Australian Capital Territory v Wang
[2019] ACAT 65
•15 July 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AUSTRALIAN CAPITAL TERRITORY v WANG (Appeal) [2019] ACAT 65
AA 62/2016
Catchwords: APPEAL – discrimination – racial discrimination – ACT policy to prioritise grants of medical internships to graduates of the ANU Medical School and graduates of interstate universities over overseas trained doctors – whether the policy constituted direct racial discrimination under sections 8 and 10 of the Discrimination Act 1991 – whether the policy constituted indirect racial discrimination under sections 8 and 10 of the Discrimination Act 1991 - whether orders made by the Original Tribunal were within power and appropriate
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 9, 11, 23, 26, 48, 53, 54, 55, 57, 74, 82
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Discrimination Act 1991 ss 4, 7, 8, 10, 70
Equal Opportunity Act 1984 (Vic) s 17
Equality Act 2010 (UK)
Human Rights Act 2004 ss 21, 30
Human Rights Commission Act 2005 ss 21, 30, 53E
Legislation Act 2001 s 139
Racial Discrimination Act 1975 (Cth) s 9
Cases cited:Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618
Australian Capital Territory v ACT Civil and Administrative Tribunal & Anor [2015] ACTSC 370
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Bropho v Western Australia [2007] FCA 519
Commonwealth v Human Rights and EqualOpportunity Commission (Dopking No 1) (1993) 46 FCR 191
CommonwealthBank of Australia v Human Rights and Equal Opportunity Commission (Finance Sector Union Case) (1997) 80 FCR 78Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104
Ealing London BC v Race Relations Board [1972] AC 342Edgley v Federal Capital Press of Australia [2001] FCA 379
Essop and Others v Home Office (UK Border Agency) [2017] UKSC 27
Hinder v The Salvation Army (NSW) Property Trust (No 3) (2017) NSWCATAD 16
Howe v Qantas Airways Limited [2004] 188 FLR 1IW v Perth (1998) 191 CLR 1
Kapoor v Monash University (2001) 4 VR 483
King-Ansell v Police [1979] 2 NZLR 531
Kovac v Australian Croatian Club Ltd (No 2) [2016] ACAT 4Kuyken v Lay (2013) 240 lR 89
Legal Practitioner v Council of the Law Society [2016] ACTCA 35
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Naeem v Secretary of State for Justice [2017] UKSC 27
Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 216
O’Connor v Victoria [2004] VCAT 1040
Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11Phillip v NSW [2011] FMCA 308
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132Purvis v NSW (2013) 217 CLR 92
Re Islam (2010) 4 ACTLR 235
Repatriation Commission v Smith (M J) (1987) 74 ALR 537
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR 561
Sydney University Postgraduate Representative Association v the Minister for Transport Services [2006] NSWADT 83
Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31Thomson v Orica Australia Pty Ltd [2002] FCA 939
Walker v NSW [2003] NSWADT 13
Walker (by his next friend Walker) v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284Wang v Australian Capital Territory [2015] ACAT 5
Wang v Australian Capital Territory [2016] ACAT 71Waterhouse v Bell (1991) 25 NSWLR 99
Waters v Public Transport Corporation [1991] HCA 49
List of
Texts/Papers cited: Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice, 4th edition, 2012
Enid Campbell and Louis Waller (ed) Well and truly tried: essays on evidence in honour of Sir Richard Eggleston (1982)
Neil Rees, Simon Rice, and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law 3rd edition, 2018
Tribunal:President G Neate AM
Senior Member P Spender
Date of Orders: 15 July 2019
Date of Reasons for Decision: 15 July 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 62/2016
BETWEEN:
AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:
QINGLIN WANG
Respondent
APPEAL TRIBUNAL: President G Neate AM
Senior Member P Spender
DATE:15 July 2019
ORDER
The Appeal Tribunal orders that:
1.The appeal be allowed, the complaint by Dr Wang be dismissed, and the orders made by the Original Tribunal be set aside.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Contents
REASONS FOR DECISION
Introduction
The Policy and how its implementation affected Dr Wang
Legislation relevant to the appeal
A brief history of the original litigation
The appeal hearing and requests for further evidence
What the Original Tribunal decided
Overview
‘Attributes’ and ‘characteristics’ - section 7 of the Discrimination Act 1991
‘Direct’ and ‘indirect’ discrimination
Discrimination ‘because of … the attribute’
Finding of direct racial discrimination
Finding of indirect racial discrimination
The ‘reasonableness’ test - section 8 of the Discrimination Act 1991
Award of compensation
Remedy
Questions to be decided on appeal – an overview
Direct discrimination
The ACT’s submissions
Dr Wang’s submissions
Consideration of direct discrimination
The attribute and the characteristic extension
The relevant characteristic and national origin
Conclusion on direct discrimination48
Indirect discrimination
Submissions
Consideration of indirect discrimination
The existence of a ‘condition or requirement’
The condition or requirement that was imposed
The effect of the imposed condition – does it disadvantage people with an attribute covered by the Act?
The disadvantage occurred because people have an attribute covered by the Act
Reasonableness
Conclusion on indirect discrimination
Remedies
The ACT’s submissions
Dr Wang’s submissions
Consideration and conclusion
Orders
REASONS FOR DECISION
Introduction
1.The reasons below explain why the Appeal Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Original Tribunal’ refers to the tribunal which made the first instance decisions dated 16 January 2015[1] and 30 June 2016.[2] ‘Appeal Tribunal’ refers to the presently constituted tribunal. The appellant is referred to as ‘the ACT’ and the respondent is referred to as Dr Wang.[3]
[1] Wang v Australian Capital Territory [2015] ACAT 5
[2] Wang v Australian Capital Territory [2016] ACAT 71
[3] Qinglin Wang is referred to as Dr Wang in these reasons for decision because he holds relevant academic qualifications from an international university.
2.Qinglin Wang is a medical doctor. He holds a MBBS and a Masters degree in neurology from the Tianjin Medical University in China. He worked at the Tianjin Medical University between August 1984 and January 2001. He held the positions of Director of Neurology and Department and Consultant Neurologist from September 1998 to January 2001.
3.Dr Wang migrated to Australia in 2001. He is a permanent resident of Australia and became an Australian citizen in 2006. 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 Canberra. He seeks general registration to practise as a health practitioner in Australia. His degrees have been formally recognised by the relevant authorities in Australia. Between 2006 and 2014, Dr Wang undertook relevant studies, completed relevant courses and passed relevant examinations. He has satisfied all the requirements for registration as a health practitioner in Australia, except that he needs to complete a one-year internship in an Australian hospital.
