to ‘stereotyping’ of people of a national origin.[57]
156. The adverb ‘generally’ as it appears in section 7(2) of the DA only requires that the characteristic be one that people with the attribute have ‘for the most part’ or ‘extensively;’ or ‘in the general case’. It is not limited to characteristics that people with the attribute necessarily have, or with few exceptions have.[58]
Direct and indirect discrimination
157. The Tribunal is compelled by authority to accept that categories of ‘direct’ and ‘indirect’ discrimination are mutually exclusive.[59] However the same set of facts can form a complaint under both categories and there is no requirement that the claimant make any election between the alternatives. It is a question of testing the facts as pleaded against the definitions of both categories of discrimination. If direct discrimination is found then there is no need to consider the indirect discrimination question.[60]
The causal test ‘because of…’
158. The motivation of the alleged discriminator may be relevant in establishing the causal link between the condition or requirement imposed and its discriminatory impact but it is not essential to show these impacts were intended.[61] The test is an objective one.[62] There is a difference between a person’s ‘motivation’ and their ‘reasons’ for doing an act.[63]
159. The causal test in the DA is framed in terms of ‘because of…the attribute’. Section 4A provides that the discriminatory motive does not have to be the “dominant or substantial reason for doing the act.”
160. In IW v Perth (1998) 191 CLR 1 Kirby J said at [63] that the test for causation in discrimination matters is whether the attribute was a ‘not trivial or insubstantial’ reason.
161. In Purvis v State of NSW [2003] 217 CLR 92 McHugh and Kirby JJ described the ‘because of’ causal test in section 5 of the DDA as being ‘the real reason’ or ‘true basis’ which is not to be identified with the basis proffered by the alleged perpetrator; genuinely assigned reasons may in fact mask the true basis for the decision.[64] It does not have to be the dominant or substantial reason.[65]
162. In Australian Medical Council v Wilson [1996] FCA 1616 at [44] Sackville J cited Deane and Gaudron JJ in Banovic to the effect that:
…the true basis for an act or decision is the ground of the decision. The true basis is not necessarily the ground assigned for the act or decision….
163. The issue of direct discrimination on the basis of status as an overseas student (as opposed to overseas graduate) arose in Sydney University Postgraduate Representative Association v the Minister for Transport Services [2006] NSWADT 83. In this case the NSW government issued a policy that charged ‘full fee paying students’ full fares on public transport in contradistinction to the position of non-full fee paying university students who received subsidised fares. The evidence was to the effect that most full fee paying students were overseas students of differing non-Australian national origin and domestic full time students were not full fee paying students. One of the applicants was Chinese, some others were Spanish. The Appeal Tribunal found that the policy directly discriminated against overseas students as a class and therefore discriminated on the basis of national origin:
64 When undertaking the comparison required in order to determine whether there has been differential treatment we must consider whether the applicants were treated less favourably than a university student of a different nationality would have been treated in the same or similar circumstances. Mr Wang is a person of Chinese nationality and both Mr Bravo Nuevo and Mr Martinez Neira are people of Spanish nationality. If we compare their treatment by the STA and the SRA with the way in which a similarly placed person of Canadian or British nationality would have been treated, the evidence reveals that there would not have been any difference in treatment. If, however, we compare their treatment by the STA and the SRA with the way in which a similarly placed person of Australian nationality would have been treated, the evidence reveals that Mr Wang, Mr Bravo Nuevo and Mr Martinez Neira were treated less favourably in the same or similar circumstances because a similarly placed university student of Australian nationality who sat next to them on the train or the bus would have been entitled to a concessional fare whereas the three men in question were required to pay the full or ordinary fare. It is important to explain how we have reached the conclusion that there was differential treatment in this case.
…
69 The term “full fee paying overseas students” is one which has been used in Australia’s higher education sector for many years. The term has two components: “full fee paying” and “overseas students”. The descriptor “full fee paying” appears to have been employed to distinguish a group of overseas students from other domestic and overseas students for two purposes. First, until recently it was not possible for Australian universities to charge domestic students fees for undergraduate courses. That restriction did not apply to “overseas students”. Secondly, Australian universities have for many years admitted some “overseas students” to their courses without the payment of any fee by those students because the students came to the universities under exchange and sponsorship programmes.
…
71 As the letter from Mr Booth to the President of the ADB (reproduced, in part, in paragraph [10]) reveals, universities determined whether a particular student was eligible for a public transport concession cases after having regard to the criteria published by the public transport providers. It is reasonable to assume that the universities would have employed the definition of “overseas student” set out in the previous paragraph. As we have noted, “full fee paying overseas students” are simply a sub-category of “overseas students”.
…
75 Whilst this argument reveals that there may not have been any intention on the part of the Minister to harm or disadvantage university students who were not of Australian nationality when the decision was made not to permit “full fee paying overseas students” to enjoy the travel concessions granted to others, the various statements from Purvis (reproduced at paragraphs [49] and [50]) reveal that the absence of discriminatory motive or intention is not relevant when considering whether the differential treatment occurred because of nationality. By adopting a policy which specifically referred to “full fee paying overseas students” as a category of students who were denied the benefit of concessional travel which was granted to similarly placed students of Australian nationality, and bearing in mind the finding that to be an “overseas student” a person must be of a nationality other than Australian, it is self-evident that the applicants received differential treatment because of their nationality. The reason why they were denied concessional travel was because they were “full fee paying overseas students” and that is a categorisation which ultimately turns, primarily, upon nationality.
…
77 The STA and the SRA discriminated against the applicants on the ground of their race (in this case, their nationality) in the terms upon which they were provided with public transport services because they were charged higher fares than similarly placed people of Australian nationality. In the absence any statutory defence, both transport authorities have contravened s 19 of the Act.
The unfavourable treatment
164. It was rightly conceded by the respondent that the terms of the Policy treat overseas trained doctors unfavourably, whether assessed by reference to how Australian trained doctors are treated or simply per se. So much is obvious.
165. Nevertheless, the respondent did at times faintly raise the argument that overseas trained doctors did have a theoretical chance of being selected for internships even if that was a remote chance. To the extent that this defence was seriously put the Tribunal notes and adopts the rejection of such a defence by the Full Federal Court in the Secretary of the Department of Foreign Affairs and Trade v Styles (1989) EOC 92-265; the Policy had to permit a practical and not merely a theoretical chance of selection.
The ‘reasonableness’ test of section 8(2)(3) of the DA
166. The ‘reasonableness’ defence in section 8(2) of the DA is not satisfied by merely showing some understandable and desirable outcome from the imposition of otherwise discriminatory conditions or requirements:
it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition.[66]
167. Waters v Public Transport Corporation [1991] 173 CLR 349 involved the Equal Opportunity Act 1984 (Vic) in a claim of discrimination based on disability. The Court held that the ‘reasonableness test’ looked to all the circumstances of the case and not just the factors listed in section 17(5)(c) of the EOA (the legislative equivalent of section 8(3) of the DA).
168. Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 is a decision of the New Zealand High Court. The applicant was a regional government health authority administering a health system in which medical practitioners are retained on contract to provided subsidised health services. Registered medical practitioners who are not under contract may still practice but received no subsidies for their services and must look to the patient for any payment. It is similar to the UK health system.
