Balinda v Australian Health Practitioner Regulation Agency
[2024] FedCFamC2G 1429
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balinda v Australian Health Practitioner Regulation Agency [2024] FedCFamC2G 1429
File number(s): MLG 2614 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 20 December 2024 Catchwords: HUMAN RIGHTS – application for leave under s 46PO of the Australian Human Rights Commissions Act 1986 (Cth) – racial discrimination – where Commission previously terminated applicant’s complaint – consideration of whether it is in the interests of the administration of justice for leave to be granted – where the applicant claims unlawful discrimination in breach of the Racial Discrimination Act 1975 (Cth) – where applicant claims that the English Language Skills Registration Standard imposed upon the paramedicine profession is discriminatory – consideration of principles relevant to a suppression or non-publication order – found open justice the paramount consideration and denied the application for anonymisation – consideration of discretion to permit cross-examination in the context of an interlocutory proceeding – where certain grounds of applicant’s claims misconceived – where language or English language proficiency is not a protected attribute under the RDA –found neither the National Law nor the ELS Standard limits the rights of a person of Ugandan national origin – found applicant’s discrimination claim not reasonably arguable – leave refused and application otherwise dismissed. Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PO(2), 46PO(3A), 46PH(1)(c)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 231(1)(c), Ch 4, Pt 7, Div 2
Federal Court of Australia Act1976 (Cth) s 37AF
Racial Discrimination Act 1975 (Cth) ss 9, 10, 11, 12, 13, 14, 15
Health Practitioner Regulation National Law Act 2009 (Qld) sch, ss 3(1), (3)(2)(a), 23, 25(c), 25(e), 35(a), 35(b), 35(c)(i), 38(1)(d), Div 1, Pt 5
Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4
International Convention on the Elimination of All Forms of Racial Discrimination art 5.
Cases cited: Australian Medical Council v Wilson (1996) 68 FCR 46
Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70
James v Workpower Inc [2018] FCA 2083
Kaplan v State of Victoria (No 8) [2023] FCA 1092
Maloney v The Queen [2013] HCA 28; 252 CLR 168
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261
Western Australia v Ward [2002] HCA 28
Wotton v Queensland (No 5) [2016] FCA 1457
Wu v Avin Operations Pty Ltd (No 3) (2006) FCA 1321
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of hearing: 26 April 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Counsel for the Respondents: Ms Latif Solicitor for the Respondents: Minter Ellison ORDERS
MLG 2614 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KALIMIRA BALINDA
Applicant
AND: AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
First Respondent
PARAMEDICINE BOARD OF AUSTRALIA
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1992 (Cth), leave to apply to the Court is refused.
2.The Application filed 30 November 2022 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
INTRODUCTION
Before the Court is an Application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for leave to make an application alleging unlawful discrimination by the respondents in breach of the Racial Discrimination Act 1975 (Cth) (RDA) (Application).
The applicant, Mr Balinda, claims that the first respondent, the Australian Health Practitioner Regulation Agency (AHPRA), and the second respondent, the Paramedicine Board of Australia (Board), unlawfully discriminated against him by requiring him to undertake an English language test to become a registered paramedic. Mr Balinda relies on sections 9, 10 and 13 of the RDA.
EXECUTIVE SUMMARY
I refuse to grant Mr Balinda leave to make an application alleging unlawful discrimination by the respondents in breach of the RDA. My reasons for that decision are set out below.
BACKGROUND
Mr Balinda is of Ugandan national origin and undertook his primary and secondary schooling in Uganda.
English is the official language of Uganda.
Mr Balinda was granted refugee status in Australia in 2004 and was naturalised as an Australian citizen in 2008.
Mr Balinda undertook further studies in Australia, including a Certificate IV in Pathology, a Certificate in Health Care and a Diploma in Paramedical Sciences in 2014.
Mr Balinda completed a 3-year Bachelor of Paramedicine at Victoria University in 2019.
Mr Balinda has completed four years continuous study in English in Australia.
Mr Balinda wishes to be registered as a paramedic with AHPRA to practice in the paramedicine profession.
The paramedicine profession is regulated by the Board under the Health Practitioner Regulation National Law (National Law), a national scheme for regulation of health practitioners (including paramedics). AHPRA regulates paramedics in partnership with the Board and establishes procedures for the development of registration standards and the administration of registration applications.
In order to register as a paramedic with AHPRA, a person must be able to demonstrate that their English language skills meet the requirements of the English Language Skills Registration Standard (ELS Standard).
Mr Balinda can only meet the ELS Standard by sitting an English language test.
On 26 August 2021, Mr Balinda contacted AHPRA to discuss the ELS Standard and raise a complaint regarding the ELS Standard. Between August and October 2021 Mr Balinda had correspondence with AHPRA, as well as the National Health Practitioner Ombudsman and the Commonwealth Minister for Health and Aged Care, with respect to his ELS Standard complaint.
Mr Balinda has at no time applied to register as a paramedic in Australia.
Complaint to the Australian Human Rights Commission
On 10 May 2022, Mr Balinda lodged a complaint with the Australian Human Rights Commission (AHRC) alleging unlawful discrimination (Complaint).
Before the AHRC, Mr Balinda asserted that the categorisation of the Complaint by the AHRC as one based on national origin was incorrect and had been repeatedly misrepresented as such, saying his complaint was “not about race and racial discrimination”, rather his complaint is about “discriminatory English language test requirements enthusiastically enforced by [the respondents]” and that it is “unreasonable for AHPRA to require [him] to sit for an English Language test when [he was] assessed by competent lecturers at [his] former university (Victoria University) in both subjective and objective assessments.” Notwithstanding that, as set out below, the AHRC went on to consider whether the Complaint had any merit under the RDA on the basis of national origin discrimination.