4.In 2013, Dr Wang applied for an internship and the position of Resident Medical Officer (RMO) at The Canberra Hospital. Both positions were to commence in 2014. He also applied for RMO positions in other states and territories of Australia. He was unsuccessful in all of his applications.
5.In 2013, The Canberra Hospital received 463 applications for 96 internships and RMO positions. The applications were sorted into eight categories in accordance with an internship policy approved by the Australian Capital Territory (ACT) Health Minister (the Policy). The Policy created priority Categories 1 to 8 by reference to the geographic location of the university from which an applicant’s medical qualifications were obtained.[4] Category 8 was for international medical graduates (IMGs). Dr Wang came within that category. Most of the available positions were offered to and accepted by graduates of the Australian National University (ANU) Medical School (who came within Category 1). The remaining positions were offered to graduates of other Australian universities. There were insufficient places available for the ACT to offer a position to any person in Category 8.
[4] The criteria for the categories set out in the Policy are quoted below
6.Dr Wang lodged a complaint with the Human Rights Commission, claiming to have been treated unfavourably due to his age[5] and race during the 2013 selection process. The matter was not resolved and, after a series of proceedings in the ACAT and the Supreme Court of the ACT,[6] the Original Tribunal found in 2016[7] that the ACT had engaged in:
(a)an act of ‘direct’ discrimination under sections 8(1)(a) and 10 of the Discrimination Act 1991 (Discrimination Act) against Dr Wang on the basis of his race; or
(b)an act of ‘indirect’ discrimination under sections 8(1)(b) and 10 of the Discrimination Act against Dr Wang on the basis of his race,
[5] Dr Wang did not press the ‘age’ basis of his complaint in the current proceedings
[6] A summary of the proceedings is set out below
[7] Wang v Australian Capital Territory [2016] ACAT 71
by the implementation of the Policy regarding the intake of medical internships into ACT hospitals and the relegation of overseas trained doctors to the last category of the Policy.
7.The Original Tribunal ordered, in summary, that:
(a)Dr Wang be considered on his merits for the next internship intake;
(b)consideration of Dr Wang’s merits should be free of any assumptions to the effect that:
(i) all ANU graduates would be superior candidates to the applicant on the merits just by reason of the fact that they are recent ANU graduates; or
(ii) the undergraduate clinical placements of ANU students is superior clinical experience, or preparation 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 course he has undertaken since coming to Australia; and
(c)the ACT is to pay Dr Wang the sum of $40,000 in compensation for the anxiety, embarrassment and humiliation he suffered by reason of the ACT’s discriminatory conduct.
8.The ACT appealed against the 2016 decision of the Original Tribunal. On the application of the ACT, and by consent, the decision made by the Original Tribunal in the 2016 decision was stayed.
9.The parties agreed that the appeal should proceed as a review of the decision of the Original Tribunal.[8]
[8] See orders dated 15 August 2016, and ACT Civil and Administrative Tribunal Act 2008 section 82(b)
10.The parties provided the Appeal Tribunal with detailed oral and written submissions supplemented by a range of decisions from courts and tribunals in Australia, New Zealand and the United Kingdom that considered and applied statutory provisions similar to the sections of the Discrimination Act that are germane to the present appeal.
11.In preparing these reasons for decision, the Appeal Tribunal has given detailed consideration to:
(a)the Policy and how its implementation affected Dr Wang;
(b)the relevant provisions of the Discrimination Act and other legislation;
(c)the history of the proceedings leading to the 2016 decision of the Original Tribunal that is the subject of this appeal; and
(d)the questions posed by the ACT in its appeal against that decision.
The Policy and how its implementation affected Dr Wang
12.In 2013-2014 the ACT implemented the Policy which prioritised applicants for internship in ACT hospitals. Under the Policy, some graduates from the ANU Medical School came within Category 1. Graduates of various other Australian universities and some graduates of the ANU Medical School came within Categories 2 to 6. Graduates from New Zealand universities came within Category 7, and other IMGs comprised Category 8.
13.The criteria for inclusion in those categories, and the expected implications of being in a particular category for a first round offer of internship, were specified in the Policy as follows:
Table 1
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 to any other Australian State or Territory (or other international institution), with the exception of an application for the Rural Preferential Recruitment Scheme.
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 Australian Medical Council.
Category 7: First Round Offer - Not Guaranteed
Graduates of New Zealand Universities.
Category 8: First Round Officer - Not Guaranteed
International Medical Graduates.
14.The Original Tribunal noted evidence about the apparent origins of, policy considerations underpinning, and rationale for the Policy.[9]
[9] Wang v Australian Capital Territory [2016] ACAT 71 at [21]-[28], [31]-[36], [66]-[70]
15.The Original Tribunal referred to a statement from Ms Corey (the Director Medical Support, Credentialing, Employment and Training Unit (MOSCETU) of ACT Health) which set out the history of Dr Wang’s application in 2014. As stated above, there were 463 applications for 96 positions of which 78 were from ANU graduates and 135 were from overseas trained doctors who were in Category 8. The remainder were from graduates of other Australian universities. The offers of internships included all the ANU graduates in Category 1 and 18 other Australian-trained graduates (down to Category 5). No New Zealand or other overseas trained graduates were offered a position. Ms Corey’s statement makes it clear that Dr Wang and the other overseas trained graduates were not considered because they were in Category 8 of the Policy. There is no suggestion that they were excluded on merit grounds.[10]
[10] Wang v Australian Capital Territory [2016] ACAT 71 at [37], [38]
16.The Original Tribunal also referred to evidence of Professor Bowden (Director of Post Graduate Medical Education of ACT Health) that:
(a)if Dr Wang had applied a year or two earlier (that is, in 2011 or 2012) it was almost certain that he would have been employed as an intern;[11]
(b)it was unlikely that an overseas trained doctor could now succeed under the Policy that existed in 2014;[12] and
(c)Category 8 for overseas trained doctors was removed from the Policy in 2015 so that they were now not considered at all.[13]
[11] Wang v Australian Capital Territory [2016] ACAT 71 at [68], [110]
[12] Wang v Australian Capital Territory [2016] ACAT 71 at [70]
[13] Wang v Australian Capital Territory [2016] ACAT 71 at [71], [113]
17.The Original Tribunal observed that:[14]
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.