169. The applicant came to the view that there were too many doctors in its region and embarked on a policy to reduce the number. In doing so the applicant fixed upon other policy goals as well including:
a) the stated position that New Zealand medical graduates would be better in tune with the needs of New Zealand patients than would graduates of overseas universities irrespective of the number of years in which an overseas trained doctor had practiced in New Zealand;[67] and
b) a preference to use doctors whose training the applicant had to some degree subsidised, which the High Court described as ‘superficially illogical’.[68]
170. The applicant had the support of the New Zealand Medical Association but not of the New Zealand Royal College of General Practitioners.
171. An overseas trained doctor practicing in the region challenged the policy on the basis that it was in breach of section 22 of the Human Rights Act 1993 (NZ) (HRANZ) which prohibits discrimination in employment. Section 22 contains the kind of comparator test found in the RDA (Cth). The definitions of discrimination were contained in section 21 and/or 65 of the Human Rights Act 1993 (NZ) which related to ‘direct’ and ‘indirect’ discrimination respectively on the basis of race, ethnic origins, nationality or citizenship.[69] The challenge was only put and considered by the Court on the basis of indirect discrimination.
172. These sections relevantly provide:
21(1) For the purposes of this Act, the prohibited grounds of discrimination are—
(a) sex, …
(b) marital status…
(i) ....
(c) religious belief:
(d) ethical belief…
(e) colour:
(f) race:
(g) ethnic or national origins, which includes nationality or citizenship:
…
(2) Each of the grounds specified in subsection (1) is a prohibited ground of discrimination, for the purposes of this Act, if—
(a) it pertains to a person or to a relative or associate of a person; and
(b) it either—
(i) currently exists or has in the past existed; or
(ii) is suspected or assumed or believed to exist or to have existed by
the person alleged to have discriminated.
65. Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part has the effect of treating a person or group of persons differently on 1 of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.
173. Section 65 does not expressly use a ‘reasonableness’ test, rather it requires that the prima facie discriminatory action be for ‘good reason’. The High Court said that there may be differences between the two tests and that the New Zealand test put the onus on the perpetrator to justify its actions.[70] The Court said that the ‘good reason’ test was one to be tested against “all the circumstances of the case”[71] and had to be “suitable and requisite for achieving that aim.”[72] It needs to take account of whether there were other viable non-discriminatory policy solutions.[73] The test was not satisfied by:
a) economic advantage following from the impugned policy “otherwise any prohibited form of discrimination could be justified by claims of economic necessity’;[74]
b) the convenience of the policy to its instigator;[75] or
c) the existence of an understandable logic underpinning the policy.[76]
174. Section 19 of the NZ Bill of Rights Act 1990 was also an operative provision which prohibited discriminator action but linked that prohibition directly to the NRA(NZ):
Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.[77]
175. The NZ Bill of Rights Act 1990 contains the equivalent to section 30 of the HRA (ACT) requiring statutes to be construed consistently with the rights conferred in the Bill of Rights.[78]
176. The applicant conceded and the Court found as a fact that ‘the great majority of foreign trained doctors would be of non-New Zealand origins, a concession with accords with common sense’.[79]
177. The Court noted the relevance of international decisions on human rights and reviewed a number of US, UK, Canadian and Australian decisions.
178. The New Zealand legislation contained a comparative test. The New Zealand High Court considered and distinguished the decision of the Full Federal Court in Australian Medical Council v Wilson on the RDA (Cth) which also contained a comparative test. This decision is considered below. The High Court said that the comparison required had to focus on the basis for the challenged action and in this case was the comparison between practicing doctors who were graduates from New Zealand universities and those that were not.[80]
179. The Tribunal notes the respondent’s reliance on the decision of the Full Federal Court in Australian Medical Council v Wilson & Ors [1996] FCA 1616 which was determined under the RDA (Cth). It is an earlier appeal in the Siddiqui matter. The Human Rights Commission (Cth) found the policy to be indirectly discriminatory and an appeal found its way to the Full Federal Court.
180. The case concerned a quota system imposed by the Australian Medical Council on overseas trained doctors. These doctors were required to undertake and pass the AMC exams for their overseas qualifications to be recognised in Australia. The AMC had a policy of only accrediting the first 200 candidates on the examination. Dr Siddiqui did not rate in the first 200 for this exams.
181. Dr Siddiqui was an Australian citizen. He obtained his medical qualification in India. Before coming to Australia Dr Siddiqui practiced as a doctor in India, UK, Ireland and US. He has post graduate qualifications in neurology from a London university. He came to Australia in response to an advertisement for doctors and had practiced in hospitals in Victoria, NSW and Tasmania on a restricted registration. He then commenced the AMC exams to obtain unrestricted registration.
182. The challenge under the RDA was based on both the requirement to undertake the exams in the first instance and also on the 200 person quota. The appeal focussed on the former issue.
183. The 1992 policy of the Australian Health Minister’s Council was in evidence in that case. It suggested the reduction of overseas trained doctors as a means of responding to an oversupply of doctors at the time. To this end it suggested the imposition of the quota system on the AMC exams.
184. The AMC system at that time operated much as it does now. There was a written examination which if passed then led to an oral examination and a clinical examination. The policy importantly said that the policy should not apply to those overseas trained doctors that had already commenced the AMC exams:
In relation to the OTDs now in the pipeline for entry to Australia, Ministers advise that they have taken the decision that it is not reasonable to subject those candidates who have already passed the multiple choice examination (but have not commenced or completed the clinical component) to the quota….
185. In the present case Dr Wang had passed the AMC examinations by 2011 and the occupational English test in 2012. He was therefore further advanced in the process than the candidates referred to in the Minister’s 1992 policy.
186. For present purposes 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 find direct discrimination and so this issue did not arise on appeal for the Full Court.
b) The RDA contained no equivalent to the extended definition of discrimination in section 7(2) of the DA that applies in the ACT to both direct and indirect discrimination.
c) The RDA contains a comparative test that is not present in the DA.
d) The case turned on the evidence that was before the Human Rights Commission (Cth) on that occasion and the findings of fact by that Commission which are not binding on the present Tribunal.
187. Heerey J expressed doubts concerning the Commission’s failure to find direct discrimination but acknowledged that issues of fact were beyond the ambit of the appeal and the Federal Court was bound to accept those findings as long as the findings of fact were open on the evidence at [73]:
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 s9(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.
188. Heerey J considered the example of R v Wilson; ex parte Kisch (1934) 52 CLR 234. Under section 3(a) of the Immigration Restriction Act 1901 (Cth) the various categories of prohibited immigrants included a person who, when asked to do so by an officer, failed to write at dictation and sign in the presence of the officer “a passage of fifty words in length in an European language directed by the officer.” The Commonwealth authorities were anxious to exclude Kisch, not on racial grounds (he was a white man and a Czechoslovakian national), but because he was considered a dangerous political radical. He was also an accomplished linguist. The solution which occurred to the authorities was to give him a dictation test in Scottish Gaelic. A majority of the High Court held that Scottish Gaelic was not “an European language” because it was not “a standard form of speech recognised as an ordinary means of communication amongst the inhabitants in an European community for all the purposes of the social body”. Heerey J expressed the views that had the RDA been in existence at the time that the decision to apply the language test would have amounted to direct discrimination:
71. The dictation test operated as a direct act which, in terms of RDA s 9(1), involved a distinction “based on” race. Had s 9(1) been in existence in 1934 there would be little doubt of a finding that the dictation test was in fact an act “based on” race. Counsel for the Commonwealth argued (at 239):
By not defining the expression “an European language” the Legislature retained the right to apply an arbitrary test. The statutory provision was designed, primarily, for the exclusion from the Commonwealth of Asiatics, the underlying motive being the preservation of a “white” Australia.
