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Australian Capital Territory v Wang

Australian Capital Territory v Wang

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Case Copied 15 July 2019 46 min read

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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 78
Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104
Ealing London BC v Race Relations Board [1972] AC 342
Edgley 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 1
IW 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 4
Kuyken 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 11
Phillip v NSW [2011] FMCA 308
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACAT 65
Decision Date: 15 July 2019

CaseChat Overview and Summary

In the Australian Capital Territory v Wang case, the appellant, Australian Capital Territory, was appealing a decision made by the Original Tribunal against the respondent, Dr Wang. The dispute arose from a complaint by Dr Wang regarding the handling of his medical records by the Australian Capital Territory. The appeal was heard by the Appeal Tribunal in the Australian Capital Territory.

The primary legal issues before the Appeal Tribunal were whether the Original Tribunal erred in its findings of fact and whether it misapplied the law in its decision. Specifically, the tribunal had to determine whether the Australian Capital Territory breached Dr Wang's privacy rights under the Privacy Act 1988 (Cth) and whether the breach was significant enough to warrant the sanctions imposed by the Original Tribunal.

The Appeal Tribunal found that the Original Tribunal had erred in its findings of fact and had misapplied the law. The tribunal held that the Australian Capital Territory had not breached Dr Wang's privacy rights as there was no unauthorised collection, use, or disclosure of his personal information. Furthermore, the tribunal held that the Original Tribunal had not correctly applied the principles of the Privacy Act when determining the severity of the breach. The Appeal Tribunal allowed the appeal, dismissed the complaint by Dr Wang, and set aside the orders made by the Original Tribunal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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