Legislation relevant to the appeal
[14] Wang v Australian Capital Territory [2016] ACAT 71 at [4]
18.The Discrimination Act provides the legal framework in which the appeal has to be decided. The extracts quoted below are from the sections as they were at the relevant date. Some provisions were amended subsequently.
19.Section 10 made it unlawful for an employer to discriminate against a person in particular ways. It provided:
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.
20.Section 8 of the Discrimination Act described in the following terms what constitutes discrimination:
(1) For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
(2) Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(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.
21.The Discrimination Act applies to discrimination on the ground of any of the attributes listed in section 7(1) (protected attributes). At the relevant time that list included ‘race’ at section 7(1)(h). The Dictionary to that Act provided that ‘race’ included ‘colour, descent, ethnic and national origin and nationality.’ Section 7(2) provided:
(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.
22.Section 4A(2) of the Discrimination Act provided:
(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.
23.Section 70 of the Discrimination Act 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.
24.Section 53E of the Human Rights Commission Act 2005 provided as follows at the date of the Original Tribunal’s decision:
(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. …
A brief history of the original litigation
25.The proceedings leading to the appeal took some years and followed an unusual course. For present purposes, that course can be summarised briefly.
26.On 28 October 2013, Dr Wang 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 RMOs at the Canberra Hospital. Conciliation hearings in March 2014 produced no outcome, and on 1 May 2014 the Human Rights Commission determined that the matter was not suitable for conciliation. It notified the parties accordingly. On 22 June 2014, Dr Wang instructed the Human Rights Commission to refer the matter to the tribunal. That occurred in July 2014.
27.After various procedural steps, the matter was heard by the Original Tribunal in November 2014. At that hearing, it was agreed between the parties and the Original Tribunal that the Original Tribunal would give an interim decision as to whether the case involved direct or indirect discrimination under the Discrimination Act, but that the Original Tribunal would not consider the reasonableness of any discrimination until further submissions were made by the parties.[15]
[15] Wang v Australian Capital Territory [2015] ACAT 5 at [31]
28.In a decision dated 16 January 2015[16] (the 2015 decision), the Original Tribunal concluded that it was satisfied that the ACT had both directly and indirectly discriminated against Dr Wang on the grounds of his race by implementing the Policy and placing Dr Wang in Category 8. Consequently, the Original Tribunal directed the Registrar of the Tribunal to list the application for further directions as soon as possible.
[16] Wang v Australian Capital Territory [2015] ACAT 5
29.In July 2015, the ACT applied to the Supreme Court of the ACT for an order in the nature of prohibition directed to the senior member who constituted the Original Tribunal to prevent him from further hearing the complaint of discrimination under the Discrimination Act. The basis for the application was that the proceedings, if permitted to continue, would involve a denial of procedural fairness by reason of an apprehension of bias.[17]
[17] Australian Capital Territory v ACT Civil and Administrative Tribunal & Anor [2015] ACTSC 370 at [1]
30.In detailed reasons for decision published on 1 December 2016, Mossop AsJ (as his Honour then was) refused the claim for an order in the nature of prohibition and ordered that the Supreme Court proceedings be dismissed.[18]
[18] Australian Capital Territory v ACT Civil and Administrative Tribunal & Anor [2015] ACTSC 370 at [88], [89]
31.When the matter returned to the Original Tribunal, the parties jointly asked the Original Tribunal to set aside its previous interim decision and to rehear that matter. The parties contended that the issues had not been fully argued on the first occasion, and hence the findings by the Tribunal were infected with an error of law. On 6 January 2016, the Original 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 Original Tribunal formally set aside the previous interim decision.[19]
[19] Wang v Australian Capital Territory [2016] ACAT 71 at [9]
32.In March 2016, the Original Tribunal heard the case. The issues for the Tribunal were:
(a)whether ‘direct discrimination’ on the basis of ‘race’ (defined to include ethnicity, national origin and nationality) had occurred, as defined in sections 7, 7(2) and 8(1) of the Discrimination Act;
(b)in the alternative, whether ‘indirect discrimination’ has occurred, as defined in sections 7, 7(2), 8(2) and 8(3) of the Discrimination Act;[20]
(c)whether direct and indirect discrimination are mutually exclusive categories;[21] and
(d)if there had been discrimination, what penalty would be appropriate.[22]
[20] Wang v Australian Capital Territory [2016] ACAT 71 at [12]
[21] Wang v Australian Capital Territory [2016] ACAT 71 at [117]
[22] Wang v Australian Capital Territory [2016] ACAT 71 at [11]
33.The Original Tribunal also stated that it had to determine:
(a)the construction of the term ‘characteristic’ in the section 7(2) of the Discrimination Act and whether it extends to a person’s educational background including, where relevant, the medical educational background; and
(b)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.[23]
[23] Wang v Australian Capital Territory [2016] ACAT 71 at [117]
34.Reasons for decision were published on 30 June 2016[24] (the 2016 decision). The findings and orders in the 2016 decision are the subject of this appeal.
The appeal hearing and requests for further evidence
[24] Wang v Australian Capital Territory [2016] ACAT 71
35.The appeal was heard on 4 April 2017. Each party was represented by counsel. The parties provided detailed written and oral submissions. The Appeal Tribunal reserved its decision.
36.Having carefully considered the material available to the Original Tribunal, the Appeal Tribunal was not able to find whether or not there had been indirect discrimination because of the administration of the Policy. Consequently the Appeal Tribunal wrote to the parties to inquire whether the ACT held, and could provide to the Appeal Tribunal:
(a)information about the national origin of each applicant who was offered an internship in 2014; and
(b)information about the national origin of each applicant who was not offered an internship in 2014.[25]
[25] Email from the Appeal Tribunal dated 17 May 2018
37.In response to the first question, the ACT provided the following statement from ACT Health:[26]
For the 2014 Internship Program, every applicant was asked to identify their Australian citizenship, New Zealand citizenship and permanent residency or work visa status. Every applicant was also asked to provide their Curriculum Vitae, Claims against the Selection Criteria and Referee Reports. No information was sought as to national origin.
While ACT Health did not seek data on national origin, some applicants provided additional information of their own volition and it is possible that ACT Health does hold information for those applicants relating to their national origin.
It may be possible to obtain the information held by ACT Health in relation to the National origin of those individual applicants, but it would be necessary to recall paper files from storage and manually search each of the applications.
None of the information on national origin collected, if any, was collated or used in the processing of the applications.
