FBY v Secretary, NSW Ministry of Health

[2023] NSWCATAD 83

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FBY v Secretary, NSW Ministry of Health [2023] NSWCATAD 83

Hearing dates:

25 March 2022

Date of orders:

4 April 2023

Decision date:

04 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member
Dr M K Murray, General Member

Decision:

(1) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

Catchwords:

HUMAN RIGHTS – Discrimination – qualifying authority or body – authorisation - facilitation.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Health Services Act 1997 (NSW)

Private Health Facilities Act 2007 (NSW)

Private Health Facilities Regulation 2017 (NSW)

Cases Cited:

Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147

FBY v Secretary, NSW Ministry of Health [2021] NSWCATAD 319

TU v AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute [2010] NSWADT 290

Category:

Principal judgment

Parties:

FBY (Applicant)
Secretary, NSW Ministry of Health (Respondent)

Representation:

Counsel:
Lowson P (Applicant)
C Ronalds SC and I Fraser (Respondent)

Solicitors:
HIV/AIDS Legal Centre Inc. (NSW) (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00304104

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant is prohibited.

REASONS FOR DECISION

1. FBY alleges that the Secretary of the NSW Ministry of Health, (the Secretary) discriminated against him on the grounds of his Human Immunodeficiency Virus (HIV) status pursuant to s 49J of the Anti-Discrimination Act 1997 (NSW), by failing to implement a policy in private health facilities.

2. The matter was listed to deal with the preliminary issue of whether the respondent is a qualifying body for the purposes of s49J of the Anti-Discrimination Act. Having considered that issue, we have determined to dismiss the complaint.

Background

3. In December 2010, FBY graduated from university and was accepted as a trainee neurosurgeon. In March 2014, FBY was diagnosed with HIV. The relevant NSW Health policy in place at the time, Policy Directive: NSW Health HIV, Hepatitis B or Hepatitis C - Health Care Workers Infected, provided that, healthcare workers infected with HIV were not permitted to perform expose prone procedures (EPPs). Accordingly, FBY could not undertake operations, which was a requirement to continue his neurosurgery traineeship between March 2014 and March 2015.

4. In 2015, FBY commenced an application in the Australian Human Rights Commission alleging disability discrimination.

5. In or about December 2015, the Secretary introduced Interim Guidelines for Health Care Workers with HIV Infection Performing Exposure Prone Procedures Working for NSW Health (Interim Guidelines). The Interim Guidelines permitted a person infected with HIV to perform EPPs provided that certain conditions were met. The Interim Guidelines are expressed to apply to ‘health care workers who are working for NSW Health and to health care workers performing EPPs in NSW Health Facilities.”

6. In a health note from the Chief Health Officer, dated 13 June 2016, titled ‘HIV - Infected Health Care Worker Resuming Exposure Prone Procedures’’ the following is stated:

NSW Health acknowledges that there is no longer any scientific basis to prevent HIV infected HCWs in clinical care and with a suppressed viral load from performing EPPs.

7. The note records supported the introduction of the Interim Guidelines ‘until implementation of the revised national guidelines is approved by AHMAC and occurs nationally.’

8. FBY continued his neurosurgery training in public health facilities between February 2016 and February 2018.

9. In May 2018, FBY was advised by the Dr Selvey, an employee of NSW Health, that the Interim Guidelines did not apply to private health facilities. FBY was told that the Communicable Diseases Network of Australia, Australian National Guidelines for the Management of Health Care Workers Known to be Infected with Blood-Borne Viruses, was the policy that applied to private health facilities (2012 CDNA Guidelines) and that 2012 CDNA Guidelines precluded HIV positive healthcare workers from performing EPPs.

10. On 17 December 2019, FBY made a complaint to the President of the Anti-Discrimination Board. On 19 October 2020, the President of the Anti-Discrimination Board referred the complaint to the NSW Civil and Administrative Tribunal (NCAT) for hearing under s 93C of the Anti-Discrimination Act.

11. FBY alleges that the Secretary is responsible for the implementation of health care standards including the application of guidelines in health care facilities in NSW, including the Interim Guidelines.