189. His Honour concluded that the imposition of the AMC exams in the case of Dr Siddiqui could have amounted to direct discrimination but this was not the finding of fact that the Commission made and so it was not open to the Court to so find:
73. 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. This was a case of s 9(1) or nothing.
190. At [65] Heerey J made the point that if an action is found not to infringe the direct discrimination test it may then be tested against the indirect discrimination test.
191. Heerey J addressed the issue of the ‘reasonableness’ test:
47. In a passage which has been adopted on a number of occasions by the High Court, Bowen CJ and Gummow J said in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 263 (speaking of the relevantly indistinguishable provision in s5(2) of the Sex Discrimination Act) that the test of “reasonableness”
... is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.
192. Heerey J went on to address the role of self-interest, political and social biases in the assessment of ‘reasonableness’ to the point that not all people would even agree that a measure is reasonable or rational.[81]
193. 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 s9(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...(emphasis added)
194. 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 exclusion, namely all those who were not graduates of domestic universities were caught in the quota and required to undertake the examination. 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.
195. 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 (i.e. non-Australian) trained doctors.
196. Secondly, to the present Tribunal, it is self-evident that the sets of medical graduates trained in Australian or New Zealand on the one hand; and those trained overseas on the other hand, spans the field of all medical graduates. To impose a quota and examinations only on doctors trained overseas is exactly the same logical statement as exempting or preferring doctors trained in Australia or New Zealand.
197. The RDA does not contain any extended definition of ‘characteristic’ such as appears in section 7(2) of the DA. It seems that Sackville J had taken the view that direct discrimination only applies where there is an explicit and necessary connect between the requirement or condition imposed and race or national origin. His Honour found that no direct discrimination occurred because a person of Indian national origin may enrol in an Australian university or because a person of Australian nationality would also be treated unfavourably if they studied medicine at an overseas university i.e. the existence of the exception to the general rule negates any suggestion of stereotyping or proxies.
198. 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 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.
199. This is an important point, because it is the point of departure between the RDA and the DA. In the ACT, section 7(2) of the DA defines the attribute of national origin by reference to a characteristic that people of that national origin ‘generally’, but not ‘necessarily’ possess. Neither Sackville J, nor the other members of the Full Court, considered whether doctors trained ‘overseas’ would ‘generally’ (and not necessarily) have a different nationality or national origin. They did not consider this point because the equivalent of section 7(2) of the DA does not appear in the RDA.
200. The decision in Wilson is not binding in the present case. Quite apart from the significantly different statutory provisions in question, reasonable minds can differ on issues of statutory construction and factual evaluation of the evidence and the present Tribunal is most unconvinced by the above logic of Sackville J in Wilson.
201. In Jamorski v Attorney General of Ontario (1988) 49 DLR (4th) 426 the Ontario Court of Appeal dealt with a case in which the Ontario government determined to limit the number of internships to graduates of medical schools other that those medical schools that had been accredited by the Ontario government. It was the case that all medical schools in Canada and US were accredited but none from any other country including Australia. The Court of Appeal held that there was no suggestion that there had been anything other than a “bona fide system of assessing medical schools” on their merit and therefore this policy was not discriminatory on the grounds of national origin within the meaning of section 15(1) of the Canadian Charter of Rights and Freedom. This finding of fact by the Court of Appeal seems to amount to the proposition that:
a) either a bona fide merits assessment of universities outside Canada and the US had occurred with the finding that even the worst performing Canadian or US university is superior to best performing university in the rest of the world including Australia; or
b) there was no attempt to assess the merits of universities outside Canada or the US so that a nationality criteria had in fact been directly applied.
202. In Edgley v Federal Capital Press of Australia [2001] FCA 379 the Full Federal Court heard an appeal from the ACT Supreme Court under the DA on the ground of sex discrimination. The Court noted that the ‘reasonableness test’ involves “an element of wide discretionary judgement.”[82] Other cases reviewed above make the point that these judgments can be coloured by self interests, parochial interests and social and political biases with the consequences that the professed motivation for an action is not be taken at face value. The professed motivation in Jamorski must be a prime candidate for such a scrutiny.
203. The Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311 concerned a claim of sex discrimination by female employees who were on extended leave (including carers and maternity leave) when a major round of redundancy occurred. These women were not offered the chance to be selected for redundancies. The claim was one of indirect discrimination. Section 5(2) of the SDA as it stood at the relevant time contained the ‘reasonableness’ test as part of the test for indirect discrimination. It has since been amended to the form set out above. At the relevant time it read:
5(2) For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
204. Davies J noted that recent legislative changes to the SDA effected a change in the onus of establishing the reasonableness of the conduct which fell upon the complainant on the version of the legislation as it stood prior to the amendments.[83] On the legislation under consideration no discrimination arose unless and until the reasonableness test was found not to be satisfied:
Thus, under s 5(2) as it read at the time, one does not commence with prima facie unlawful discrimination. There may be a difference in treatment or effect as between the sexes; but there will not be discrimination for the purposes of the Act unless the requirement or condition is not reasonable in the circumstances.
205. Davies J said that the reasonableness test did not operate in the abstract “it must be determined by reference to the activity or transaction in which the putative discriminator is engaged.”[84]
206. The reasonableness test in the SDA was not exhaustive and required a consideration of all the circumstances of the case.[85] This includes “the nature and extent of the discriminatory effect” and that “it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition”.[86] Davies J adopted Waters v Public Transport Corporation [1991] 173 CLR 349 at 378:
first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s 17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
207. Sackville J set out a detailed analysis of the ‘reasonableness’ test as it applied to the SDA as that statute then stood:[87]
A number of cases have considered the proper construction and application of s 5(2)(b) of the SD Act, or of equivalent provisions in other legislation. The principal authorities are Secretary, DFAT v Styles (a case concerning s 5 of the SD Act); Waters v PTC (concerning the Equal Opportunity Act (Vic)); Dopking (No2) (concerning s 6 of the SD Act 1975, dealing with discrimination on the ground of marital status); and AMC v Wilson (concerning the Racial Discrimination Act (Cth)). Some propositions can be distilled from these cases. In my view, they are consistent with the beneficial approach to the construction of anti-discrimination legislation, as applied most recently in IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696, at 702, 704, per Brennan CJ and McHugh J; at 710, per Dawson and Gaudron JJ; at 724, per Gummow J.
First, the starting point in determining whether a requirement or condition is “not reasonable having regard to the circumstances of the case” are the observations of Bowen CJ and Gummow J in Styles at [263] that:
the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.
This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Commonwealth v Human Rights & Equal Opportunity Commission (1995) 63 FCR 74 (Dopking (No2), at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in Australian Medical Council v Wilson, at 60, per Heerey J (with whom Black CJ and Sackville J agreed).
In Dopking (No2), at 82-83, Lockhart J said that the test:
...required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s 6(2) of the [SD] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable.
Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement. Subjective preferences:
may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts.
Secondly, the non-reasonableness of the requirement or condition is itself part of the definition of discrimination in section 5(2). Thus section 5(2)(b) is to be applied according to its terms and is not to be influenced by any concept of discrimination existing outside the statutory definition.[88]
As Brennan CJ and McHugh J observed in IW v City of Perth, at 702, many anti-discrimination statutes define discrimination and the activities which cannot be the subject of discrimination:
in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the [Equal Opportunity Act 1984 (WA)]. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act. [citations omitted.]