[26] Email from Mr Nathan Hancock to the Appeal Tribunal dated 27 June 2018
38.In response to the second question, the ACT provided the following statement from ACT Health:[27]
After an offer of employment was made, an employment contract was issued to each applicant. The contract was signed by the applicant and then the necessary personal information was collected by ACT Health for the purposes of engagement as a Territory employee. As part of that process, any contracted employee who did not hold Australian or New Zealand citizenship, permanent residency or a valid Australian work visa was asked to provide specific citizenship information (in the form of a passport) so that the necessary visa processes, including compliance with sponsorship requirements, could be undertaken by ACT Health with the (then) Department of Immigration and Border Protection.
Of the total of 96 new interns who commenced with ACT Health in 2014 (i.e. applied during the 2013 year), 84 were eligible to work in Australia, being Australian citizens, permanent residents or the holders of Australian work visas, and 12 were made eligible to work in Australia, being foreign nationals who were ultimately sponsored by ACT Health.
The citizenship information held by ACT Health will include photocopies of the passports of each sponsored employee. The information is retained for the duration of the engagement and for a period of 12 months after it has ended.
It would be possible to obtain information held by ACT Health in relation to the national origin of those employees, but it would be necessary to manually search each of their files and may be necessary to recall some files from storage.
Other than for the purpose of sponsorship, none of the information on national origin collected was collated or use in the ongoing employment relationship.
[27] Email from Mr Nathan Hancock to the Appeal Tribunal dated 27 June 2018
39.For present purposes, and without asking for the files of ACT Health to be produced, it was apparent to the Appeal Tribunal that:
(a)ACT Health did not require or ask applicants for internships in 2014 to provide information about their national origin;
(b)some applicants might have voluntarily provided information about their national origin;
(c)none of the information about national origin was collated or used in the processing of the applications;
(d)most[28] of the 96 new interns who commenced in 2014 were eligible to work in Australia because they were Australian citizens, permanent residents or holders of Australian work visas;
(e)some[29] of the 96 new interns were foreign nationals who were made eligible to work in Australia.
[28] 84 or 87.5%
[29] 12 or 12.5%
40.The information provided by ACT Health was not analysed in those terms by reference to each of the categories from which the successful applicants were drawn.
41.On the basis of that information, it was not possible to determine whether the ACT indirectly discriminated against Dr Wang on the basis of his national origin.
42.The remaining issue for the Appeal Tribunal was whether the evidence available to it was sufficient to support an informed decision about the part of the appeal in relation to indirect discrimination, or whether the Appeal Tribunal should invite the parties to provide additional information and submissions. That issue raised a number of subsidiary issues, including the role of the Appeal Tribunal in dealing with an appeal (rather than the role of a tribunal hearing the case at first instance) and, in this case, whether there was a real likelihood that additional relevant evidence exists which might inform the Appeal Tribunal about whether there was indirect discrimination.
43.In deciding how best to resolve this issue, the Appeal Tribunal considered the reasons for judgment of the Full Federal Court in Australian Medical Council v Wilson[30] (Wilson). That case concerned a scheme aimed at limiting the number of doctors practising in Australia, including overseas trained doctors (OTDs). Health ministers agreed to set a quota so that the number of OTDs permanently entering the Australian medical workforce from all sources would be kept to around 200 per annum. The scheme provided that OTDs had to sit a written examination set by the AMC followed by an oral clinical examination. The doctors who scored in the top 200 of those who completed the written examination in any one year were permitted to attempt the clinical examination.
[30] Australian Medical Council v Wilson (1996) 68 FCR 46
44.Dr Siddiqui, an Indian doctor, sat the examination on six occasions but did not come within the quota for the relevant year. He submitted that he was subject to racial discrimination because the setting of the quota and its application to him contravened section 9(1) of the Racial Discrimination Act 1975 (Cth) (which dealt with direct discrimination) and section 9(1A) of that Act (which dealt with indirect discrimination). The Human Rights and Equal Opportunity Commission rejected the claim based on direct discrimination but upheld his complaint under section 9(1A), on the basis that the requirement was applied unreasonably in his case.
45.The AMC and the Commonwealth Minister for Health applied to the Federal Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Full Federal Court set aside the determination of the Commission and dismissed Dr Siddiqui’s complaint.
46.The Court clearly stated that it was for Dr Siddiqui to make out his case. Heerey J concluded:[31]
Relevantly, the only way Dr Siddiqui could make out a case to satisfy s 9(1A)(c) would be to show that OTDs of Indian national origin who met the quota formed a lower proportion of all OTDs meeting the quota than the proportion that all Indian OTDs applying for registration bore to all OTD applicants. In other words, the question would be whether the quota requirement had a disproportionate adverse impact on the OTDs of Indian national origin. There was no attempt to make out such a case.
[31] Australian Medical Council v Wilson (1996) 68 FCR 46 at 64
47.In his reasons for judgment, Sackville J stated, “[p]ersons of Indian origin who have not graduated from accredited medical schools must comply with precisely the same requirements as persons of Australian or New Zealand origin who have not graduated from those medical schools.” He added that there was “nothing to suggest” that persons of Indian origin were disadvantaged by the examination and quota requirements, when compared with other groups subject to the same requirements.[32]
[32] Australian Medical Council v Wilson (1996) 68 FCR 46 at 82-83
48.Sackville J continued:[33]
As Heerey J has pointed out, no attempt was made to make out a case that persons of Indian origin performed more poorly than other groups of OTDs required to undertake the AMC examination. Indeed, material prepared by [counsel for Dr Siddiqui], based on AMC data, showed that no such case could be made out.
[33] Australian Medical Council v Wilson (1996) 68 FCR 46 at 83
49.It is apparent that the Court limited itself to, and provided its own analysis of, the evidence before it in relation to the case put by Dr Siddiqui. The quoted statements suggest that the Appeal Tribunal should confine itself to the evidence before the Original Tribunal and the submissions in relation to the meaning of that evidence for the purpose of deciding this appeal.
50.Helpful as those judicial observations are, they were made by a court in a different statutory context. The question before the Appeal Tribunal must be considered in the context of statutory provisions relevant to these proceedings.
51.The ACAT Act provides, in section 82, that an appeal tribunal may, as the tribunal considers appropriate, deal with an appeal:
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
52.With the agreement of the parties, the present appeal was conducted and heard on the latter basis. Accordingly, it falls to this Appeal Tribunal to decide the case by reference to the evidence before the Original Tribunal in light of the parties’ submissions and the applicable law. The Appeal Tribunal need not, and would not be expected to, go beyond that material.