12. FBY alleges that the Secretary discriminated against FBY, by its act or omission, when, in exercising its functions as a qualifying body, it failed to ensure that those with blood borne viruses could perform EPPs in private health facilities.

13. The Secretary previously filed an application for dismissal of the proceedings on the basis that the Secretary has no power to "implement" policies in private health facilities and, in any event, the Secretary is not a "qualifying body" for the purposes of s 49J of the Anti-Discrimination Act. That application was subsequently dismissed – see FBY v Secretary, NSW Ministry of Health [2021] NSWCATAD 319. At [39] – [43] of the reasons for that decision the Tribunal stated:

For current purposes I will assume but not decide that between 2014 and December 2018, all NSW private health facilities applied the 2012 CDNA Guidelines. However, that does not establish that the Secretary expressly or implicitly required private health facilities to comply with those guidelines. Even if established, it does not follow that the Secretary was empowered to confer an authorisation or qualification on health workers working in, or applying to work in, private health facilities.

The fact that the Regulation required private health facilities to develop and implement an infection control policy and be responsible for clinical governance and patient care, does not exclude the possibility that through the licensing or accreditation processes, the Secretary expressly or implicitly required facilities to comply with the 2012 CDNA Guidelines, in part or whole.

The Secretary makes a powerful argument that even if it is established that she required private health facilities to apply the 2012 CDNA Guidelines, it does not follow that she had power to confer an authorisation or qualification on health workers, that is needed for such workers to practice their relevant profession or to engage in their occupation at private health facilities. However, the issue cannot be as neatly disposed of as the Secretary suggests by pointing to the absence of an express power given to her to confer, renew or extend an authorisation or qualification on health workers engaged by private health facilities. The answer to that question will turn on the nature of the requirement, if any, imposed by the Secretary on private health facilities with respect to the 2012 CDNA Guidelines and the proper construction of s 49J of the Anti-Discrimination Act.

It is regrettable that the material the applicant sought to obtain under summons, which he contends is critical to an understanding of the reason NSW private health facilities en masse applied the 2012 CDNA Guidelines until December 2018, and the role played by the Secretary, was not available for the dismissal hearing. Apparently there was a dispute over the costs sought to answer that summons. I am mindful that if the proceedings continue, it is possible that dispute will not be resolved, or that any material produced will not assist the applicant.

Despite these concerns I have decided that it would be premature to exercise that power until the applicant is given a further opportunity to obtain the material he contends is critical to a proper understanding of the role played by the Secretary, in relation to her purported failure to confer an authorisation or qualification on health workers with HIV working at private health facilities. In reaching that decision I have taken into account as the authorities have consistently emphasised, that the power to dismiss a complaint under s 102 of the Anti-Discrimination Act must be exercised with extreme caution. I have decided not to exercise the discretion to dismiss the Complaint.

14. The respondent subsequently sought that the Tribunal deal with the preliminary issue of whether the respondent is a qualifying body for the purposes of s49J of the Anti-Discrimination Act, on the basis that if the Tribunal were to find that the respondent is not a qualifying body, then there could be no discrimination for the purposes of s49J of the Anti-Discrimination Act.

15. On 1 December 2021 directions were made by the Tribunal and the applicant was given leave to apply for the summons relevant to the issue as to whether the Secretary is a qualifying authority. Directions were also made for the exchange of documents relevant to that issue. The matter was listed for hearing on 2 March 2022 and no objection was raised by the applicant who was legally represented. The application for summons was issued on 8 December 2021 and the applicant filed submissions on the preliminary issue in accordance with 22 January 2021.

16. After initially raising no objections to having the matter listed for preliminary hearing of the issue, and indeed complying with directions, the applicant subsequently sought that the hearing on 2 March 2022 be vacated. On 25 February 2022, the Tribunal noted that no reason had been provided as to why the hearing should be vacated and that the application to vacate the hearing would be dealt with at the hearing on 2 March 2022. On 2 March 2022, after hearing the parties in relation to that applicant objection to the preliminary issue being determined separately, the Tribunal determined that the hearing should proceed. The applicant sought an adjournment on the basis that they were not ready to proceed with the hearing on 2 March 2022. The matter was subsequently adjourned to 25 March 2022 and further directions were made for the applicant to provide any material and submissions in reply. The parties were also given a considerable time to provide written submissions after that hearing.