On 21 September 2022, a delegate of the president of the AHRC (Delegate) terminated the Complaint under s 46PH(1)(c) of the AHRC Act on the ground that the Delegate was satisfied that the continuation of an inquiry into the Complaint was not warranted (Notice of Termination).
The reasons for the decision to terminate the Complaint were set out in Attachment A to the Notice of Termination (Reasons for Decision). In summary, the Delegate terminated the Complaint as:
(1)To the extent the Complaint was concerned with discrimination based on English language proficiency (and was not a complaint about national origin and/or racial discrimination), the Complaint was misconceived – language and English language proficiency are not attributes protected by the RDA.
(2)To direct discrimination:
(a)the information before the Delegate was insufficient to support that the ELS Standard was a requirement imposed on Mr Balinda based on his national origin. The ELS Standard applies to all persons who apply for registration, irrespective of their national origin; and
(b)whilst Mr Balinda did not appear to meet the eligibility requirements under Pathways 1–3 of the ELS Standard based on the information before the Delegate, it did not appear to be based on his national origin, rather the distinction is based on where a person undertook their education. Other persons of the same national origin who met the education requirements under Pathways 1–3 would not be denied access to those pathways because of their national origin. Further, Mr Balinda would be eligible to demonstrate his English language proficiency in accordance with the ELS Standard via Pathway 4, and his eligibility under this pathway was not based on his national origin.
(3)To indirect discrimination, the Delegate stated there appeared to be no information to support that the pathways offered under the ELS Standard had the effect of “nullifying or impairing the recognition, enjoyment or exercise on an equal footing, by persons of Ugandan national origin, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. Further, the Delegate considered that the imposition of the ELS Standard and the four pathways made available under it was not an unreasonable requirement in the circumstances, noting its stated purpose to protect public health and safety with respect to the paramedicine profession.
(4)Mr Balinda had other appropriate avenues to raise his concerns, including by making submissions in the next review and consultation process with respect to the ELS Standard.
PRELIMINARY MATTERS
On 30 November 2022, Mr Balinda filed an Application in this Court seeking leave to proceed with his discrimination complaint.
The hearing took place on 26 April 2024.
The following preliminary issues were addressed at the hearing:
(1)leave for the respondents to rely on documents filed after the date ordered (Documents);
(2)Mr Balinda’s application for anonymisation (Anonymisation Application); and
(3)cross-examination of Ms Townley.
At the hearing I:
(a)provided oral reasons for the granting of leave to the respondents to rely on the Documents;
(b)reserved my decision in relation to the Anonymisation Application; and
(c)declined to grant leave to Mr Balinda to cross-examine Ms Townley and indicated I would provide subsequent written reasons.
I also granted leave for Mr Balinda to rely on a further affidavit filed without orders on 13 October 2023.
I provide my reasons in relation to the cross-examination of Ms Townley and the Anonymisation Application below.
Anonymisation Application
In his Application, Mr Balinda seeks an order be made for a pseudonym to be applied to his name in these proceedings as he is a refugee.
Mr Balinda relies on s 231(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) in support of his Anonymisation Application.
The respondents neither objected nor consented to such an order being made in these proceedings.
Chapter 4, Part 7, Division 2 of the FCFCOA Act deals with suppression and non-publication orders in Division 2 proceedings.
Section 229 of the FCFCOA Act provides that in deciding whether to make a suppression or non-publication order, the Court must take into account “that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
Section 230 of the FCFCOA Act relevantly provides as follows:
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court;
…
Section 231 of the FCFCOA Act further provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
In Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44, the Full Court of the Federal Court set out the principles in relation to the making of a suppression or non-publication order which may be summarised as follows:
·suppression or non-publication orders should only be made in exceptional circumstances;
·that is both because the operative word is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice;
·the paramount consideration is the need to do justice;
·publication can only be avoided where necessity compels departure from the open justice principle;
·the word “necessary” is a “strong word”. It is nevertheless not to be given an unduly narrow construction;
·the question whether an order is necessary will depend on the particular circumstances of the case; and
·once the court is satisfied that an order is necessary, it would be an error not to make it. There is no exercise of discretion or balancing exercise involved.
Whilst those comments were in relation to s 37AF of the Federal Court of Australia Act1976 (Cth), they are equally applicable here.
In his affidavit filed 16 February 2023 in support of his Anonymisation Application, Mr Balinda deposes fearing publication of his name, identifying details being made available on the internet, and of his whereabouts being disclosed to persons and authorities in his home country. He further fears that family members who still reside in his home country will come to harm. He says that his family members will be contacted and harassed if his whereabouts became known, as a means of securing his return.
For the following reasons, I decline to make the order sought by Mr Balinda.
Firstly, on the evidence before the Court, Mr Balinda was granted refugee status twenty years ago, in 2004. Accordingly, at least two decades have passed since Mr Balinda left Uganda. There is no evidence before the Court as to the circumstances pursuant to which Mr Balinda was granted protection in Australia in 2004 or whether those circumstances still exist in Uganda such that Mr Balinda’s status as a refugee in 2004 is still relevant or gives rise to any possible current risk. Secondly, Mr Balinda became an Australian citizen in 2008. There is, accordingly, no basis upon which Mr Balinda’s return to Uganda can be secured. Thirdly, there is no specific evidence before the Court as to Mr Balinda’s asserted family members who are said to still remain in Uganda. Fourthly, although Mr Balinda’s residence in Australia will be identifiable from any published decision, no other personal details will be identifiable.