53.However, section 26 of the ACAT Act provides that the tribunal may inform itself in any way it considers appropriate in the circumstances.[34] In this case, having reserved the decision on the appeal, the Appeal Tribunal wrote to the parties in the terms set out at [36] above. The response from ACT Health (referred to at [37] and [38] above) clearly stated that:
(a)every applicant was asked to identify their Australian citizenship, New Zealand citizenship and permanent residency or work visa status;
(b)no information was sought as to national origin;
(c)some applicants might have provided information about their national origin, but it would be necessary to manually search paper files to locate any such information.
[34] See also the Note to section 8 of the ACAT Act
54.As part of the employment arrangements, each person who was offered an internship and who did not hold Australian or New Zealand citizenship, permanent residency or a valid Australian work visa was asked to provide specific citizenship information (in the form of a passport) so that the necessary visa processes could be undertaken by ACT Health. Other than for the purpose of sponsorship, none of the information on national origin collected was collated or used in the ongoing employment relationship. The citizenship information held by the ACT would include photocopies of passports of each sponsored employee. Any information held by ACT Health in relation to the national origin of those employees could be obtained by manual searches of their files.
55.Having carefully considered the role of the Appeal Tribunal and the evidence before it, including additional evidence provided by way of responses to correspondence, the Appeal Tribunal concluded that there might be some utility in asking ACT Health to undertake a manual search of its files for any information about the national origin of applicants for internships in 2014. The correspondence alludes to the possibility that manual searches of applications might disclose some additional information about the national origin of some of the applicants (successful and unsuccessful). Such information might be incomplete so that any statistically defensible decisions could not be made as to whether Dr Wang was subject to indirect discrimination. Conversely the additional information might be sufficient to support an analysis, in accordance with the discussion above, of whether Dr Wang was subject to indirect discrimination. The Appeal Tribunal considered that the cost, effort and further delay involved in obtaining the information at that stage was justified and proportionate.[35]
[35] Arguably this approach finds support in, or at least is consistent with, the objects of the Discrimination Act1991 (section 4) and in sections of the Human Rights Act 2004 dealing with a fair trial (section 21) and the interpretation of laws and human rights (section 30). See also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
56.On 5 November 2018, the Appeal Tribunal wrote to the parties advising that its reasons for decision were almost complete subject to:
(a)requesting the parties to provide some additional information; and
(b)convening a further directions hearing to consider the form that information might take and a program for further submissions on one specific issue.
57.The Appeal Tribunal further advised that there were two outstanding issues:
(a)consideration of the application of the definition of ‘indirect discrimination’ in section 8(1)(b) of the Discrimination Act; and
(b)the findings and conclusions the Appeal Tribunal should make in relation to the decision of the Original Tribunal in relation to remedies.
58.Each party was provided with a confidential draft incomplete set of reasons for decision which included the Appeal Tribunal’s conclusion in relation to direct discrimination, and an analysis of the legal requirements in respect of indirect discrimination.
59.At that stage, the Appeal Tribunal had decided that it would be assisted by additional information concerning the applicants for internships in 2014. The Appeal Tribunal requested ACT Health to undertake a manual search of the applications for those internships and documentation in relation to those applicants who were offered internships to identify any information provided to ACT Health about the national origin of each applicant (whether successful or unsuccessful). On 8 November 2018, the Appeal Tribunal made directions for further evidence and the provision of a table or tables, and also directed the parties to provide submissions.
60.On 1 March 2019, the ACT provided the information requested by way of a statement of Ms Janelle Corey, the Director of MOSCETU. Ms Corey was responsible for overseeing the selection process in 2013 for intern positions at The Canberra Hospital commencing in 2014. Her statement included the tables requested by the Appeal Tribunal. The ACT also provided its further written submissions on that date.
61.On 17 April 2019, Dr Wang advised the Appeal Tribunal that he did not wish to make further submissions. The additional evidence provided by the ACT in March 2019 is considered below.
62.Against the background of the somewhat unusual history of this litigation, the Appeal Tribunal will proceed to consider what the Original Tribunal decided and the questions to be decided on appeal about whether the ACT discriminated directly or indirectly against Dr Wang on the basis of his race.
What the Original Tribunal decided
Overview
63.In the course of giving detailed reasons, the Original Tribunal considered the applicable statutory provisions, including the interpretation of words and phrases in sections 7 and 8 of the Discrimination Act in light of judicial authorities, and then made findings of direct discrimination and indirect discrimination in this case.
64.Below is a summary of the Original Tribunal’s analysis of the applicable law and the reasons for the findings of direct discrimination and indirect discrimination.
‘Attributes’ and ‘characteristics’ - section 7 of the Discrimination Act 1991
65.The Original Tribunal analysed ‘attributes’ and ‘characteristics’ in section 7(1) and (2) of the Discrimination Act, as they applied in the circumstances of this case, as follows:[36]
[36] Wang v Australian Capital Territory [2016] ACAT 71 at [151]-[156], [224]
(a)the relevant attribute is ‘race’ which, as expanded by the definition in the Dictionary to the Discrimination Act, includes ‘descent, ethnic and national origin and nationality’;
(b)‘national origin’ is fixed at birth, but ‘nationality’ may change over life;[37]
[37] See Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202, 211; Bropho v Western Australia [2007] FCA 519 at [303]; Australian Medical Council v Wilson [1996] FCA 1618, at [35] ff per Sackville J
(c)‘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 …”;[38]
[38] King-Ansell v Police [1979] 2 NZLR 531 at 543
(d)Dr Wang is of Chinese ethnicity and national origin;
(e)the concept of an ‘attribute’ is extended by section 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’, and this extended definition applies to both direct and indirect discrimination;
(f)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;[39]
(g)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, extending to their education which is the context of the present complaint;
(h)the adverb ‘generally’ as it appears in section 7(2) of the Discrimination Act only requires that the characteristic be one that people with the attribute have ‘for the most part’ or ‘extensively’ or ‘in the general case’ and it is not limited to characteristics that people with the attribute necessarily have, or with few exceptions have.[40]
‘Direct’ and ‘indirect’ discrimination
[39] Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18; Commonwealth v Human Rights & EqualOpportunity Commission (Dopking No 1) (1993) 46 FCR 191 at 207
[40] Thomson v Orica Australia (2002) 116 IR 186 at [168]
66.The Original Tribunal considered itself to be compelled by authority to accept that categories of ‘direct’ and ‘indirect’ discrimination are mutually exclusive. However, the Original Tribunal stated that 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, however, direct discrimination is found, there is no need to consider the indirect discrimination question.[41]
Discrimination ‘because of … the attribute’
[41] Wang v Australian Capital Territory [2016] ACAT 71 at [157], see also [81], [101]
67.As noted earlier, section 8(1) of the Discrimination Act provides that a person discriminates against another person if they treat the other person unfavourably ‘because’ the other person has an attribute referred to in section 7 (section 8(1)(a)), or if they impose a condition or requirement that has the effect of disadvantaging people ‘because’ they have an attribute referred to in section 7 (section 8(1)(b)).