17. It is noted that the applicant continues to make submissions objecting to the Tribunal dealing with the issue of whether the applicant was a qualifying body as a preliminary issue. In our view the applicant has now been given ample opportunity to issue summonses and provide documents in relation to the preliminary issue and has been on notice of the issue since the determination of the summary dismissal application. We note that pursuant to s 38(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal determines its own procedure in relation to the matter and we are of view that it is consistent with the Tribunals guiding principles, of ‘just, quick and cheap resolution’ (s36) to decide the preliminary issue first. If the respondent is not a qualifying body for the purposes of s49J of the Anti-Discrimination Act, then there is no reason to put the parties to further expense in relation to the proceedings.

The Discrimination Complaint

18. FBY alleges discrimination on the grounds of disability. FBY alleges that the Secretary contravened s 49J of the Anti-Discrimination Act

19. FBY’s application is made on the grounds that the Secretary discriminated against FBY on the grounds of his HIV status by implementing the 2012 CDNA Guidelines, rather than the Interim Guidelines, in private health facilities between May and December 2018. FBY submits that he posed no risk in performing EPP’s and there was no basis for the respondent continuing to apply the CDNA guidelines in private health care facilities.

20. Section 49B (1) of the Anti-Discrimination Act sets out what constitutes discrimination on the grounds of disability. That provision provides:

(1) A person (the perpetrator) discriminates against another person (the

aggrieved person) on the ground of disability if the perpetrator-

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

21. Section 4 of the Anti-Discrimination Act relevantly defines disability to mean:

the presence in a person's body of organisms causing or capable of causing disease or illness.

22. It is not in dispute that infection with HIV is a disability for the purposes of the Anti-Discrimination Act - see TU v AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute [2010] NSWADT 290 at [60].

Qualifying Body

23. FBY submits that the respondent has discriminated by allowing the continuation of the discriminatory practice in NSW private health facilities of excluding HIV infected health care workers from performing EPPs. They refer to NSW Health Policy Directive PD 2005 162, published on 25 January 2005 (rescinded on 21 June 2019) which was is issued by NSW Health and states on the front cover that it applies to "Private Hospitals and day procedure Centres". The Policy Directive comprises a Circular dated 22 October 1999 that includes a statement that ‘Private health care facilities are advised to adopt this policy unless they already have in place equivalent policy on this issue’ (Circular page 1) and ‘It is recommended that ...private hospitals also use the Circular as a basis for policy development.’

24. FBY submits that NSW Health had the power to implement a policy directive that would have applied in private health facilities and that would have permitted the applicant to perform EPPs subject to his HIV viral loads being appropriately managed.

25. FBY submits that NSW Health was on notice from 2014 that the prohibition of HIV positive health care workers from performing EPPs was outdated, and discriminatory. FBY submits that notwithstanding that knowledge, in November 2016 NSW Health published Policy Directive PD2016 49 - NSW Health Policy Directives and Other Policy Documents which makes clear that all NSW Health organisations are required to comply with all policy directives. While FBY concedes this did not expressly apply in terms to private health facilities, he submits it had the effect of confirming the continued application of Policy Directive PD 2005_162, even though this policy directive was contrary to the Interim Guidelines issued in March 2016.

26. FBY further submits that despite the summons issued by the applicant, the respondent has not produced a single document to explain:

• Why the Interim Guidelines did not apply to private health facilities

• Why nothing was done to rescind Policy Directive 2005_162 in 2016, by which time the respondent knew that there was no scientific basis for the exclusion of health care workers properly managed HIV infection from EPPs

• Why NSW Health failed to communicate to private health facilities that the respondent licensed, that there was no scientific basis for the exclusion of health care workers properly managed HIV infection from EPPs.

27. The Secretary submits that responsibility for patient care and clinical governance of private health facilities lies with the private health facilities themselves, subject to any licensing standard or licence conditions. The Secretary submits that there is no general power for the Secretary to issue policy directives with which private health facilities are bound to comply. That is in contrast with the position with respect to public health facilities. Pursuant to s 127(4) of the Health Services Act 1997 (NSW), the Minister may attach conditions to the payment of subsidies to local health districts, statutory health corporations and affiliated health organisations. The relevant provision does not refer to private health facilities.

