On 30 June 2016 the ACT Civil and Administrative
Tribunal (ACAT) handed down its decision in Wang
v Australian Capital Territory [2016] ACAT 71, finding that ACT Hospitals
had discriminated against Mr Wang, an overseas trained doctor by following its
Intern Policy which favoured local medical students to overseas trained doctors
in allocating internship places. In this blog post I examine the reasoning of
the tribunal and consider whether the decision will result in less internship
places for local medicine students.
Facts
Mr Wang was a neurologist in China before moving to
Australia and becoming an Australian citizen. He completed the Australian
Medical Council examinations to have his Chinese medical qualification
recognised and in 2013 applied for an internship position at Canberra Hospital
to qualify for registration as a medical practitioner.
Since 2013 the number of medical graduates applying
for internship positions has exceeded the number of internship positions
available. To combat this, states and territories entered into a number of
intergovernmental agreements on the availability of internships. ACT Hospitals
adopted an Internship Policy that prioritised applicants into 8 categories:
1. Guaranteed
first round offer: ANU graduates who do not make applications elsewhere;
2. Guaranteed
first round offer (capped at 5): domestic graduates of NSW universities;
3. First
round offer not guaranteed: graduates of other Australian universities who
completed Year 12 in the ACT;
4. First
round offer not guaranteed: ANU graduates not offered a category 1 placement;
5. First
round offer not guaranteed: graduates of other Australian universities;
6. First
round offer not guaranteed: graduates of Australian university campuses outside
Australia accredited by the AMC;
7. First
round offer not guaranteed: graduates of New Zealand universities; and
8. First
round offer not guaranteed: international medical graduates.
Under this policy, overseas trained doctors such as
Mr Wang, who was an experienced neurologist, would have no real possibility of
obtaining an internship in the ACT. In 2013 Canberra Hospital received 463
applications for 96 internship and RMO positions. Seventy eight positions were
offered to ANU medical school graduates and 18 positions were offered to
domestic graduates. Mr Wang was in category 8 and did not receive an offer. Mr
Wang was also unsuccessful for the RMO applications he made in other states and
territories. To be registered as an Australian medical practitioner, Mr Wang
was required to complete an internship of 47 weeks supervised practice. Unable
to secure an internship in Australia, Mr Wang was unable to register as a
medical practitioner.
Direct
discrimination
A person will racially discriminate against another
person if the person treats or proposes to treat the other person unfavourably
because the other person has an attribute referred to in section 7 (Section
8(1)(a) of the ACT’s Discrimination Act
1991 (Discrimination Act)). “Race” is an attribute in s.7 and is defined as
including ethnicity, national origin and nationality. The intention of ACT
Hospital’s Intern Policy is to distinguish between people of Australian
national origin and those who are not, a differentiation that exists in the
policy despite the fact a person of non-Australian national origin may be an Australian
citizen, as is the case for Mr Wang. The concept of “attribute” is extended by
s.7(2) of the Discrimination Act to include ‘characteristics’ that people
claiming to be the subject of the discrimination ‘generally have’ or ‘are
generally presumed to have’. ‘Characteristic’ includes more than just the
physical features of a people of national origin and extends to their education.
The Intern Policy does not consider the merits of the university or the quality
of the degree. For the Intern Policy to distinguish only on the national
location of the university is a criteria that operates as a proxy for national
origin. As the elements in s.8(1)(a) were satisfied, Senior Member Anforth
found that direct racial discrimination had occurred.
Indirect
discrimination
After finding that direct discrimination had
occurred, Senior Member Anforth considered Mr Wang’s alternative argument, that
indirect discrimination had occurred. For indirect discrimination to be
established, the criteria in sections 8(1)(b), 8(2) and 8(3) of the Discrimination
Act must be satisfied.
Section 8(1)(b) of the Discrimination Act provides
a person discriminates indirectly against another person if “the person imposes
or proposed 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”. “Race” is an attribute in s.7. ACAT found that:
·
The relegation of overseas trained doctors to
the last category of the Intern Policy amounts to the imposition of a condition
on those doctors, including Dr Wang;
·
The relegation to the last category of the Intern
Policy disadvantages those doctors, including Dr Wang;
·
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 s.7 of the DA Act.
These factors are prima facie sufficient for a
finding of indirect discrimination in the DA Act.