68.The Original Tribunal examined the ‘causal link’ between the condition or requirement imposed and its discriminatory impact contained in section 8(1)(b) of the Discrimination Act. The Original Tribunal’s analysis was, in summary:[42]
(a)the test is an objective one;[43]
(b)there is a difference between a person’s ‘motivation’ and their ‘reasons’ for doing an act;[44]
(c)the motivation of the alleged discriminator may be relevant in establishing the causal link, but it is not essential to show these impacts were intended;
(d)section 4A provides that the discriminatory motive does not have to be the “dominant or substantial reason for doing the act”;
(e)the test for causation in discrimination matters is whether the attribute was a “not trivial or insubstantial” reason;[45]
(f)the “because of” causal test refers to “the real reason” or “true basis” for the decision (which is not to be identified with the basis proffered by the alleged perpetrator, as genuinely assigned reasons may mask the true basis for the decision), and it does not have to be the dominant or substantial reason.[46]
[42] Wang v Australian Capital Territory [2016] ACAT 71 at [158] – [162]
[43] Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
[44] Kapoor v Monash University (2001) 4 VR 483
[45] IW v Perth (1998) 191 CLR 1 at [63]
[46] Purvis v NSW [2003] 217 CLR 92 at 157, 169; Australian Medical Council v Wilson [1996] FCA 1618 at [44]
69.The Original Tribunal referred to a direct discrimination case involving a public transport policy that applied different treatment to “full fee-paying overseas students” (where an ‘overseas student’ was a person of a nationality other than Australian). The policy meant that those students received differential treatment because of their nationality, and hence they were discriminated against on the ground of their race. The absence of discriminatory motive or intention was not relevant when considering whether the differential treatment occurred because of nationality.[47]
[47] Wang v Australian Capital Territory [2016] ACAT 71 at [163] quoting from Sydney University Postgraduate Representative Association v the Minister for Transport Services [2006] NSWADT 83 at [64], [69], [71], [75] and [77]
70.The Original Tribunal stated that the ACT had conceded that the Policy treated overseas doctors unfavourably.[48]
[48] Wang v Australian Capital Territory [2016] ACAT 71 at [164]-[165]
71.On appeal, the ACT argued that no concession was made in the terms referred to by the Original Tribunal.[49] The Appeal Tribunal does not consider that the communications on this point between counsel for the ACT and the Original Tribunal could in fact amount to a ‘concession’ and therefore treats the concession as not having been made.
Finding of direct racial discrimination
[49] Transcript of proceedings, 4 April 2017, page 20
72.The Original Tribunal described Dr Wang’s claim as a claim of discrimination in employment based on the attribute of ‘national origin,’ being a claim that there was a refusal to consider his application for a medical internship position based on his national origin, i.e. being other than Australian.[50] The discrimination rests in the intention to distinguish between people of Australian national origin and those that are not.[51]
[50] Wang v Australian Capital Territory [2016] ACAT 71 at [221]
[51] Wang v Australian Capital Territory [2016] ACAT 71 at [222]
73.The Original Tribunal held that the definition of ‘attribute’ is expanded by section 7(2) of the Discrimination Act to include ‘characteristics’ that people of a national origin ‘generally have’ but not necessarily have. These characteristics extend to their education.[52] The Original Tribunal proceeded on the basis that people across the world ‘generally’ obtain their educational qualifications, including tertiary qualifications, from educational institutions in their country of origin.[53] To differentiate only on the criterion of the national location of the university from which a medical graduate obtained their qualifications is to fix upon a criterion that generally operates as a proxy for national origin.[54]
[52] Wang v Australian Capital Territory [2016] ACAT 71 at [224]
[53] Wang v Australian Capital Territory [2016] ACAT 71 at [226]
[54] Wang v Australian Capital Territory [2016] ACAT 71 at [227]-[229], [232]
74.Following from that reasoning, the Original Tribunal found 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.[55] In this case, there was both intentionally and objectively unfavourable treatment under the Policy of Dr Wang and other overseas trained doctors.[56] Those findings were sufficient, the Original Tribunal concluded, to amount to direct discrimination.[57]
Finding of indirect racial discrimination
[55] Wang v Australian Capital Territory [2016] ACAT 71 at [233]
[56] Wang v Australian Capital Territory [2016] ACAT 71 at [234]
[57] Wang v Australian Capital Territory [2016] ACAT 71 at [236]
75.As noted earlier, the Original Tribunal accepted that direct and indirect discrimination are mutually exclusive categories within the Discrimination Act and that if direct discrimination is found, there is no need to consider the indirect discrimination question. However, the Original Tribunal proceeded to consider whether there had been indirect discrimination on the basis that if (contrary to its findings) direct discrimination is not open as a matter of law on the facts of this case, Dr Wang was entitled to have his complaint assessed under the rubric of indirect discrimination.[58]
[58] Wang v Australian Capital Territory [2016] ACAT 71 at [239]
76.By reference to the criteria in section 8(1)(b) of the Discrimination Act, the Original Tribunal found 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; and
(c)for the reasons given by the Original Tribunal in relation to direct discrimination, to differentiate on the basis of the university from which the overseas trained doctors graduated is to differentiate on the basis of an ‘attribute’ referred to in section 7 of the Discrimination Act.[59]
[59] Wang v Australian Capital Territory [2016] ACAT 71 at [241]
77.The Original Tribunal considered that those findings were sufficient to constitute prima facie indirect discrimination under section 8(1)(b).
The ‘reasonableness’ test - section 8 of the Discrimination Act 1991
78.Subsections 8(2) and 8(3) of the Discrimination Act provide that section 8(1)(b), which describes indirect discrimination from a condition or requirement, does not apply to a condition or requirement that is ‘reasonable in the circumstances.’ The Original Tribunal summarised, and in some instances critiqued, decisions from Australian, New Zealand and Canadian courts which concerned legislation with similar, but differently worded, provisions.[60]
[60] Wang v Australian Capital Territory [2016] ACAT 71 at [166]-[208].
79.Some of the judgments mentioned or quoted included the following passage from a judgment of Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles[61] about a provision in 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 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.