Accordingly, I do not consider on the evidence currently before the Court that such an order is necessary to protect the safety of Mr Balinda nor any other person. As such, consistent with the primary interest in the administration of justice being to safeguard the public interest in open justice, I decline to make the order sought.
Cross-examination of Ms Townley
Ms Townley is the National Director, Policy and Accreditation at AHPRA. Ms Townley affirmed an affidavit filed on 15 September 2023.
In her affidavit, Ms Townley deposes to the requirements of the ELS Standard, the rationale behind the ELS Standard, and provides information about the process by which the ELS Standard was developed and how certain countries are assessed to be recognised countries.
The day before the hearing, Mr Balinda advised the Court and the Respondent that he wished to cross-examine Ms Townley.
The Court has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and, as Nicholson J said in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, “normally” “somewhat sparingly”.
At the hearing I declined Mr Balinda’s application for leave to cross-examine Ms Townley. My reasons for that decision are as follows.
Firstly, I do not consider that Mr Balinda’s application to cross-examine Ms Townley was bona fide. On 1 November 2023 and again on 18 April 2024, the solicitor for the respondents wrote to Mr Balinda regarding cross-examination of Ms Townley. On 10 November 2023, Mr Balinda replied to the 1 November 2023 correspondence stating that the question of cross-examination had been raised prematurely and he would reply when the Court communicated about the hearing. On 19 December 2023, the parties were notified via email that the matter had been listed for hearing on 26 April 2024. Mr Balinda did not, at that time, give notice of seeking to cross-examine Ms Townley. Mr Balinda also did not respond to the 18 April 2024 correspondence. Indeed, Mr Balinda did not indicate he wished to cross-examine Ms Townley until 24 April 2024, being less than one business day before the hearing, noting 25 April is ANZAC day, after being advised by the respondents on 23 April 2024 that Ms Townley would not attend the hearing on 26 April 2024 due to the death of her stepmother.
Secondly, I do not consider that the Court would be assisted by Ms Townley’s cross-examination. Mr Balinda did not at any time prior to the hearing indicate the subject matter upon which he wished to cross-examine Ms Townley. Following questions from the bench at the hearing, Mr Balinda said that he wished to cross-examine Ms Townley in relation to paragraph [20] and [21] of her affidavit. At paragraph [20] and [21] of her affidavit Ms Townley, in summary, attests to the rationale for the ELS Registration Standard for the practice of paramedicine and why applicants for registration are required to show English language proficiency of a higher than “general” or “conversational” proficiency. Mr Balinda submitted that he wished to cross-examine Ms Townley on which of those rationales or reasons he did not meet. Ms Townley’s evidence at paragraphs [20] and [21] is as to the general rationale for the ELS Registration Standard. It says nothing about whether Mr Balinda meets those requirements. Further, Mr Balinda has at no time applied for registration to practice paramedicine, he is therefore not an applicant for registration nor has any assessment been made that he does not meet the ELS Registration Standard. In those circumstances, I am unable to see how Ms Townley’s cross-examination would assist the Court.
Thirdly, while the importance of parties being afforded a fair hearing cannot be over-emphasised, it is also important to ensure that the time of the Court is not wasted by cross-examination of witnesses which would be of no assistance to the Court. In this context, I note that a further hearing date would have been required to enable Ms Townley’s cross-examination given her unavailability on the day of the hearing.
Fourthly, for completeness, I accept the submission of the respondents that otherwise Ms Townley’s affidavit is “straight forward enough”, referring to the comments of her Honour Kenny J in Wu v Avin Operations Pty Ltd (No 3) (2006) FCA 1321 at [21], noting the significant overlap between Mr Balinda’s material and Mr Townley’s evidence, the content of Ms Townley’s affidavit and the documents annexed to her affidavit.
In light of all of the above, Mr Balinda has not satisfied me that there is any sufficient justification from departing from the usual practice on interlocutory applications.
APPLICATION FOR LEAVE
As noted above, the Delegate terminated the inquiry into the Complaint under s 46PH(1)(c) of the AHRC Act.
Section 46PH of the AHRC Act relevantly provides that:
46PH Termination of complaint
Discretionary termination of complaint
(1) The President may terminate a complaint on any of the following grounds:
…
(c)the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
Section 46PO(1)(a) of the AHRC Act relevantly provides that if a complaint has been terminated under s 46PH, a complainant may make an application to this Court within 60 days of the notification of termination: s 46PO(2) of the AHRC Act.
However, s 46PO(3A) of the AHRC Act provides that where a complaint has been terminated under s 46PH(1)(c) (as in this case) such an application cannot be made without leave of the Court.
Applicable legal principles
The AHRC Act does not state any express criteria which are to be used in considering whether leave ought be granted.
Those principles to be applied in determining whether to grant leave pursuant to s 46PO(3A) were relevantly set out by Mortimer J (as she then was) in James v Workpower Inc [2018] FCA 2083 (James) at [37]-[39] as follows:
I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
There may be a range of other permissible considerations including:
(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications – such as prejudice to a party.
As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing…It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes…
James has been adopted with approval in various subsequent decisions.
LEGISLATIVE FRAMEWORK
Racial Discrimination Act
Part 2 of the RDA deals with the prohibition of racial discrimination.
Section 9
Section 9(1) prohibits direct racial discrimination and is set out as follows:
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.
Section 9(1A) prohibits indirect racial discrimination and is set out as follows:
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.