Consideration

28. Section 49J (1) makes it unlawful for a body which is empowered to confer, renew or extend an authorisation or qualification that is needed for or facilitates the practice of an occupation or profession to discriminate on the grounds of disability:

(1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability-

(a) by refusing or failing to confer, renew or extend the authorisation or qualification, or

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

29. There is no definition of qualifying or authorising bodies in the Anti-Discrimination Act. Section 4(4) of the Anti-Discrimination Act states:

(4) A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body.

30. We accept that the respondent is an authority.

31. FBY submits that the meaning of the words ‘authorisation’ and ‘qualification’ should be read broadly.

32. The parties have not identified anything in the Health Services Act 1997 (NSW) which would demonstrate that the Secretary authorises or qualifies FBY.

33. The Private Health Facilities Act 2007 (NSW) and the Private Health Facilities Regulation 2017 (NSW) govern how private health facilities are licenced and regulated.

34. Pursuant to s 4 of the Private Health Facilities Act, a Private health facility is defined as:

private health facility means premises at which any person is admitted, provided with medical, surgical or other prescribed treatment and then discharged, or premises at which a person is provided with prescribed services or treatments, but it does not include-

(a) an institution conducted by or on behalf of the State, or

(b) a hospital or health service under the control of a public health organisation within the meaning of the, or

(c) a nursing home within the meaning of the Public Health Act 2010, or

(d) premises of a class prescribed by the regulations for the purposes of this definition.

35. A private health facility must be licenced in accordance with Pt 2 of the Private Health Facilities Act. Section 33 makes it an offence for a person to conduct a private health facility without a licence and s 6 requires that an application for a licence is to be made to the Secretary by the person who intends to conduct the facility. In accordance with Div. 2 of Pt 2 of the Private Health Facilities Act the Secretary may issue a licence and ss 12 and 17 (3)(c) set out that a licence may be issued subject to conditions which are specified in the licence. The Secretary also has power to cancel or suspend a licence in the circumstances set out in Div. 6 of Pt 2 of the Private Health Facilities Act.

35. Section 39 of the Private Health Facilities Act provides that a private health facility is required to appoint a medical advisory committee to advise the licensee on matters such as the accreditation of practitioners, clinical practice and patient care and safety at the facility.

36. Section 39(7) of the Private Health Facilities Act provides:

Despite any other provision of this section, the licensee of a private health facility is responsible for the safety of patients at the facility and for clinical governance of the facility.

38. We accept that if a private health facility is incapable of complying with licensing standards, then the Secretary may refuse an application for license or if a private health facility fails to comply with licensing standards, the Secretary may suspend or cancel a license.

39. Section 7 of the of the Private Health Facilities Act regulates the grounds on which the Secretary can approve an application for a licence for a private health facility in principle or refuse the application and relevantly provides as follows:

…

(4) The Secretary may refuse an application for a licence only if the Secretary is satisfied that—

…

(b) the proposed facility is not capable of being conducted by the applicant in accordance with the licensing standards, or

…

40. Section 13 states that a licence remains in force until cancelled under the Act and Part 2, Division 6 deals with the suspension and cancellation of licences. Section 29 allows the Secretary to suspend a licence for breach of the licensing standards and for not having a medical advisory committee. Pursuant to s 31. the Secretary can cancel a licence of a private health facility on various grounds, including:

…

(c) if the licensee breaches any condition to which the licence is subject, or

(d) if the licensee (or, where the licensee is a corporation, any director or other person concerned in the management of the corporation) is convicted of an offence under this Act or the regulations, or

…

(h) if the facility is conducted in such a manner that the cancellation of the licence is otherwise in the public interest.

41. Section 5 of the Private Health Facilities Act states the following in relation to the licensing standards:

The regulations may prescribe standards for or with respect to any matter relating to the safety, care or quality of life of patients at private health facilities, including without limitation the following matters—

(a) clinical standards, including accreditation of practitioners to provide services at the facility, delineation of clinical privileges of practitioners and quality assurance,

(b) staffing, including qualifications of staff members, number of staff and duties,

(c) equipment,

(d) design and construction of clinical areas,

(e) operational matters, including administration and support services.