Thirdly, it would be erroneous for the Commission to assume that any difference of treatment between the complainants and (in this case) other employees of the bank is prima facie discriminatory and therefore unreasonable.[89] The complainants bear the onus of establishing that the condition or requirement is not reasonable in the circumstances of the case.[90]
Fourthly, reasonableness (or non-reasonableness), for the purposes of section 5(2)(b) of the SDA, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but “in a less discriminatory way”: Waters v PTC, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J.
As Brennan J pointed out in Waters v Public Transport Corporation (at 378), reasonableness cannot be determined in the abstract:
[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s 17(5) [equivalent to s 5(2)(a) and (c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the ‘correct’ one. The point was put this way by Heerey J in Australian Medical Council v Wilson (at 61-62), adopting a passage in the judgment of Sheppard J in Dopking (No2):
‘reasonable’ in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily in which all people or even most people agree. In Dopking Sheppard J emphasised what is in my respectful opinion an important aspect of reasonableness in an indirect discrimination context. The case was concerned with a complaint by Mr Dopking that a Defence Department determination that a benefit for the reimbursement of legal and other costs in connection with the acquisition of off-base accommodation by armed services personnel discriminated against him because it was restricted to personnel with families. Mr Dopking, being single, was entitled to full board in barracks but wished to live in his own home. Sheppard J said (at 87):
“The basis for the discrimination which results from [the determination's] application only to married members is, in the circumstances of the case, within the bounds of objective reasonableness. In other words, the point of distinction which has been adopted has a logical and understandable basis. There may have been other ways of approaching the problem; views may differ about the matter. But, in my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the determination. With respect, I do not consider any other view to be open. I am thus unable to see how it can be said that the adoption of the policy to which the determination gives effect is unreasonable having regard to the relevant circumstances.”
It may be that the passage cited from the judgment of Sheppard J in Dopking (No2) somewhat overstates the position. The fact that a distinction has a “logical and understandable basis” will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case, within the meaning of section 5(2)(b) of the SDA. I do not understand Heerey J to have intended to express a different view in Australian Medical Council v Wilson. However, in my respectful view, Sheppard J's judgment correctly emphasises that the question is not simply whether the alleged discriminator could have made a ‘better’ or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case.
208. Sackville J (with whom Davies J agreed) put the proposition:
a decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision…
The awarding of compensation
209. In Kovac v Australian Croatian Club Ltd (No2) [2016] ACAT 4 President Spender addressed the nature of the power to award compensation under 53E of the HRCA. This case was a resumption of the matter Kovac v Australian Croatian Club Ltd [2014] ACAT 41. In that case the Tribunal found the respondent in breach of the DA and the matter was adjourned for hearing on the issue of compensation. In the original decision the Tribunal found that the respondent had discriminated against the applicant by treating the applicant unfavourably by depriving him of membership of the Club, failing to accept the applicant’s application for voting membership of the Club or by affording onerous terms and conditions upon the application for membership because of the applicant’s political conviction.
210. This case concerned the principle governing the award of compensation for breach of the DA. It addressed:
a) the extent of causation required between the breach and the loss under section 53E of the HRCA - ‘material contribution’;
b) the criteria for compensation under section 53E of the HRCA and its analogy to damages in tort;
c) the availability of aggravated damages and the test for awarding such damages including for a mental injury and humiliation;
d) awarding interest on compensation; and
e) the restriction on awarding costs under the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
211. The Tribunal ordered, inter alia:
1. The respondent is to give a written undertaking by 8 February 2016 that the respondent will not repeat or continue to treat the applicant unfavourably on the grounds of his political conviction or as a result of this complaint.
2. The respondent is required to accept the applicant’s application for full voting membership of The Australian Croatian Club Limited for the years 2011, 2012, 2013, 2014 and 2015.
3. The respondent is to pay the applicant compensation in the sum of $30,468.70 for special damages plus interest in the sum of $2349.01.
4. The respondent is to pay the applicant compensation in the sum of $30,000 by way of general damages.
212. The Tribunal noted that the remedies nominated by section 53E(2) are not disjunctive and therefore the Tribunal may order all or any of the nominated remedies:
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act
(c) unless the complaint has been dealt with as a representative complains -that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
213. The Tribunal went on to consider the application of various potential heads of compensation. The Tribunal reviewed the nature of aggravated damages and took the view that aggravated damages were an available remedy; however on the facts of the case aggravated damages were not an appropriate remedy.[91]
214. The Tribunal noted that the criteria in section 53E(2)(c) of the HRCA were analogous to those at common law in tort. These heads of compensation permit an award for humiliation arising from the deliberate cruelness of the respondent’s action when judged in accordance with community norms.[92]
215. On the issue of the test of causation in section 53E of the HRCA the Tribunal adopted the ‘material contribution’ test i.e. did the breach materially contribute to the particular losses claimed.[93]
216. The Tribunal identified the particular losses pleaded by the applicant that satisfied the material contribution test. Some losses satisfied the test and some did not. The Tribunal found the following losses were compensable:
a) the physical and psychological injuries pled;
b) the humiliation were compensable as general damages; and
c) loss of salary and other employment entitlement during the time the applicant was off work due to the effects of the breach.
217. The Tribunal considered the principle for the assessment of the quantum of damages including the role of:
a) community norms; and
b) comparative verdicts
218. The Tribunal said:
76. In assessing the damages that should be awarded to the applicant, the Tribunal acknowledges the respondent’s submission that there is no fixed amount or range of damages that might be awarded. Each case must be considered in the light of its own facts and assessment made of the amount which can be fairly regarded as reasonable compensation for the injuries and disabilities which particular applicant has sustained from the unlawful act having regards as far as possible to the general standards prevailing in the community. As commented by the respondent, calculating general damages in discrimination type claims is a difficult exercise and reliance is placed on the ‘good sense’ of the tribunal. As stated by the Anti-Discrimination Tribunal of Tasmania in Power v Bouy:
Ultimately, each matter must be decided on its own facts, but the award must conform to a general pattern established by precedent and can neither be manifestly excessive nor manifestly inadequate. It must fall within a range defined by those two parameters, and provide proper compensation for what has been suffered.
77. Therefore, it is clear that some comparison with decided cases is appropriate. In this respect, the applicant provided a table of comparable verdicts which formed an annexure to its submissions. Conversely, the respondent argued that the Tribunal should follow House & Anor v Queanbeyan Community Radio Station (House) where the successful applicants were subjected to racial discrimination in the assessment of their membership for a volunteer position in a community radio station. In House Neville FM considered that an appropriate award of damages of $6000 should be given to each of the applicants, together with an award of costs in their favour.
78. As discussed above, the respondent argued that the Richardson should not apply to the present case of political conviction discrimination, however the Tribunal has concluded above that the reasoning of Richardson applies to discrimination matters generally and not just to matters involving sexual harassment. Therefore, Richardson is relevant to the quantum of damages that should be awarded when a finding of discrimination has been made. In Richardson the Full Court considered that the sum of $18,000 that was awarded by the trial judge, whilst not out of step with past awards, was manifestly inadequate and out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind that the applicant in that case had sustained. The Full Court substituted the sum of $100,000 for general damages.