Reference in s 9 of the RDA 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 International Convention on the Elimination of All Forms of Racial Discrimination (Convention): s 9(2) of the RDA.
The Convention is reproduced in the schedule to the RDA. Article 5(e) of the Convention lists a series of “economic, social and cultural rights” relevantly including:
The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration…
Section 10
Section 10 of the RDA protects the right to equality before the law. It relevantly provides that if:
(a)by reason of a law or provision of a law of the Commonwealth, State or Territory;
(b)persons of a particular race, colour or national or ethnic origin;
(c)do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin;
then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of s 10 of the RDA, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin: s 10(1) of the RDA.
Section 13
Sections 11–15 of the RDA make discrimination unlawful in various specified areas of public life.
Section 13 of the RDA makes it unlawful for a person who supplies goods or services to the public (or any section of the public):
(a)to refuse or fail on demand to supply those goods or services to another person; or
(b)to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
National Law
The National Law applies in Victoria pursuant to s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) and is set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).
The objectives of the National Law include to establish a national registration and accreditation scheme for the regulation of health practitioners: s 3(1) of the National Law. An objective of the national registration and accreditation scheme is to provide for the protection of the public “by ensuring only health practitioners who are suitably trained and qualified for practice in a competent and ethical manner are registered: s (3)(2)(a) of the National Law.
Section 23 of the National Law establishes AHPRA. AHPRA’s functions include:
·to establish procedures for the development of accreditation standards, registration standards and codes and guidelines approved by the National Boards (including the Paramedicine Board of Australia), for the purpose of ensuring the national registration and accreditation scheme operates in accordance with good regulatory practice: s 25(c) of the National Law; and
·to establish and administer an efficient procedure for receiving and dealing with applications for registration as a health practitioner (including paramedics) and other matters relating to the registration of registered health practitioners: s 25(e) of the National Law.
Division 1 of Part 5 of the National Law provides for the establishment and powers of the National Boards, including the Board.
The functions of the Board include:
·to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession: s 35(a) of the National Law;
·to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession: s 35(b) of the National Law; and
·to develop or approve standards, codes and guidelines for the health profession, including the approval of accreditation standards developed and submitted to it by an accreditation authority: s 35(c)(i) of the National Law.
Section 38(1)(d) provides that the Paramedicine Board of Australia must develop registration standards that include requirements about the English language skills necessary for an applicant for registration in paramedicine “to be suitable for registration”.
Section 53(1)(a) provides that to be considered qualified for registration an applicant must:
(a)hold an approved or accepted qualification; or
(b)hold a qualification that is substantially equivalent to an approved qualification or based on similar competencies; or
(c)hold a relevant qualification and have successfully completed a competency assessment if required by the Board; or
(d)have been previously registered in Australia under the National Law.
The ELS Standard
The ELS Standard sets out four pathways for an applicant for registration to demonstrate their English language competence. These are:
(1)primary language pathway (Pathway 1);
(2)combined secondary and qualifications or training pathway (Pathway 2);
(3)extended education pathway (Pathway 3); and
(4)English language test pathway (Pathway 4).
Each pathway has requirements an applicant must meet to demonstrate their English language competence.
Pathway 1 requires that:
·the relevant health qualification was taught and assessed in English;
·the relevant health qualification or training was obtained in one of the recognised countries; and
·at least two years of an applicant’s secondary education was assessed in English in one of the recognised countries.
Pathway 2 requires that:
·the relevant health qualification was taught and assessed in English;
·the relevant health qualification or training was obtained in one of the recognised countries; and
·an applicant has completed at least six years of continuous education, including the relevant health qualification, taught and assessed solely in English in one of the recognised countries.
Pathway 3 requires that:
·the relevant health qualification was taught and assessed in English;
·English is the applicant’s primary language; and
·all of the applicant’s primary and secondary education was taught and assessed in English in one of the recognised countries.
Pathway 4 requires that the applicant demonstrate they meet the standard through an English language test if they do not meet any of the requirements under the other pathways.
The recognised countries for the purpose of the ELS Standard are Australia, Canada, New Zealand, Republic of Ireland, South Africa, the United Kingdom, and the United States of America.
MR BALINDA’S CLAIMS AND SUBMISSIONS
In his statement of claim Mr Balinda says that the “crux of my complaint is the manner in which AHPRA and the [Board] require recognised graduates like myself to sit a prescribed English language test administered by for-profit private companies, in relation to registering as a qualified Paramedic in Australia.”
Mr Balinda does not meet the ELS Standard via Pathway 1-3. Relevantly, Uganda is not a recognised country for the purposes of the ELS Standard and Mr Balinda has not continuously studied for six years in a recognised country (as set out above he has studied continuously in Australia for a period of four years). The only way Mr Balinda can meet the ELS Standard is through an English language test (Pathway 4).
In summary, Mr Balinda says the ELS Standard discriminates against him because:
(a)Uganda is not a recognised country (as set out above, recognised countries at the time of hearing were Australia, Canada, Ireland, New Zealand, United Kingdom, United States of America and South Africa) notwithstanding that English is the official language of Uganda and the language of instruction and learning in schools and institutions;
(b)notwithstanding that he has completed a Bachelor of Paramedicine at an Australian University he would have to sit and pay for an English language test administered by a private company;
(c)most of the students who graduated from the same degree would not have to sit the English language test to meet the ELS Standard;
(d)access to English language testing centres was restricted during the COVID-19 pandemic requiring him to have access to compatible technology to complete the test remotely which he cannot afford; and
(e)the cost of the English language test is prohibitive.