Section 8(2) provides that indirect discrimination
will not have occurred where the condition or requirement is reasonable in all
the circumstances (“reasonableness defence”). The onus is on the respondent to
the discrimination claim to establish the condition was reasonable in all the
circumstances. The primary motivation for the Intern Policy was to protect the
viability of ANU Medical School by providing guarantees to students who enrol
that they will obtain an internship position in the ACT on completion of their
studies. ACAT accepted that the financial and academic standing of the ANU was
a relevant consideration but needed to be weighed against the discriminatory
nature of the Intern Policy itself.
Section 8(3) provides that 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.
Senior Member Anforth identified the main
motivations for the policy as maintaining the financial and academic standing
of ANU medical school and to comply with ACT hospital’s perception of COAG’s
intention. However, notes from COAG and AHMAC meetings did not evidence an
intention that overseas trained doctors should be excluded from practice to
favour domestic graduates or that graduates from within a state or territory should
be favoured over domestic graduates from other states or territories.
There were a number of factors weighing against
these including the extremity of the consequences to Mr Wang, the prima facie undesirability
of government policies that are intrinsically discriminatory on the basis of
race, the fact that COAG minutes did not envisage an outcome that overseas
trained doctors be excluded from eligibility to practice, the unfairness given
it had been represented to Mr Wang that after he completed his AMC examinations
he could be considered for an internship on his merits, and it is possible to
have a merit based system to assess internship applicatns. The “reasonableness”
defence was not made out, and indirect discrimination was found to have occurred.
What
happened to Mr Wang?
ACAT ordered that ACT Hospitals reconsider Mr
Wang’s application on its merits for the next round of internships. ACAT also
ordered ACT hospitals make the decision:
·
Free from the assumption that ANU graduates
would be superior in merit just by reason of the fact that they are recent ANU
graduates;
·
Free from the assumption that the undergraduate
clinical placements of ANY students is superior clinical experience to Mr
Wang’s years of clinical experience, years spent working in aged care in
Australia, and additional study undertaken in Australia.
While Mr Wang was awarded $40,000 in compensation,
there is no guarantee Mr Wang will be successfully placed into an internship
program in the ACT. However, given Mr Wang was a senior medical practitioner in
China, he would presumably rank highly in merits against recent medical school
graduates.
Implications
for medical interns around Australia
ACT Hospitals are required to rethink their Intern
Policy and ensure allocation is based on merit. When applicants are considered on merit,
overseas trained doctors may be offered internships over domestic medical
school graduates, with the effect being some domestic medical students may miss
out. Other hospitals have similar policies to that used by ACT Hospitals in
allocating places for interns. While
there is a chance these policies are also discriminatory and will have to be
revised, this conclusion could vary due to the differences in
anti-discrimination laws across Australia’s states and territories.
Not all anti-discrimination legislation contains the
extended definition of ‘attribute’ which was essential to ACAT’s decision,
though the anti-discrimination legislation in Victoria and NSW does contain the
extended definition:
·
Racial
Discrimination Act 1975 (Cth) (RD Act)– s.9 does not contain an equivalent
of the extended definition of attribute contained in s.7(2) of the ACT
Discrimination Act.
·
Equal
Opportunity Act 2010 (Vic) (EO Act)– contains an extended definition of
attribute.
·
Anti-Discrimination
Act 1977 (NSW) (AD Act) - contains an extended definition of attribute
Also note that the DA Act does not contain a “comparative
test” for direct discrimination which is found in other but not all jurisdictions.
Senior Member Anforth was of the view that Mr Wang’s case would have passed a
comparative test regardless.
In regards to indirect discrimination arguments, the
‘reasonableness’ test appears in various forms in Commonwealth and state
anti-discrimination laws:
·
RD Act – ‘reasonableness’ test in s.9(1A)(a)
requires the action, requirement or condition first be shown to be ‘not
reasonable’ before discriminatory conduct is shown to exist
·
EO Act – test for indirect discrimination
contains a test framed in terms of the
actions, requirement or condition being ‘not reasonable’, with the person
imposing the requirement bearing the onus of showing that it is ‘reasonable’.
·
AD Act – the act, requirement or condition must
be shown to be unreasonable before indirect discrimination is found to exist.
An intern policy should permit a practical and not
a merely theoretical chance of selection. In the ACT Hospitals’ Intern Policy
the chance of an overseas trained doctor being selected for an internship was merely
theoretical and remote. ACAT suggests that a policy that ranks universities
based on the quality of the university and courses would be appropriate as well
as the merit of the individual applicant. While changes may occur to internship
selection practices in the ACT, it is likely other hospitals will wait until
their policies are challenged before changing internship selection practices,
especially given practice in most states and territories is to favour local
applicants prior to considering merit.