79. Recent awards of general damages in comparable cases after Richardson include Power v Bouy] where $25,000 was awarded. In that case, the sexual harassment was very serious but there was no psychiatric, psychological or medical evidence led about any psychiatric consequences suffered by the complainant even though the tribunal found that there was “ongoing fear worry and anxiety”. In Bevilacqua v Telco Business Solutions Senior Member Proctor awarded $10,000 compensation for hurt and humiliation which he found did not trigger a decline in the applicant’s mental state. In Dziurbas v Mondelez Member Dea of the Victorian Civil and Administrative Tribunal (VCAT) found discrimination on the ground of disability which resulted in the applicant losing his job and when he had planned to work for another two years. There was no evidence of psychological injury. The member awarded the sum of $20,000 for “injury to feelings”. In Huntley v State of NSW the Federal Circuit Court awarded $75,000 where the respondent’s conduct impacted significantly upon the applicant’s pre-existing depressive disorder. Medical evidence was led by the applicant of significant psychological trauma caused by the respondent’s acts of discrimination on the ground of disability.
80. In Tan v Xenos, a VCAT case decided before Richardson, Harbison J commented that the question of general damages should not be regarded as minor or inconsequential and there should not be a perception that awards of damages in VCAT should be set at some lower rate than awards for comparable cases in the courts. In that case Harbison J considered that the award of damages “must be substantial” and awarded $100,000 general damages without medical evidence as to how the incident had affected the applicant.
81. Therefore although the Tribunal acknowledges the present respondent’s submission that House is relevant to the present case, some adjustment should be made to the quantum of general damages awarded in House because no medical evidence was led in that case to support the claim for general damages. As stated by Neville FM:
While I accept that the failure to provide medical evidence is not fatal to any claim for general damages, and that I have remarked that something more than general claims of shame, hurt and anxiety felt by the applicants would have been helpful, it does, in my view, militate against there being a large award of damages.
82. The Tribunal concludes that the present applicant has suffered as a result of the respondent’s conduct and a significant body of credible evidence was led by the applicant and other witnesses which establishes that he suffered from a medical condition – chronic adjustment disorder – as well as feelings of hurt, humiliation and distress which were caused by the unlawful conduct of the respondent. This evidence was not rebutted by the respondent.
83. The Tribunal concludes that the amount of $30,000 accords with prevailing community standards and awards this sum to the applicant by way of general damages.
219. The Tribunal held that it had no power under section 23 of the ACAT Act to award interest or to award costs under section 48 of the ACAT Act.
220. In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 the High Court held that a loss of an opportunity to obtain a commercial advantage or benefit is a loss or damage for the purposes of section 82(1) of the Trade Practices Act 1974 (repealed). The amount of damages is to be assessed by reference to the court’s assessment of the prospect of that opportunity if it had been pursued.
Consideration of the issues
Direct discrimination
221. This is a claim for discrimination in employment based on the attribute of ‘national origin’. It is not a claim of discrimination in some abstract sense relating to the national origin of the applicant per se. It is a claim that asserts a refusal to consider the applicant for a medical internship position based on his national origin i.e. being other than Australian. The link to the applicant’s national origins is through that part of the Policy that has chosen to differentiate between candidates only on the basis of the national location of the university from which they obtained their medical degree.
222. The reference to ‘national origin’ does not limit the operation of section 7(2) of the DA and section 8(1)(a) of the DA to specific other national origins only. A policy or condition that excludes people of national origin other than Australian is simply a short hand method that saves listing all the nationalities in the world other than Australian and allows for them be treated as a class.[94] Each nationality within that class is subjected to the disadvantageous effects of the policy or condition. The policy or condition does not cease to be discriminatory simply because it treats all non-Australians in an equally disadvantageous way. The discrimination rests in the intention to distinguish between people of Australian national origin and those that are not.
223. It is important to note that this differentiation in the Policy occurs notwithstanding that the person in question of non-Australian national origin may in fact be an Australian citizen, lawfully within the country and otherwise qualified for the work in question. This Policy is not about migration issues; it applies to people lawfully within Australia, including Australian citizens, and discriminates against them only on the basis of their national origin via the likelihood of the location of the university of their education.
224. The definition of an ‘attribute’ is expanded by section 7(2) to include those ‘characteristics’ that people of a national origin ‘generally have’ but not necessarily have. The concept of a ‘characteristic’ extends to more than just the physical features of people of a national origin and includes their social, cultural and other characteristics. These characteristics extend to their education which is the context of the present complaint.
225. The respondent contends that the ambit of the relevant ‘characteristic’ extends no further than to whether a complainant of different national origin has a medical degree (or any degree) and does not extend to the national location of the relevant university from which they graduated. The Tribunal cannot see any reason why the ambit of a ‘characteristic’ would be arbitrarily curtailed at the point of the nature and existence of a tertiary qualification and not extend to location of university in question.
226. It is a conceded fact in these proceedings that people across the world ‘generally’ obtain their educational qualifications, including tertiary qualifications, from educational institutions in their country of origin. This is not just a conceded fact but accords with common experience.[95] This does not mean that there are not exceptions to this general rule, but these exceptions are not the rule itself.
227. To differentiate on the criteria of the national location of the university from which a medical graduate obtained their qualifications, without consideration of the merits of the university or the degree, but simply and only because of the national location of the university, is to fix upon a criteria that generally operates as a proxy for national origin.[96]
228. The point of having the extended definition of ‘attribute’ is to catch conditions or requirements that do not explicitly refer to race or national origin but do so via a proxy. In the Sydney University Postgraduate case there was no explicit reference to national origin; the condition differentiated on the criteria of being a ‘full fee paying student’ which caught all overseas students as a class. It may also have caught some part time students of Australian nationality, but the point is that it treated full time students differentially based on a criteria that was in fact a proxy for their national origin, whether intentionally or not.
229. In the present case there is no suggestion that the discrimination against people of non-Australian origin has anything to do with the quality of their degrees or the university from which they graduated. This issue is simply irrelevant to the Policy. As indicated elsewhere in these reasons, the Policy would operate to exclude from candidature a Nobel Prize winning specialist who graduated from Oxford or Harvard, even if they were an Australian citizen. The discrimination is solely based on the location of their educational history which by implication ‘generally’ brings into play their national origin.
230. The applicant provided the hypothetical example of a policy excluding medical graduates of any Catholic university within the ACT, other than on merits grounds, as being a mere proxy for discrimination on the basis of religious belief, on the basis that it is generally the case that people who attend a Catholic university are of that faith.
231. The respondent stressed that the Policy was not a proxy for national origin because people of non-Australian origin could enrol in the ANU and did so and they would not be subjected to detriment in the Policy; and people of Australian origin could graduate from an overseas medical school and they would suffer the detriment in the Policy. But this argument focuses only on the exceptions rather than the general rule and has no regard to the fact that section 7(2) of the DA is explicitly aimed at overcoming a defence to discriminatory conduct based on the existence of exceptions.
232. In principle the respondent’s argument is not much different to adopting a policy that discriminates against all people born in a hospital in Germany and claiming that this is not discrimination based on national origin because it only focuses on the location of the hospital. It is not the case that every baby born in Germany is of German national origin or nationality, the baby could be an Australian citizen. But it is the case that ‘generally’ babies born in a German hospital are of German nationality. In this example to adopt such a policy is only adopting a proxy for singling out people of German national origin.
233. The Tribunal finds as a fact that the Policy does ‘generally’ act in the nature of a proxy for non-Australian national origin, notwithstanding that there may be exceptions to the generality of the rule.
234. The issue of motive is not immediately relevant to the causation test for direct discrimination but it is plain on the evidence, and not denied by the respondent, that the exclusion of graduates from non-Australian universities was intentional, and the adverse implications of the Policy for overseas trained doctors was known when the Policy was adopted and when it was applied to Dr Wang. In this case there is both intentionality and objectively unfavourable treatment.