In relation to (a) above, Mr Balinda takes issue with the countries which are recognised countries for the purpose of the ELS Standard and the exclusion of, particularly, African Commonwealth countries such as Uganda, Zambia, Sierra-Leone and Namibia whose respective constitutions recognise English as the official language of that country. He submits that there is no evidence based analysis for the inclusion of the nominated recognised countries (and, conversely, for the exclusion of others). Mr Balinda submitted that there has been continued and repeated exclusion of Uganda, Zambia and Namibia (despite two rounds of public consultation) from the list of recognised countries without reason. He also submits that the criteria for South Africa to be a recognised country is inconsistent with the criteria for recognition of the other included countries and that due to its French speaking population Canada was not “worthy” of inclusion in the recognised country list. He submits that this is a distinction, exclusion, preference or restriction based on race for the purpose of s 9(1) of the RDA when applied in the context of the ELS Standard.
In relation to (b) above Mr Balinda submits that the “English language test requirements of AHPRA appears [sic] to be set by and maintained and supported by those who are part of a network of individuals and organisations whose interest appears to be connected to commercial entities delivering these tests.” In this context, Mr Balinda identifies that Minter Ellison were advisors to IDP Education “on a proposed transaction which included Education Australia distributing 25% of shareholding in IDP to all its 38 university shareholders…”. Further, Mr Balinda identifies that Professor Lesleyanne Hawthorn from the University of Melbourne headed AHPRA’s 2015 consultation committee and said that the University of Melbourne has commercial interests in some of the companies administering English language tests. Accordingly, he submits that Minter Ellison has a conflict of interest (Conflict of Interest Submissions).
Mr Balinda’s oral submissions in relation to the above matters focused on the issue of “restriction, distinction, exclusion or preference” as used in s 9(1) of the RDA and referred to these as the “four aspects”. In his written submissions Mr Balinda submits that the “four aspects” are enough to “attract the attention and interpretation of s 9(1), (1A)(a)(b)(c) and section 10(1)” of the RDA. In relation to s 9(1A), Mr Balinda submitted that “we all have an origin, so origin is undeniable.”
In further oral submissions Mr Balinda also sought that the Court:
(a)“enquire further” into the criteria by which South Africa is included as a recognised country;
(b)assist in Mr Balinda “seeking some specific answers” to validate the “exclusion criteria” of countries other than recognised countries; and
(c)require the respondents to provide the research upon which they rely to determine which countries are recognised countries and, most particularly, why Uganda is not a recognised country (collectively, the Further Submissions).
MS TOWNLEY’S EVIDENCE
Ms Townley is the National Director, Policy & Accreditation AHPRA. In her role Ms Townley provides advice to the Board to the ELS Standard. Ms Townley attests, among other things, that:
·the purpose of the ELS Standard is to set a standard for how an applicant for registration can demonstrate that their competency in speaking and communicating in English is sufficient to practice in the paramedicine profession;
·communication skills of reading, speaking, listening and writing in English are essential elements for the safe and effective practice of paramedicine;
·the practice of paramedicine often involves the communication of complex medical information, often in high stress situations;
·applicants for registration are required to show English language proficiency of a higher than general or conversational proficiency due to the complex nature of the medical information that must be communicated, the need for that information to be precise and accurate and the potential harm which could be caused if that information is not communicated in a precise and accurate manner;
·while the Board is expert in the requirements for the safe practice of paramedicine, it is not expert in the assessment of English language skills. Therefore to ensure registration decisions are safe, assessment is based on the objective evidence set out in the ELS Standard; and
·the reason for the ELS Standard is to respond to the requirements of the National Law and further the objective of protection of the public.
Ms Townley further attests that the ELS Standard is approved by the Ministerial Council pursuant to s 12 of the National Law and has been developed pursuant to the National Law and through extensive and ongoing consultation with experts, other regulators, stakeholders and the public. AHPRA has a procedure in relation to the consultation process of National Boards. Ms Townley attests that the ELS Standard is reviewed from time to time and was most recently reviewed in 2022 (2022 Review). That review commenced in 2019 and involved the commissioning of a literature review report from the University of Melbourne, preliminary consultation with a range of stakeholders on a draft revised registration standard, preparation of the ELS Standard for public consultation, the Kurk Review (being the independent review of overseas health practitioner regulatory settings announced by the National Cabinet on 30 September 2022), endorsement by the National Cabinet of the Kurk Review in April 2023 (including recommendations about further changes to the National Boards’ English language skills requirements) and further public consultation about two further possible changes to the ELS Standard including expanding the range of recognised countries (2023 Consultation Paper). The 2022 Review is now complete with the recommendations currently before the Ministerial Council. The changes proposed by the 2022 Review do not materially change the issue presently before the Court, insofar as there is no proposal to add Uganda to the list of recognised countries, nor is there a proposal to set aside the ELS Standard.
As to the “recognised countries”, Ms Townley attests that the current list is based on the countries that the pre-National Law state and territory medical regulators had significant experience with prior to 2010, countries that the National Boards have significant regulatory experience with and which generally operate health and education systems which are comparable to those in Australia. The 2022 Review extended to examining the criteria used to evaluate other countries for inclusion as a “recognised country”. In determining which additional countries to include on the recognised countries list, AHPRA and the National Boards consider the following factors:
(a)the qualification and education requirements of other countries;
(b)the regulatory approaches in place in other countries for the registration and regulation of health practitioners;
(c)the language in which health services are routinely delivered in that country;
(d)literature and other research pertaining to the utility of referring to substantially similar regulatory regimes to Australia’s in determining English language skills; and
(e)regulatory regimes in Australia which also use English language skill requirements.