42. Regulation 5 of the Private Health Facilities Regulation prescribes the following in relation to licensing standards:

(1) For the purposes of section 5 of the Act—

(a) the standards set out in Schedule 1 are prescribed for all private health facilities, and

(b) a standard specified in Schedule 2 in relation to a specified class of private health facility is prescribed for private health facilities of that class.

(2) The licensee of a private health facility must ensure that the private health facility is conducted in accordance with the provisions of Schedules 1 and 2 applicable to the private health facility.

Maximum penalty (subclause (2)): 5 penalty units.

(3) A licensee is not guilty of an offence under this clause if the licensee—

(a) was not aware of the circumstances giving rise to the alleged offence, and

(b) could not reasonably be expected to have been aware of those circumstances.

(4) A contravention of a provision of Schedule 1 or 2 by any person other than the licensee does not constitute an offence under this Regulation

43. Schedule 1 of the Private Health Facilities Regulation sets out licencing standards which apply to private health facilities generally, and sch 2 sets out standards which apply to specific classes of private health facility.

44. Clause 13 of Sch 1 provides the following in relation to infection control:

1. A private health facility must have a written infection control policy outlining the procedures to be followed to prevent or reduce the risk of a patient acquiring an infection while at the facility.

2. Without limiting subclause (1), an infection control policy must make provision for the on-going education of staff with respect to infection control.

3. A private health facility must ensure that the infection control policy is complied with.

4. All decontamination systems and processes for reusable medical devices and clinical equipment must comply with AS/NZS 4187:2003, Cleaning, disinfecting and sterilizing reusable medical and surgical instruments and equipment, and maintenance of associated environments in health care facilities or AS/NZS 4187:2014, Reprocessing of reusable medical devices in health service organizations.

   45. Clause 13 requires a private health facility to have a written infection control policy, however, it is the responsibility of each private health facility to determine the content of that policy. The regulations do not prescribe the content of a private health facility's infection control policy. Clause 13 only requires that a private health facility have a written infection control policy, that infection control policy must make provision for the on-going education of staff with respect to infection control and the private health facility must ensure that the infection control policy is complied with.

   46. The applicant also submits that Policy Directive PD 2005_162 limited the authority of all health care workers in New South Wales to perform exposure prone procedures. The applicant submits that clause 3.3 of the Policy Directive applied to all health care workers in New South Wales, regardless of the type of facility in which they were working.

   47. In our view, and consistent with the Private Health Facilities Act and Regulation, the Policy Directive PD 2005_162 could only be binding only on NSW Health facilities. Even though it states on the front cover that that the directive applies to Private Hospitals, there was no specific power for the Secretary to impose policies on private health facilities and the Secretary could not be a condition on the licences of private health facilities to that effect.

   48. Further, the fact that the definition of "health care worker" in the 2005 Policy Directive is not confined to NSW Health staff does not mean that health care workers working at private health facilities are covered by the Policy Directive PD 2005_162.

   49. Dr Selvey gave evidence at the hearing. The applicant argued that Dr Selvey’s evidence established a wider application of the Policy Directive PD 2005_162. Given that the Secretary was not empowered to impose the interim guidelines on private health facilities, we do not accept that Dr Selvey’s evidence establishes a wider application of the directive. Dr Selvey's actions in not applying the interim guidelines, cannot amount to a refusal for the purpose of s 49J of the Anti-Discrimination Act.

   50. It was also submitted by FBY that the Secretary had power to facilitate FBY’s performance of exposure prone procedures in private health facilities by engaging Dr Post to undertake the supervision as set out in a letter to him from Dr Chant dated 16 January 2016. The applicant submits that the failure to extend supervision to work in private health facilities constitutes a breach of s 49J of the Anti-Discrimination Act.

   51. FBY has failed to demonstrate any power of the Secretary to require a private health facility to have polices which would have allowed FBY to work in the private health facility.