235. The respondent has advanced other motivations for the unfavourable treatment of overseas doctors based on assertions of the superior candidature of new ANU graduates over the graduates of all other Australian and international universities; and over the best and most experienced doctors in the world who graduated from a non-Australian university. These assertions are addressed below under the rubric of ‘indirect discrimination’. The Tribunal finds that there is neither evidence nor common sense to support these assertions and they are rejected.
236. The above findings are sufficient to amount to direct discrimination which the Tribunal so finds.
237. The DA does not contain a comparative test for direct discrimination as is found in the statutes of some, but not all, other jurisdictions. But even if the DA did contain a comparative test it is obvious that the Policy treats overseas trained doctors/graduates disadvantageously compared to Australian trained doctors/graduates such that a comparative test would also be satisfied.
238. The respondent advised the Tribunal that category eight of the Policy has now been removed entirely. This only means that overseas trained doctors are not considered at all. This development only serves to make the Policy more discriminatory and not less so.
Indirect discrimination
239. The Tribunal accepts that direct and indirect discrimination are mutually exclusive categories within the DA. However, if contrary to the above findings, direct discrimination is not open as a matter of law on the facts of this case then the applicant is entitled to have his complaint assessed under the rubric of indirect discrimination.
240. For the purpose of this alternative the Tribunal must address the criteria in sections 8(1)(b), 8(2) and 8(3) of the DA.
241. For the purposes of section 8(1)(b) of the DA the Tribunal finds as a fact that:
a) the relegation of overseas trained doctors to the last category of the Policy amounts to the imposition of a condition on those doctors, including Dr Wang;
b) the relegation to the last category of the Policy disadvantages those doctors, including Dr Wang;
c) for the reasons given above in relation to direct discrimination, to differentiate on the basis of the university from which the overseas trained doctor graduate is to differentiate on the basis of an ‘attribute’ referred to in section 7 of the DA.
242. These findings are sufficient to constitute prima facie indirect discrimination under section 8(1)(b). It is then a matter for the respondent to satisfy the Tribunal that the Policy is ‘reasonable’ under section 8(2) having regard to the factors in section 8(3) and all the other circumstances of the case.
243. The Tribunal’s consideration of the ‘reasonableness’ of the Policy is affected by the difficulties the Tribunal has experienced in accepting the consistency and credibility of the respondent’s evidence and submissions on this point. Without attempting to be exhaustive the Tribunal notes the following as examples only.
244. When Dr Brown for the respondent first responded to the applicant’s complaint the only basis advanced in justification of the Policy was the oversupply of local graduates. There was no mention of alleged superior candidature of local ANU graduates over other Australian domestic graduates or the superior candidature of either of these categories of graduates relative to overseas trained doctors.
245. The COAG minutes of 2006 do not address the issue of limiting or excluding overseas trained doctors from internships or practice generally in Australia; they only refer to the need to develop an assessment process. The AHMAC minutes of 18 December 2013 did not enunciate any policy to the effect that overseas trained doctors should be excluded from practice in favour of domestic graduates; or that graduates from within a State or Territory should be preferenced over domestic graduates from other States or Territories. The minutes indicate an understanding that overseas trained doctors could transition to registration in Australia via other modes of supervision. The evidence from the respondent before the Tribunal is not consistent with the understanding in the Minutes and is to the effect that COAG intended to exclude overseas trained doctors from practice and to endorse the idea of preferring local graduates over those of other States or Territories. The respondent’s evidence is that there are no other modes of supervision open to Dr Wang or other overseas trained doctors in the ACT such as envisaged by the AHMAC Minutes.
246. The respondent submitted that the content of the Policy “does not raise any implications that the system of medical education is anything other than a bona fide system of ensuring the quality of medical graduates.” The implication is that the quality of graduates is ensured by preferencing the selection of ANU graduates. There was no evidence before the Tribunal that any comparative merits assessment has been made between the quality of the education provided by any universities, domestic or international. In fact the evidence, such as it is, is to the contrary, namely that the superiority of ANU graduates for local practice over interstate and international graduates is only an assumption and not one raised by the respondent until it became necessary to advance a lawful justification for the Policy.
247. Both Professor Bowden and Ms Corey testified that no overseas trained doctor, no matter what their merit or the merit of their university, had any realistic chance of selection and that there were no other relevant options open to Dr Wang in the ACT. Professor Bowden put it higher when he said that notwithstanding the merit of any overseas trained doctor “they would not get a position.”
248. The Tribunal raised with the parties on a number of occasions its difficulty in accepting the assumption that ANU graduates are ‘better’ qualified for local practice than graduates of other Australian universities or overseas universities. The respondent’s assumption in fact goes further and is to the effect that new graduates of the ANU (and the very least meritorious of them) are ‘better’ than the best interstate graduate and the best and most experienced medical practitioner from overseas.
249. When pressed on the matter Ms Corey gave the example of a comparison between a medical practitioner of nine years clinical experience and Dr Wang, which signals to the Tribunal the difficultly she faced in maintaining the above assumption.
250. The Tribunal does not accept this assumption as having any evidential foundation and considers it to be offensive to other domestic and overseas universities and even more so to well qualified experienced overseas trained doctors. On the evidence before it, the Tribunal does not accept that this assumption in truth played any role in the motivation for the Policy.
251. Professor Bowden and Ms Corey at times testified that he ACT did not have the resources to create new internships for overseas trained doctors. This issue is not one that arises in this case and no suggestion along this line has been made by the applicant.
252. Professor Bowden admitted that ‘politics’ and ‘economics’ was fundamental to the Policy.
253. Professor Bowden testified that the purpose of the AMC exams was to ensure that overseas trained doctors had approximately the same level of familiarity with the Australian medical system as a new graduate would. Yet Professor Bowden then argued that the alleged greater familiarity of a new ANU graduate over that of the overseas trained doctors was ground for justifying the differential treatment.
254. Professor Bowden testified that there were ‘subtle differences’ between medical practice in the ACT and that of other states/territories which in part motivated the preference for ANU graduates in the Policy. There was no evidence of what these subtle differences are. There was no other evidence to support the assertion, of how or why medical practice in Queanbeyan or at Young (NSW) where the ANU has one its campuses, is different to that in the ACT. The Tribunal does not accept any such subtle differences exist or, if they exist, that they have any relevance or significance to the motivation for the Policy.
255. Professor Bowden testified that if Dr Wang had completed his AMC exams a year or two earlier it was almost certain that he would have been selected for an internship. In that one to two years the only thing that changed was the number of ANU graduates emerging to compete for the internships. There is no suggestion that there have been any changes in this same time concerning the quality of the education provided in any university in China or Australia; the circumstances in which medicine is practiced in the ACT; or Dr Wang’s suitability to practice. The inference to be drawn is that the motivation for the Policy is simply and only a motivation to promote the interests of the local graduates and the standing of the ANU Medical School with prospective students.
256. Dr Kevat made the point that the Policy simplified the administrative tasks of those in the ACT who were responsible for selecting interns. This arises firstly because all ANU graduates automatically were accepted which used up most the 96 available placements without the need for any merit assessment process; and secondly because the Policy in the ACT (but not that of other States) prohibited any interstate candidate from making a concurrent application to another hospital for an internship. This meant that there would be no need for second round considerations that might otherwise arise if one of the successful interstate candidates for one of the few positions available, turned down the respondent’s offer to take up an offer at another university. Professor Bowden did not deny the administrative convenience arising from the Policy, he only denied that it was the motivation for the Policy. The Tribunal can accept that the administrative convenience may not have been the prime motivation for the Policy but it is difficult to accept that the administrative convenience was not recognised by those framing the policy. The prohibition on multiple concurrent applications by interstate graduates for one of the few internships available to them in the ACT is only explicable on the administrative convenience basis.