[61] Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at [51]
80.The Original Tribunal also referred to a statement by a Full Federal Court in Edgley v Federal Capital Press of Australia[62] that the “reasonableness test” involves “an element of wide discretionary judgement.”
[62] Citing Edgley v Federal Capital Press of Australia [2001] FCA 379 (Edgley) at [88] (sic). This proposition was stated by Deane J in Waters v Public Transport Corp (1991) 173 CLR 349 at 383 and followed by the Full Court in Edgley at [89].
81.It was then for the Original Tribunal to decide whether the Policy was ‘reasonable’ under section 8(2) having regard to the factors in section 8(3) and all the other circumstances of the case.[63]
[63] Wang v Australian Capital Territory [2016] ACAT 71 at [242], [264]
82.The Original Tribunal criticised the inconsistency and credibility of the ACT’s evidence and submissions on this point. It gave examples of assumptions inherent in the Policy, such as that ANU graduates (including the least meritorious of them) are “better” qualified for local practice than graduates of other Australian universities or overseas universities. The Original Tribunal considered the assumption offensive, and did not accept that the assumption played any role in the motivation for the Policy.[64] Nor did the Original Tribunal accept that subtle differences between medical practices in the ACT and other States/Territories exist or, if they exist, that they have any relevance or significance to the motivation for the Policy.[65] Rather, the Original Tribunal inferred that the motivation for the Policy was simply and only a motivation to promote the interests of the local graduates and the standing of the ANU Medical School with prospective students.[66]
[64] Wang v Australian Capital Territory [2016] ACAT 71 at [243]-[250]
[65] Wang v Australian Capital Territory [2016] ACAT 71 at [253], [254]
[66] Wang v Australian Capital Territory [2016] ACAT 71 at [255]
83.There was evidence that the Policy simplified the administrative tasks of those who were responsible for selecting interns. The Original Tribunal accepted that administrative convenience may not have been the prime motivation for the Policy, but found it difficult to accept that 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 was only explicable on the administrative convenience basis.[67]
[67] Wang v Australian Capital Territory [2016] ACAT 71 at [256]
84.The ACT put to the Original Tribunal that the Policy was necessary to protect the viability of the ANU Medical School. The Original Tribunal accepted the logic of that statement, and that it was the true and only motivation for the Policy,[68] but wrote:
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.[69]
[68] Wang v Australian Capital Territory [2016] ACAT 71 at [258]
[69] Wang v Australian Capital Territory [2016] ACAT 71 at [259]
85.The Original Tribunal found as a fact that the true motivations for the Policy were:
(a)a motivation to comply with the ACT’s perception of the Council of Australian Governments’ (COAG’s) intention; and
(b)a motivation to promote the economic and academic viability of the ANU Medical School.[70]
[70] Wang v Australian Capital Territory [2016] ACAT 71 at [265]
86.According to the Original Tribunal, those are relevant considerations for the purposes of section 8(2) and (3) of the Discrimination Act. 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 Australian Health Ministers’ Conference (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; and
(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.[71]
[71] Wang v Australian Capital Territory [2016] ACAT 71 at [266]
87.On balance and in all the circumstances of the case, the Original Tribunal was not satisfied that the Policy was reasonable. Therefore, it held, the Policy was indirectly discriminatory.[72]
(b)items 1 and 2 of the orders are too vague and unspecific to constitute a valid exercise of the authority conferred by section 53E(2)(b);
(c)item 3 of the orders, which is apparently an exercise of the authority to order compensation under section 53E(2)(c), is not supported by sufficient reasons or sufficiently clear reasons and part of it is not authorised by section 53E(2) and would not be authorised by section 74 of the ACAT Act; and
(d)having pronounced its orders and being functus officio, the Original Tribunal would not be capable of reconvening to make a further order.[174]
[174] See Legal Practitioner v Council of the Law Society [2016] ACTCA 35
218.For present purposes, it is only necessary to consider the submissions summarised at (b) and (c) above.
219.As to the former, the ACT submitted that orders 1 and 2 were apparently an attempt to order the ACT to perform a “stated reasonable act to redress … loss or damage” within section 53E(2)(b) of the Human Rights Commission Act 2005. The orders envisaged some process of comparison of all internship candidates (local, interstate and international) that produced a ranking so that the “best” candidates would be chosen. The ACT submitted, however, that:
(a)that was not the relief sought by Dr Wang in his submissions to the Original Tribunal;
(b)it was not the role of the Original Tribunal to decide for itself what should be done, and how;
(c)there was no consideration about what impact the orders would have on other persons;
(d)the ACT was not on notice of the proposed orders and was not given an opportunity to make submissions in relation to them;
(e)the orders would require some merit ranking system to be devised and put in place before the next intake of interns; and
(f)such a process might not result in Dr Wang obtaining any internship.
220.The ACT also submitted that the orders in this form are too vague and unspecific to constitute a valid exercise of the authority conferred by section 53E(2)(b). It highlighted the observations by the Original Tribunal about some practical difficulties in assessing Dr Wang’s application against “a smaller pool of competitors than would have been the case had the Policy not been implemented.”[175] On that basis, the ACT suggested that such a lack of clarity on the part of the Original Tribunal had a bearing on the nature of the order with which the ACT had to comply. In its submission, the ACT should know precisely what it has to do.
[175] Wang v Australian Capital Territory [2016] ACAT 71 at [272]
221.In relation to order 3 for compensation to be paid, the ACT submitted that:
(a)the losses quantified in Dr Wang’s submission to the Original Tribunal included estimates of economic loss from 2008 onwards (for example, costs associated with doing the training course and exams) and not just the loss as a result of not being selected as an intern;
(b)the reasons for awarding the amount of $40,000 are insufficient, given that the Original Tribunal offered no explanation for the amount other than to say it represents more than a token award, based on Dr Wang’s evidence of embarrassment and humiliation;[176]
(c)the amount is seven times higher than any previous ACT award, and hence does not reflect comparative verdicts having regard to community norms;[177]
(d)as to economic loss, the Original Tribunal recognised that Dr Wang had lost only a “chance” of an internship, not a guaranteed place and it is apparent from the Original Tribunal’s reasons that it did not make any award under this head;[178]
(e)however, the Original Tribunal appears to have envisaged that some award based on economic loss would be made in the event of a failure by the ACT to comply with orders 1 and 2;[179]
(f)such a contingent or punitive award for non-compliance is not authorised by section 53E(2) of the Human Rights Commission Act 2005 and would not be authorised by section 74 of the ACAT Act; and
(g)any amount of damages should be considered in the context that the case was limited to an application for internship which was a small part of the process for Dr Wang to qualify for registration.
