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Wang v Australian Capital Territory (Discrimination)

Wang v Australian Capital Territory (Discrimination)

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WANG v AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2016] ACAT 71

DT 7 of 2014
Catchwords: DISCRIMINATION – racial discrimination – direct and indirect discrimination – whether policy to prioritise grants of medical internships to local and interstate graduates over overseas trained doctors constitutes discrimination – whether the term ‘characteristic’ in the Discrimination Act 1991 extends to educational background

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 23, 48
Anti-Discrimination Act 1977 (NSW) s 7
Racial Discrimination Act 1975 (Cth)
Human Rights Act 2004 (ACT) ss 30, 40B
Disability Discrimination Act 1992 (Cth) ss 5, 6
Discrimination Act 1991 (ACT) s 7, 8, 10, 70
Equal Opportunity Act 2010 (Vic) ss 8, 9, 17
Health Practitioner Regulation National Law 2010 (ACT) ss 52, 53, 66, 23, 31
Human Rights Act 1993 (NZ) s 21, 22, 65
Human Rights Commission Act 2005 (ACT) s 53A, 53E
New Zealand Bill of Rights 1990 (NZ) s 19
Sex Discrimination Act 1984 (Cth) s 5

Cases cited: Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
Australian Iron & Steel v Banovic (1989) 168 CLR 165
Australian Medical Council v Wilson [1996] FCA 1618
Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13
Bropho v Western Australia [2007] FCA 519
Commissioner of Fire Brigades (NSW) v Lavery (2005) EOC 93-378
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Commonwealth v Human Rights & Equal Opportunity Commission (1993) 46 FCR 191
Commonwealth v Human Rights & Equal Opportunity Commission (1995) 63 FCR 74
Commonwealth v Human Rights and Equal Opportunity Commission [2000] FCA 1150
Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311
Correy v St Joseph’s School [2007] NSWADT 104
Edgley v Federal Capital Press (2001) 108 FCR 1
Edgley v Federal Capital Press of Australia [2001] FCA 379
Edwards v Bourke Shire Council [2005] NSWADT 9
Hall v Sheilban (1989) 20 FCR 217
IW v Perth (1998) 191 CLR 1
Jamorski v Attorney General of Ontario (1988) 49 DLR (4^th) 426
Kapooor v Monash University (2001) 4 VR 483
King-Ansell v Police [1979] 2 NZLR 531
Kovac v The Australian Croatian Club Ltd(No. 2) [2016] ACAT 4
Kovac v Australian Croatian Club Ltd [2014] ACAT 41
Kumaran v Rail Infrastructure Corporation [2005] NSWADT 30
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Minns v NSW [2002] FMCA 60
Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73
Nesci v TAFE Commission of NSW (No2) [2005] NSWADT 183
Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68
O’Connor v Victoria [2004] VCAT 1040
Philip v NSW [2011] FMCA 308
Prezzi v Discrimination Commissioner [1996] ACTAAT 132
Purvis v NSW (2003) 217 CLR 92
R v Wilson; ex parte Kisch (1934) 52 CLR 234
Secretary of the Department of Foreign…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] ACAT 71
Decision Date: 30 June 2016

CaseChat Overview and Summary

In the case of Wang v Australian Capital Territory, the applicant, an overseas trained doctor, brought a complaint of racial discrimination against the respondent, the Australian Capital Territory, under the Discrimination Act 1991. The dispute centred on the respondent's policy of prioritising medical internship grants to local and interstate graduates over overseas trained doctors. The applicant argued that this policy constituted direct and indirect racial discrimination, as it disproportionately affected overseas trained doctors and did not consider their qualifications and experience on an individual basis. The case was heard and determined by the Australian Human Rights Commission.

The central legal issues in the case were whether the respondent's policy constituted direct discrimination under sections 8(1)(a) and 10, and whether it constituted indirect discrimination under sections 8(1)(b) and 10 of the Discrimination Act 1991. Additionally, the court needed to determine if the term 'characteristic' in the Act encompassed educational background as a protected attribute. The applicant argued that the policy discriminated against him on the basis of his race and educational background, while the respondent contended that the policy was a legitimate measure to ensure the quality and safety of medical care in ACT hospitals.

The Tribunal found that the respondent's policy constituted direct discrimination against the applicant on the basis of his race, as it treated him less favourably than local and interstate graduates without considering his qualifications and experience on an individual basis. In the alternative, the Tribunal found that the policy also constituted indirect discrimination, as it had a disproportionate impact on overseas trained doctors and did not consider their qualifications and experience on an individual basis. The Tribunal also found that the term 'characteristic' in the Act encompassed educational background as a protected attribute. Consequently, the Tribunal ordered that the applicant be considered on his merits for the next internship intake, that the consideration should be free of any assumptions about the superiority of ANU graduates, and that the respondent pay the applicant $40,000 in compensation for the anxiety, embarrassment, and humiliation he suffered due to the respondent's discriminatory conduct.

Orders

Orders of the court

The Tribunal finds:

1. The respondent has engaged in an act of ‘direct’ discrimination under sections 8(1)(a) and 10 of the Discrimination Act 1991 against the applicant on the basis of his race.

2. In the alternative, the respondent has engaged in an act of ‘indirect’ discrimination under sections 8(1)(b) and 10 Discrimination Act 1991 against the applicant on the basis of his race.

3. In either alternative the act of discrimination is the implementation of the respondent’s Policy regulating the intake of medical internships into ACT hospitals and the relegation of overseas trained doctors to the last category thereof.

The Tribunal orders:

1. The applicant is to be considered on his merits for the next internship intake.

2. The consideration of the applicant’s merits should be free of any assumptions to the effect that all ANU graduates would be superior candidates to the applicant on their merits just by reason of the fact that they are recent ANU graduates. There should be no assumption that the undergraduate clinical placements of ANU students is superior clinical experience, or preparation for work, than the years of clinical practice of the applicant including the years he has spent in Australia in aged care, and the additional course he has undertaken since coming to Australia.

3. The respondent is to pay the applicant the sum of $40,000 in compensation for the anxiety, embarrassment and humiliation he has suffered by reason of the respondent’s discriminatory conduct.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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