The 2022 Review invited public submissions and considered possible changes to the recognised countries list and consideration of the removal of South Africa from that list. In April 2023, the Kurk Review prepared an interim report which made a number of recommendations, including National Boards expanding the range of countries recognised as English language jurisdictions, based on evidence. APHRA and the National Boards are undertaking further public consultation on the recommendations from the Kurk Review. Among other things the 2023 Consultation Paper has sought public consultation on including 24 additional countries in the recognised countries list, following a recent review of English language requirements in comparable international regulators.
Uganda is not a recognised country and has not been identified as potentially suitable for inclusion on the recognised countries list because there is not sufficient verifiable and objective evidence of matters such as the standard of English taught in the Ugandan education system and information about Uganda’s health system which could assure the National Boards that applicants who have studied in Uganda have sufficient English language skills to practise the profession.
CONSIDERATION
Are Mr Balinda’s claims reasonably arguable?
Direct discrimination – s 9(1) RDA
In Kaplan v State of Victoria (No 8) [2023] FCA 1092 (Kaplan) at [46] – [48] Mortimer CJ explained the operation of s 9(1) of the RDA as follows:
In Wotton v Queensland (No 5) [2016] FCA 1457 at [530] and [531] I explained my understanding of s 9, which I apply in these reasons:
It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.
The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.
(Original emphasis.)
In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply:
Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 (“to a more limited extent”) rather than the language of s 9 (“nullifying or impairing the recognition … on an equal footing”), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference.
As I explain below, even if a “comparator” is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment.
At the outset, it is relevant to note that language and specifically, English language proficiency, is not a protected attribute under the RDA and it is not a ground by which contravention of the RDA can be proven. Mr Balinda’s claim as articulated on this basis is therefore fundamentally misconceived. Further:
·in order to establish a reasonably arguable claim under s 9(1) of the RDA, it is not enough to simply establish a reasonably arguable distinction, exclusion, preference or restriction as submitted by Mr Balinda. More is needed pursuant to the plain language of the section. Distinction, exclusion, preference or restriction is but one limb of section 9(1); and
·similarly, in order to establish a reasonably arguable claim under s 9(1) of the RDA (or under ss 9(1A), 10 or 13), establishing that a person is of or has a particular national or ethnic origin is not sufficient. More is needed pursuant to the plain language of the section.
Accordingly, that Mr Balinda may have a national or ethnic origin as a Ugandan and may have established a reasonably arguable distinction, exclusion, preference or restriction, does not result in establishing a reasonably arguable claim in respect of any of the provisions of the RDA at issue, including s 9(1).
Whilst mindful of the comments by her Honour in Kaplan that s 9(1) is not to be dissected into small pieces so that its intended holistic operation and meaning is lost, for the following reasons I do not consider Mr Balinda’s claim in relation to direct discrimination to be reasonably arguable.
Firstly, on the evidence before the Court, any distinction, exclusion, preference or restriction arising from the application of the ELS Standard is not based on race or national or ethnic origin. The ELS Standard applies to all persons seeking registration to practice paramedicine, irrespective of national origin. It is not expressed by reference to an applicant’s race, colour, ethnic or national origin. To the extent that there is a distinction, exclusion, preference or restriction it is based on the level and type of English instruction received. Paramedicine is a regulated profession with the objective of protecting the public. The evidence before the Court supports a conclusion that the ELS Standard is formulated in compliance with the National Law and for the purpose of ensuring the safe and effective delivery of paramedicine services to the public. The “true basis” of the ELS Standard is the protection of the public in the delivery of paramedical services; not the exclusion of persons of certain race, ethnic or national origin.
Secondly, Mr Balinda’s inability to demonstrate his English language proficiency via any of Pathways 1 – 3 is not because of his Ugandan national origin. Rather, it is because of where Mr Balinda undertook his education. Mr Balinda’s national origin does not preclude him from accessing the ELS Pathways. Further, Mr Balinda is not denied the opportunity to be registered to practice paramedicine by reason of the ELS Standard. Pathway 4 is available to him.
Thirdly, Mr Balinda has not identified any human right or fundamental freedom which is nullified or the recognition, enjoyment or exercise of which is impaired. Article 5 is set out in paragraph [60] above. There is no fundamental right to be registered as a paramedic. Further, I accept the respondents’ submission that Mr Balinda’s complaint is not about the right to employment. The respondents are not employers; rather, they are concerned with the registration and regulation of paramedics. Accordingly, the respondents do not have a role in matters which fall within Article 5(e) of the Convention.
As to Mr Balinda’s submissions regarding the exclusion of the African Commonwealth countries of Uganda, Zambia and Namibia, this was not the claim before the AHRC. The claim before the AHRC was not one of African ethnicity. The claim was in respect of Mr Balinda’s Ugandan nationality although, as noted above, Mr Balinda’s position before the AHRC was that his claim was not one based on race or national or ethnic origin but was a complaint alleging “discrimination based on English language proficiency.”
Finally, as to the Conflict of Interest Submissions, even if it could be shown that the respondents were, or a respondent was, imposing the ELS Standard for commercial gain or there was a conflict of interest and their conduct was because of those matters, this does not give rise to a reasonably arguable claim under the RDA. Such matters are not protected attributes under the RDA.
Indirect discrimination – s 9(1A) RDA
For the following reasons I also do not consider that Mr Balinda’s claim in relation to indirect discrimination to be reasonably arguable.