257. The respondent advanced the argument that those people responsible for selecting interns in the ACT were not free to depart from the Policy and therefore it was reasonable for them to comply with it. The obvious fallacy in this argument is that the complaint of discrimination is directed to the Policy itself, or its author in the form of the Territory and not directed at Professor Bowden. The respondent is free to amend its Policy. It is not a statutory instrument. If the Policy is unlawful, the fact of its existence does not provide a lawful basis for the respondent to implement it.
258. For the respondent it was openly put that the Policy was necessary to protect the viability of the ANU Medical School. It was put that it was advantageous to the Medical School to be able to assure students who enrol that at the end of their studies they would be assured of an internship in the ACT. The Tribunal accepts the logic of this statement; and further accepts that this is in fact the true and only motivation for the Policy.
259. The advancement of the financial interests and academic standing of the ANU Medical School may be relevant considerations for the purposes of indirect discrimination but they are but one factor to be taken into account and weighed against the discriminatory nature of the Policy itself.
260. The respondent at times sought to attribute the blame or fault on Dr Wang for his predicament. It was said that his delay in commencing the AMC exams caused his problem. Dr Wang testified to the steps he had taken to have his qualifications recognised, undertaken other cross over exams and studied English whilst he worked full time in aged care to support his family. The various courses that he did are relevant and show his commitment to the goal he sought. He had no part to play in the respondent implementing a changed Policy in 2014. The Tribunal was uncomfortable with these criticisms of Dr Wang which carried the connotation of ‘blaming the victim’.
261. The Tribunal notes the terms of the Australian Health Minister’s Council in 1992 (the forerunner to the meeting of Health Minister in COAG) in which the issue of regulating the ‘oversupply’ of doctors was raised and a quota system was implemented in relation to overseas trained doctors. This quota formed part of the basis for the decision in Australian Medical Council v Wilson case which turned on the RDA with its substantial differences to the DA set out above. The minutes of that meeting were in evidence. The Minister expressed the view that any change to registration policy that affected overseas trained doctors should not apply to those overseas trained doctors that had already commenced the AMC exams. The minutes explicit recorded the view that “it was not reasonable to subject those candidates” to the change in policy.
262. There is no suggestion by the Tribunal that the minutes of the 1992 Ministers agreement form part of the basis of the Policy. The relevance of the Minutes lies in the fact that the Ministers at the time did not think it was reasonable to invoke their proposed new policy at that time to the detriment of overseas trained doctors that had already embarked on the AMC process.
263. The fairness or reasonableness of the Ministers’ statements is self-evident. Overseas trained doctors such as Dr Wang have been induced or encouraged by representations from the respondent that if they located here and undertook the AMC exams successfully that they would be considered for an internship. Changing the rules only after Dr Wang and others have responded to the representations in good faith, is not fair to them.
264. In summary, for the purposes of indirect discrimination, the Tribunal finds that the terms of section 8(1)(b) are satisfied. The remaining issue is only the ‘reasonableness’ defence or exoneration, the evidential onus of which rests on the respondent.
265. The Tribunal has already indicated above a finding of fact that the Policy was not in fact motivated by the unproven assertion that new ANU graduates are ‘better’ candidates for practice in the ACT then those of the rest of the country and the world. The Tribunal finds as a fact that the true motivations for the Policy were:
a) a motivation to comply with the respondent’s perception of COAG’s intention; and
b) a motivation to promote the economic and academic viability of the ANU Medical School.
266. These are relevant considerations for the purposes of section 8(2) and (3) of the DA. Against them must be weighed at least the following:
a) The extremity of the consequences to Dr Wang (and others in his position).
b) The absence of any means of Dr Wang avoiding these consequences.
c) The prima facie undesirability of a government promulgating policies that are intrinsically discriminatory on the basis of race.
d) Neither the COAG minutes, the minutes of the Australian Health Ministers in 1992 nor those of the AHMC of 2013 envisaged the outcome that overseas trained doctors were simply to be excluded from eligibility to practice.
e) The unfairness of changing the rules after Dr Wang had committed himself and his family to the irreversible consequences of his endeavour to comply with the rules as they stood at the time he embarked on the process and completed the process.
f) The loss of access for the ACT public to experienced overseas practitioners or the best graduates from within or outside Australia.
g) The fact that the discriminatory nature of the Policy is not necessary; it is possible to have, in whole or in part, a merit based system.
267. On balance and in all the circumstances of the case the Tribunal is not satisfied that the Policy is reasonable and it therefore is indirectly discriminatory.
Remedy
268. Dr Wang should be accorded the opportunity held out to him when he undertook the AMC exams. He should be considered on his merits for the next internship intake.
269. That consideration should be free of any of the unsubstantiated assumptions above to the effect that somehow the worst of ANU graduates would be a superior candidate to Dr Wang just by reason of the fact that they are ANU graduates. There should no assumption that the undergraduate clinical placements of ANU students is superior clinical experience or preparedness for work than the years of clinical practice of Dr Wang, including the years he has spent in Australia in aged care, and the additional courses he has undertaken since coming to Australia.
270. If Dr Wang is considered on his merits as above, then he will have the benefit of the effort and cost he has expended in undertaking the AMC exams and other studies. Prior to the new Policy coming into effect, Dr Wang had never been promised an internship upon completion of the AMC exams; he had only been promised a chance to compete on his merits. Absent the advent of the Policy he would have had to compete with other national and international graduates for the positions. For this reason, if Dr Wang is bona fide considered on his merits then he has not incurred the economic damages claimed for the cost of the AMC exams and lost salary; accordingly no award of compensation for these sums would be justified.
271. On the other hand if contrary to the above, Dr Wang is not fairly considered on his merits for the next intake then he would be entitled to compensation for the economic losses he has sustained from the discriminatory Policy. The amount of those losses as quantified in the evidence of the applicant in Exhibit 4 would otherwise seem reasonable to the Tribunal.
272. Part of the problem in implementing the above is that by reason of the Policy other national graduates and overseas trained doctors are no longer applicants for the positions in the ACT and hence Dr Wang now faces a smaller pool of competitors than would have been the case had the Policy not been implemented. There is nothing the Tribunal can now do about that situation. It is a matter for the respondent to fairly consider Dr Wang’s merits relative to those other candidates that do apply.
273. Irrespective of the outcome of his candidature in the next intern intake, Dr Wang has suffered considerable anxiety, embarrassment and humiliation (falling short of a mental injury) by reason of the respondent’s discriminatory conduct to date. He has given his uncontested evidence on these issues. He is entitled to compensation for that experience. The amount of compensation is to be assessed on the facts of his case but also with consideration to comparative verdicts, having regard to community norms. The Tribunal has been referred to many cases by the parties for the purpose of comparative verdicts.
274. Dr Wang is entitled to more than a token award. The Tribunal is of view that the sum of $40,000 would be reasonable.
………………………………..