   52. We are not satisfied that the Secretary was an authority which is "empowered to confer, renew or extend" a relevant "authorisation or a qualification" on FBY in private health facilities. The licensing regime did not allow for the interim guidelines to be applied by the Secretary in private health facilities. Similarly, even assuming the respondent did nothing to rescind Policy Directive 2005_162 in 2016, that does not make it a qualifying body for the purposes of s 49J of the Anti-Discrimination Act. Finally, there was no obligation on NSW Health to communicate to private health facilities, on the basis that they licensed them, that there was no scientific basis for the exclusion of health care workers properly managed HIV infection from EPPs.

   53. Whether FBY was permitted to undertake EPP’s in a private health facility was entirely a matter for the determination of the private health facility. This is regardless of any policy of the Secretary, even if any such policy was expressed to apply to private health facilities.

   54. Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147 involved an application for summary dismissal of a discrimination complaint. Those proceedings had been bought on the basis that the applicant alleged that the NSW Education Standards Authority (the respondent) discriminated against it on the grounds of race and disability pursuant to ss 12, 49J, 19 and s49M of the Anti-Discrimination Act. The complaints related partly to decisions made by a delegate of the respondent to recommend to the Minister for Education that he make certain decisions which would result in the applicant having to close. After finding at [20]-[21] that the respondent in that case was not empowered to confer or renew the registration of a non-government school, the Tribunal went on to state at [22] – [25] of the reasons for the decision:

If that conclusion is not correct, and NESA is empowered to confer etc. registration of non-government schools, the third element that the College would have to establish is that registration is needed for or facilitates the practice of a profession or occupation. According to the College, it “needed” to be registered for the practice of teaching its students. Teaching is a “profession” and compliance with the requirements for registration facilitates the practice of that profession.

Alternatively, the College submitted that registration is “needed” to engage in an occupation. The occupation in this case was said to be “conducting the activity of providing education classes, facilities and other amenities for its students”. Finally, the College submitted that, registration “facilitates” the practice of teaching as a profession and/or engaging in the occupation of conducting the activity of providing education classes, facilities and other amenities”.

In my view, even if NESA did have power to confer, renew, extend, withdraw or vary the terms of the College’s registration, registration is not needed for, nor does it facilitate, the practice of a profession or the engaging in of an occupation. It is a licence for the College to operate. It does not confer any other authority or qualification on any person. I accept that a teacher employed by a non-government school will be unable to engage in the occupation of teaching at that particular school if the school’s registration is cancelled. But NESA has a separate power to accredit teachers under the Teacher Accreditation Act 2004: Education Standards Authority Act 2013 (NSW), s 12(2)(c). The registration of the College is entirely separate from an individual’s accreditation as a teacher. Registration has no impact on the ability of a teacher or other person to practice their profession or engage in their occupation.

As the second and third elements of s 12 and s 49J are not satisfied in this case, the complaint lacks substance to the extent that it alleges a contravention by NESA of those provisions. Having reached that conclusion, it is not necessary to assess the merits of the claim that NESA has discriminated against the College on the ground race or disability in breach of either of those provisions.

55. Similarly, in these proceedings, the Secretary can only approve, refuse or cancel an application for a licence for a private health facility to operate, and licensing standards are confined. In our view, that fact that the Secretary has the power to grant a licence to a private health facility, does not bring it within the terms of s 49J of the Anti-Discrimination Act. The Secretary did not have the authority to authorise FBY to conduct EPPs in private health facilities.

56. The power to grant a private health facility a licence is an authority for the private health facility to operate. It does not confer any authorisation or qualification on any individual practitioner. While a medical practitioner may not be able to practice his or her profession at a particular private health facility, the licence granted to the private health facility does not impact upon the ability of FBY to practice his profession or engage in his occupation.

Conclusion

57. The Secretary was not empowered to confer, renew or extend any relevant authorisation or qualification on FBY or a private health facility in the practice of FBY's profession or the engaging in of his occupation.

58. The approval, refusal and cancellation of a private health facilities license was not based on the private health facilities compliance with the interim guidelines of NSW Health and the Secretary could not have refused or cancelled a private health facilities registration for the non-compliance.

59. It cannot be said that Secretary is a complying authority for the purposes of FBY or a private health facility and the application can not proceed on the basis of s 49J of the Anti-Discrimination Act.

60. For those reasons the complaint is dismissed.

Orders

61. We make the following orders:

1. The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

05 April 2023 - Amended file name.

Decision last updated: 05 April 2023