Firstly, and most significantly, there is no evidence that Mr Balinda does not or cannot meet the English language proficiency requirement in accordance with the ELS Standard. Mr Balinda has at no time applied to be registered as a paramedic in Australia. Further, Mr Balinda is eligible to demonstrate his English language proficiency via Pathway 4 in order to be considered for registration as a paramedic.
Secondly, on the evidence before the Court the ELS Standard and the four pathways are reasonable. They reflect research, consultation and review. The rationale for the ELS Standard, as established by Ms Townley’s evidence, is the requirements of the National Law and the protection of the public in the delivery of paramedicine services. The necessity for the Board to objectively determine an applicant’s English language proficiency due to the complex nature of the medical information that must be communicated, the need for that information to be precise and accurate and the potential harm which could be caused if that information is not communicated in a precise and accurate manner is, in my view, clearly evident and inherently reasonable. The four pathways provide for objective proof. As to the recognised countries for the purposes of Pathway 4, Ms Townley’s evidence establishes that this is objectively determined and based on available evidence and experience. Further, the list of recognised countries is subject to periodic review and may be expanded if suitable objective evidence for that expansion and inclusion is available.
Thirdly, as set out above, Mr Balinda has not identified any human right or fundamental freedom which is nullified or the recognition, enjoyment or exercise of which is impaired. I refer to and repeat my comments in relation to this matter set out above.
Equality before the law – s 10 RDA
I also do not consider Mr Balinda’s claim in relation to s 10 of the RDA to be reasonably arguable.
Section 10 of the RDA creates a general personal right, regardless of race, to enjoy all rights enjoyed by persons of another race. Section 10 is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin. The nature of the right was explained by Mason J (as he then was) in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 (Gerhardy) and has been approved by the plurality of the High Court in Western Australia v Ward [2002] HCA 28 at [106] – [107]. Mason J at [98]-[99] of Gerhardy observed that:
…If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, ie by failing to confer it on persons of a particular race, then s 10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected.
… When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law.
In order for an applicant to invoke s 10 of the RDA, they must be able to:
(a)identify a right enjoyed by persons of another race, colour or national ethnic origin;
(b)identify a law of the Commonwealth, Territory or State; and
(c)establish that by reason of the law’s term, persons of another race, colour or national or ethnic origin do not enjoy the same right or enjoy it to a limited extent, than do the first group.
Section 10 has no application to the Complaint raised by Mr Balinda. Firstly, the National Law neither omits nor prohibits a person of Ugandan national origin from enjoying a human right or fundamental freedom enjoyed by persons of another race. All applicants for registration are subject to the National Law. Secondly, the ELS Standard is not a law but rather is a set of requirements that applicants for registration with the National Boards must meet and provides a variety of pathways for applicants to demonstrate their English language proficiency. In any event, the ELS Standard applies to all persons who apply for registration, irrespective of their national origin.
Even if the ELS Standard could be said to be a “law or a provision of a law of the Commonwealth, State or Territory” for the purposes of s 10 of the RDA, which I do not consider to be the case, for the reasons set out above, neither the National Law nor the ELS Standard limits the rights of a person of Ugandan national origin. It does not exclude persons of a particular race, colour or national or ethnic origin. It applies to all applicants for registration and the focus of the ELS Standard is entirely on where an applicant for registration accessed their education.
Provision of services – s 13 RDA
In his Reply submissions Mr Balinda articulates his claim in relation to s 13 of the RDA, relevantly, as follows (without amendment):
…However, despite my plea to AHPRA to allow me to register during the lockdown so that I could contribute to the health workforce at the peak of the pandemic I was ignored and did not receive the service I expected. I consider services to include an act of helpful activity or the supplying of activities… required or demanded. I argue that by ignoring and refusing to provide me with a practical solution during the pandemic when I was more than willing to put my health at risk to serve the community amounts to a potential breach sec.13 RDA of the Act. There could have been a benefit to me if AHPRA & PARA-BA would agree to my desperate request at that time to register as a paramedic. I refer to the case of IW v Perth [1997] HCA 30, the High court of Australia said it is appropriate to interpret “services” generously.
Whilst it is the case that the High Court has held that “services” for the purposes of s 13 are to be interpreted generously, Mr Balinda’s contentions in relation to s 13 are misconceived and not reasonably arguable.
Firstly, s 13 is concerned with the supply of goods and services by the respondents to Mr Balinda – not, as contended by Mr Balinda, about the supply of services by him to the respondents. I consider this is clear on a plain reading of the section. Secondly, even assuming it could be said that the respondents provide a service, there has been no refusal or failure by the respondents to supply services to Mr Balinda. Mr Balinda has not at any time applied for registration as a paramedic, there has been no refusal or failure to consider Mr Balinda’s application for registration nor any assessment on less favourable terms and conditions which would otherwise apply. Thirdly, on the material before the Court there is no evidence that any such conduct would be “by reason of the race, colour or national or ethnic origin” of Mr Balinda. That Mr Balinda has a national or ethnic origin, is not sufficient to establish that it is reasonably arguable that any such conduct is “by reason of” that national or ethnic origin.
The Further Submissions
As to the Further Submissions, as was endeavoured to be explained to Mr Balinda, this Court is not a Court of inquiry. Its role is not inquisitorial, nor are its powers “at large”. It is not the role of the Court to enquire into matters with which Mr Balinda disagrees, nor to consider matters of concern to Mr Balinda generally. Nor is it to require parties to provide Mr Balinda with information that he seeks. The sole role of the Court in these proceedings is to determine whether Mr Balinda ought be granted leave to make an application alleging unlawful discrimination by the respondents in breach of the RDA.