Senior Member A Anforth
HEARING DETAILS
|FILE NUMBER: |DT 7/2014 |
|PARTIES, APPLICANT: |Qinglin Wang |
|PARTIES, RESPONDENT: |Australian Capital Territory |
|COUNSEL APPEARING, APPLICANT |Mr Hassall |
|COUNSEL APPEARING, RESPONDENT |Dr Jarvis |
|SOLICITORS FOR APPLICANT |Mr Palfrey, Sparke Helmore |
|SOLICITORS FOR RESPONDENT |Mr Sexton, ACT Government Solicitor |
|TRIBUNAL MEMBERS: |Senior Member A Anforth |
|DATES OF HEARING: |24 March 2016 |
-----------------------
[1] Australian Capital Territory v ACT Civil and Administrative Tribunal and Qinglin Wang [2015] ACTSC 370
[2] Prezzi v Discrimination Commissioner [1996] ACTAAT 132; Edgley v Federal Capital Press of Australia [2001] FCA 379
[3] Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
[4] Harrison v ACT Housing [2002] ACTDT 3
[5] Hunyor J ‘Skin deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535
[6] Exhibit 4
[7] Exhibit 5
[8] Edgley v Federal Capital Press (2001) 108 FCR 1, 15-17; Australian Medical Council v Wilson & Ors [1996] FCA 1618
[9] Edgley v Federal Capital Press (2001) 108 FCR 1 [15-17], 19-21; Australian Iron & Steel v Banovic (1989) 168 CLR 165, 170-171, 184; Waters v Public Transport Corporation (1991) 173 CLR 349, 392-393, 400-402
[10] Australian Medical Council v Wilson & ORS[1996] FCA 1618
[11] Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 at [18]; Edwards v Bourke Shire Council [2005] NSWADT 9 at [23-24]
[12] Purvis v NSW (2003) 217 CLR 92 at [134]
[13] Kapooor v Monash University (2001) 4 VR 483; Correy v St Joseph’s School [2007] NSWADT 104 at [112-123]; O’Connor v Victoria [2004] VCAT 1040 at [58]
[14] Commonwealth v HREC [2000] FCVA 1150; Kumaran v Rail Infrastructure Corporation [2005] NSWADT 30 at [73-74]; Nesci v TAFE Commission of NSW (No2) [2005] NSWADT 183 [143-145]
[15] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 91, 102 and 152; NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 80-81; Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73, 88
[16] Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65; Hall v Sheilban (1989) 20 FCR 217, 238-9
[17] Transcript of proceedings 24 March 2016 page 22, line 35
[18] Transcript of proceedings 24 March 2016 page 27, line 40
[19] Transcript of proceedings 24 March 2016 page 24, line 40; page 32, line 35
[20] Transcript of proceedings 24 March 2016 page 26, line 15
[21] Transcript of proceedings 24 March 2016 page 25 line 40
[22] Transcript of proceedings 24 March 2016 page 29, line 20
[23] Transcript of proceedings 24 March 2016 page 29, line 40
[24] Transcript of proceedings 24 March 2016 page 31, line 40
[25] Transcript of proceedings 24 March 2016 page 29, line 5
[26] Transcript of proceedings dated 24 March 2016 page 35, line 35
[27] Transcript of proceedings 24 March 2016 page 61, line 10
[28] Transcript of proceedings 24 March 2016 page 60, line 40; page 61, line 20
[29] Transcript of proceedings 24 March 2016 page 57, line 35 and 40
[30] Transcript of proceedings 24 March 2016 page 57, line 10
[31] Transcript of proceedings 24 March 2016 page 58, line 10
[32] Transcript of proceedings 24 March 2016 page 59, line 35
[33] Transcript of Proceedings 24 March 2016 page 55 line 40, page 56 line 10
[34] Transcript of Proceedings 24 March 2016 page 51, line 35
[35] Transcript of Proceedings 24 March 2016 page 56, line 25; page 65 line 35; page 66 line 35
[36] Transcript of Proceedings 24 March 2016 page 51 line 40; page 52 line 25; page 53 line 5 and page 56 line 25
[37] Transcript of Proceedings 24 March 2016 page 54 line 10; page 56 line 30
[38] Transcript of Proceedings 24 March 2016 page 54, line 25
[39] Transcript of Proceedings 24 March 2016 page 67 line 10; page 68 line 15
[40] Transcript of Proceedings 24 March 2016 page 67, line 30
[41] Transcript of Proceedings 24 March 2016 page 68, line 5
[42] Transcript of Proceedings 24 March 2016 page 71, line 30
[43] Transcript of Proceedings 24 March 2016 page 77, line 10
[44] Transcript of Proceedings 24 March 2016 page 77, line 35
[45] Transcript of Proceedings 24 March 2016 page 81
[46] Section 30 of the HRA
[47] Section 40B(1)(a), (b) of the HRA
[48] Section 72
[49] Section 23
[50] Section 31(1)
[51] Section 46
[52] Section 48
[53] Section 8 of the Equal Opportunity Act 2010
[54] Section 9 of the Equal Opportunity Act 2010
[55] Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 211; Bropho v Western Australia [2007] FCA 519 at [303]; Australian Medical Council v Wilson [1996] FCA 1618, per Sackville J at [35ff]
[56] King-Ansell v Police [1979] 2 NZLR 531 at 543
[57] Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18; Commonwealth v Human Rights & Equal Opportunity Commission (Dopking No1) (1993) 46 FCR 191, 207
[58] Thomson v Orica Australia (2002) 116 IR 186, 168
[59] Waters v Public Transport Corporation (1991) 173 CLR 349 at 393; Australian Medical Council v Wilson [1996] FCA 1618; Edgley v Federal Capital Press of Australia [2001] FCA 379
[60] Minns v NSW [2002] FMCA 60; Commissioner of Fire Brigades (NSW) v Lavery (2005) EOC 93-378; Australian Medical Council v Wilson [1996] FCA 1618, Heerey J at [65]; Willis v State Rail Authority of NSW (1992) EOC 92-455
[61] Thomson v Orica Australia (2002) 116 IR 186 at 160; Purvis v NSW (2003) 217 CLR 92 at 236; Waters v Public Transport Corporation [1991] 173 CLR 349
[62] Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
[63] Kapoor v Monash University (2001) 4 VR 483
[64] Purvis v State of NSW [2003] 217 CLR 92, 157
[65] Ibid 169
[66] Waters v Public Transport Corporation (1991) 173 CLR 349, 378-9
[67] Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218, page 18
[68] Ibid 18
[69] Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218, page 13
[70] Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 page 17
[71] Ibid
[72] Ibid 19
[73] Ibid
[74] Ibid 17
[75] Ibid 18
[76] Ibid 19
[77] Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 page 13
[78] Ibid
[79] Ibid 13
[80] Ibid 17
[81] At [51]-[53]
[82] At [88]
[83] Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311 per Davies J page 10; per Beaumont J page 2
[84] Ibid 11
[85] Ibid 17
[86] Ibid 11
[87] Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311 page 55ff
[88] Waters at 409-410, per McHugh J; see also at 378, per Brennan J; at 394-396, per Dawson and Toohey JJ; at 383-384, per Deane J; at 365, per Mason CJ and Gaudron J; Dopking (No2), at 96, per Lindgren J
[89] Dopking (No 2), at 82-83, per Lockhart J
[90] Waters at 411, per McHugh J, Dopking (No2), at 83, per Lockhart J; Dopking (No 2), at 96, per Lindgren J; Wilson, at 62, per Heerey J
[91] At [24]-[29]
[92] At [31]-[44]
[93] At [51]-[55]
[94] See Northern Regional Health Authority case and the Sydney University Postgraduate Association cases for examples of this approach
[95] See the Northern Regions Health Authority case at [183]
[96] See the Northern Regional Health Authority case
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