[176] Wang v Australian Capital Territory [2016] ACAT 71 at [273], [274]
[177] See Wang v Australian Capital Territory [2016] ACAT 71 at [273]. That submission is not correct because in Kovac v Australian Croatian Club Ltd (No 2) [2016] ACAT 4, delivered in January 2016 before the decision in Wang v Australian Capital Territory [2016] ACAT 71, the ACAT awarded compensation in the sum of $62,000.
[178] Wang v Australian Capital Territory [2016] ACAT 71 at [270], [271]
[179] Wang v Australian Capital Territory [2016] ACAT 71 at [271]
222.Senior counsel for the ACT suggested that if the Appeal Tribunal found against it on all grounds, it might be appropriate for the Appeal Tribunal to publish its reasons and then invite the parties to make further submissions about the appropriate orders to give effect to those reasons.
Dr Wang’s submissions
223.At the hearing of the appeal, counsel for Dr Wang:
(a)noted that Dr Wang originally sought a declaration that the ACT had contravened the Discrimination Act and sought compensation (an approach that reflected an acceptance or acknowledgement that it would probably be extremely difficult, without completely rewriting the whole system, for Dr Wang to be somehow included into a later year’s intake on a merit basis);
(b)submitted that there was provision in the Human Rights Act for the specific remedies sought by Dr Wang;
(c)agreed with counsel for the ACT that the Original Tribunal made orders which were not sought by Dr Wang;
(d)conceded that there is real difficulty in interpreting exactly what the ACT is to do to give effect to the orders of the Original Tribunal and, in particular, whether the payment of compensation depends on there first being a merit-based approach.
224.In his written and oral submissions on appeal, Dr Wang also accepted that the Original Tribunal:
(a)did not explore the amounts of compensation that had been awarded in other cases; and
(b)ought to have referred to Part 3.1 of the Discrimination Act 1991 before awarding a sum of compensation to him.
225.Otherwise, Dr Wang submitted that section 53E(2)(c) of the Human Rights Commission Act2005 provided the necessary legislative basis for the order for compensation in his favour.
226.Counsel for Dr Wang agreed that if this Appeal Tribunal dismissed the appeal it would be appropriate to proceed in the way suggested by senior counsel for the ACT, with the Appeal Tribunal publishing its reasons and then inviting the parties to make further submissions about the appropriate orders to give effect to those reasons.
Consideration and conclusion
227.It is a necessary consequence of the Appeal Tribunal’s conclusion about the absence of direct and indirect discrimination that it sets aside the orders made in paragraphs 1 to 3 of the order of the Original Tribunal dated 30 June 2016.
228.Had the appeal in relation to discrimination been dismissed in part or in whole, the Appeal Tribunal would have dealt with the issues concerning the orders made by the Original Tribunal. In doing so, it would have been appropriate to start with the legislative scheme provided by the ACAT Act and the Human Rights Commission Act 2005, as summarised above. The relevant sections of those Acts provide the Tribunal with both the source of power to make orders and the limitations on the exercise of that power.
229.Given that the appeal is allowed, it is appropriate for the Appeal Tribunal merely to note that orders 1 and 2 made by the Original Tribunal were not in form or substance of the type prescribed by the legislation.
230.In addition, as stated above, Dr Wang did not seek an order that he be considered on his merits for the next internship intake. Rather, he sought:
(a)a declaration that the ACT had contravened the Discrimination Act; and
(b)compensation.
231.Counsel for Dr Wang conceded that this order requiring the ACT to consider Dr Wang on the next internship intake would be extremely difficult to implement without completely rewriting the whole system and that there was some difficulty in interpreting exactly what the ACT government has to do and whether or not the payment of compensation is dependent on there first being a merit-based approach.[180]
[180] Transcript of proceedings, 4 April 2017, page 72
232.Regarding the order that the ACT pay Dr Wang the sum of $40,000 the Original Tribunal stated as follows:
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.
233.Because the award of compensation was in addition to the order that Dr Wang be considered in the next intern intake, the grounds upon which the compensation was awarded are not clear. Dr Wang gave evidence about the quantum of expenses he had incurred which provided a “yardstick for the quantum that the tribunal might consider when it was attempting to work out the appropriate amount of compensation”.[181] This evidence was not subject to cross-examination by the ACT at first instance. Dr Wang did not contend that he was entitled to compensation for this full amount of those expenses.
[181] Transcript of proceedings, 4 April 2017, pages 51 and 73
234.Senior counsel for the ACT argued that this evidence was inadequate to support the quantum awarded and further evidence, probably sufficient to prove mental injury, would be necessary to support this amount.[182] The Original Tribunal did not refer to comparable verdicts at this part of the decision however there is an extended discussion[183] and various quotes from the Kovac decision that appear under the heading “The Awarding of Compensation” that appear to have been adopted by the Original Tribunal in deciding the quantum of compensation.
[182] Transcript of proceedings, 4 April 2017, page 54
[183] Wang v Australian Capital Territory [2016] ACAT 71 at [209]-[219]
235.There was clearly an issue about the basis, or bases, on which the Original Tribunal calculated the amount of compensation awarded, and hence an issue about whether that amount would have been appropriate in the circumstances of this case if the Appeal Tribunal had decided that there was direction and/or indirect discrimination.
236.These observations are recorded only to indicate why any order for compensation in discrimination cases such as this must be made carefully by reference to legal principle and relevant evidence.
Orders
237.For the reasons given above, the Appeal Tribunal orders that the appeal be allowed, the complaint by Dr Wang be dismissed, and the orders made by the Original Tribunal be set aside.
…………………………….
President G Neate AM
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AA 62/2016
PARTIES, APPLICANT:
Australian Capital Territory
PARTIES, RESPONDENT:
Qinglin Wang
COUNSEL APPEARING, APPLICANT
Ms K Eastman SC
Dr D Jarvis
COUNSEL APPEARING, RESPONDENT
Mr M Hassell
SOLICITORS FOR APPLICANT
ACT Government Solicitor
SOLICITORS FOR RESPONDENT
HWL Ebsworth
TRIBUNAL MEMBERS:
President G Neate AM
Senior Member P Spender
DATES OF HEARING:
4 April 2017
DATES OF FINAL SUBMISSIONS
17 April 2019
Development) (2011) 279 ALR 284 at [194]
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