Conclusion as to reasonably arguable claims
For all of the above reasons, I do not consider that Mr Balinda’s claims in respect of any of ss 9(1), 9(1A), 10 or 13 of the RDA are reasonably arguable. This weighs heavily against the grant of leave.
James v Workpower Considerations
As to the other matters identified in James:
Circumstances of the parties
Mr Balinda seeks to be registered as a paramedic to enable him to work in his chosen profession. I accept this is of significant importance to Mr Balinda. The respondents are responsible for regulating, amongst other things, the paramedicine profession and ensuring the safety and protection of the public. This is also of significant importance.
I consider these factors to be equally weighty and this to be a neutral consideration in relation to the grant of leave.
Nature of the allegations made
The allegations relate to registration requirements imposed upon the paramedicine profession. The respondents submit that this issue has been broadly considered by the Courts and the law is tolerably clear. The respondents submit that the decision of Australian Medical Council v Wilson (1996) 68 FCR 46 (Wilson) is relevant authority and must be applied. Mr Balinda says that submission ought be rejected because Wilson involved a complainant who had obtained his medical qualification outside Australia and therefore is not analogous to his situation. Whilst I accept that Dr Siddiqui in Wilson had obtained his medical qualifications other than in Australia, and that the case is not on all fours with Mr Balinda’s circumstances, I nonetheless consider that similar issues to those now raised by Mr Balinda were considered by the Full Court of the Federal Court in Wilson and that it is relevant authority.
In Wilson, Dr Siddiqui, an overseas trained doctor, wished to be registered to practise medicine in Victoria. To be registered, Dr Siddiqui was required to pass a multiple choice examination and a clinical examination conducted by the Medical Council of Australia. A quota was in place so that only a specified number of doctors who passed the multiple choice examination were permitted to proceed to the clinical examination. The Court considered whether the examination requirement and the quota constituted direct or indirect discrimination in contravention of s 9(1) or 9(1A) of the RDA.
I adopt the submissions of the respondents that, relevant to the matter before this Court and like the ELS Registration Standard, the examination and quota requirements at issue in Wilson were not expressed by reference to whether the candidates were or were not of Australian or New Zealand origin and did not apply any criteria that would support a finding that the “true basis” for the examination and quota requirements was the fact the candidate was not of Australian or New Zealand origin. The direct discrimination complaint failed on that basis: Wilson at [77] – [78]. To show a requirement or condition is not reasonable requires more than showing the requirement or condition could have been differently expressed or is one the decision-maker would not have imposed: Wilson at [79]. The reasonableness element requires the complainant prove the requirement or condition was not rational, logical or understandable: Wilson at [62]. A claim of indirect discrimination becomes problematic where (like the present Complaint) the person is eligible to apply for registration on the same basis as others: Wilson at [83].
The principles established in Wilson have been adopted and applied in numerous subsequent decisions.
This weighs against the grant of leave.
Prior consideration
The AHRC gave the Complaint careful and thorough consideration. I consider the AHRC’s Reasons for Decision thoroughly answer the alleged merits of the Complaint and make it clear the Complaint is not reasonably arguable.
This weighs against the grant of leave.
Delay
Delay is not a presently relevant consideration and is a neutral consideration in relation to the grant of leave.
Other attempts to address the allegations
As set out above, the ELS Standard is reviewed from time to time, including as to those countries which are recognised countries for the purposes of the ELS Standard, and subject to public consultation processes.
This weighs against the grant of leave.
Factual and legal complexity
The Complaint does not, in my view, raise matters of factual complexity, nor particular legal complexity beyond that which ordinarily applies to matters of alleged discrimination. Further, I consider there is sufficient material before the Court to enable it to form an informed view as to the merits of the Application and whether Mr Balinda’s allegations of discrimination are reasonably arguable.
I consider this to be a neutral consideration in relation to the grant of leave.
Public importance or general application
I do not consider any matter of general application is raised by Mr Balinda’s allegations. However, the safety and protection of the public requires that the paramedicine profession be appropriately and carefully regulated and that only suitably qualified persons are permitted to practise. I therefore consider that Mr Balinda’s allegations do raise matters of public importance, albeit Mr Balinda’s allegations are (on a generous view) limited to persons of Ugandan national origin. This is to be balanced against the fact that matters of a similar, but not identical nature, were ventilated and determined in Wilson.
On balance, in light of the above considerations, I consider this to be a neutral consideration.
Other factors
I consider that the following matters go to utility and weigh against the grant of leave:
·the outcomes Mr Balinda seeks, that he be allowed to register to practise paramedicine without any inquiry into his English language proficiency and be awarded compensation for loss of income, are not reasonable or realistic outcomes. Firstly, the Court is not relevantly expert to satisfy itself that Mr Balinda is competent or satisfactorily proficient in English to safely and effectively provide paramedicine services. Secondly, Mr Balinda’s claim for economic loss is made in circumstances where he has never applied for registration as a paramedic;
·the list of recognised countries is periodically reviewed and public consultation undertaken as part of that review process. I therefore consider that Mr Balinda has an appropriate alternative mechanism through which he can seek the inclusion of Uganda as a recognised country for the purposes of the ELS Standard; and
·on 15 September 2023, the respondents wrote to Mr Balinda via their legal representatives offering to pay the relevant fee for Mr Balinda to sit the English language test, thereby removing any financial obstacle to Mr Balinda sitting the English language test and facilitating his ability to seek registration with the Board. Mr Balinda was required to accept the offer by 22 September 2023. He did not do so.
DISPOSITION
Taking into account all of the above matters, I refuse to grant leave to proceed.
Accordingly, the Application is dismissed.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 20 December 2024
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