Assal v Department of Health, Housing and Community Services

NOOSR is a body established by the Commonwealth Government to deal with the question of recognition of overseas qualifications. Its Panel in Architecture assesses overseas qualifications for which there is insufficient data to enable them to be assessed against the Australian academic standard and to receive and review the reports of committees of review and to advise AACA of its findings in particular cases. The third respondent is the body established under the 1962 Act and continued under s. 6(1) of the Queensland Act of 1985, whose functions include the registration of persons entitled to practice as architects in Queensland. It was to that body that the applicants made their applications for registration. In its letter of 13 December, 1991, the third respondent explained its relationships with the second respondent and with NOOSR: "As with other Australian Registration Boards, the Queensland Board has neither the finances nor the resources to maintain records of all the academic qualifications issued by overseas institutions and reliance is therefore placed on the offices of the Architects Accreditation Council of Australia (A.A.C.A.) and the Panel in Architecture from the National Office of Overseas Skills Recognition (N.O.O.S.R.) where comprehensive records have been compiled over a number of years. The acceptance of architectural academic qualifications gained in many overseas countries is dependant upon a review, including a viva voce examination, of the candidates on their arrival in Australia. This process is necessary as there is no continuous oversight of the standards and practices of schools of architecture in those countries. For administrative convenience the local Australian State/Territory Registration Board is requested to act as an agent for the N.O.O.S.R. Panel to arrange a Committee of Review to conduct the viva voce examination with the candidate.

The committee submits its report to the N.O.O.S.R. Panel who make the final recommendation to A.A.C.A. As the A.A.C.A. is constituted of representatives of all State/Territory Registration Boards and the Royal Australian Institute of Architects, its decision is universally accepted by all nominating bodies. This system has been in place for a number of years and has enabled a uniform approach to the assessment of overseas qualifications."

The applicants had their German qualifications assessed by the second respondent in 1984. Both were advised by letter of 3 January, 1984 from the second respondent that these qualifications were considered not to be equivalent to an Australian architectural degree and, as they were resident in Queensland, they were recommended to apply to sit for the prescribed examinations set by the third respondent, with whatever exemptions that respondent might allow. They were told that a pass in such examinations would be recognised by the second respondent as equivalent to the minimum standard required for registration in Queensland. The applicants sought this exemption and the third respondent, having regard to the assessment made by the second respondent in respect of the applicants' German qualifications, exempted each applicant from examination in 13 of the 15 prescribed subjects. Mr. Ebber unsuccessfully sat the examinations in the two required subjects in 1984 and both applicants unsuccessfully sat for them in 1985. In June 1991 the applicants lodged their complaints under the RDA with the Commission. In December 1991 both sat again and passed one, (Testimonies of Study), but failed the other of the examinations in the two prescribed subjects (Architectural Design II). In its letter of 12 December, 1991 to the Race Discrimination Commissioner, the second respondent provided background information on the architecture profession, saying: "As a general rule, professional courses in architecture throughout the world are of five years duration and are conducted by universities or advanced technical colleges of similar standing. Standards are obviously affected by level of entry, scope, content and emphasis of the course of study, quality of teaching and the physical resources available to students and staff. There is also variation in the process of professional recognition. In some countries it is simply accorded to all architectural graduates. More commonly it is acquired by statutory regulation or through membership of a professional association, both of which are usually conditional upon completion of additional post-graduate training and examination. The latter applies to Australia. In Australia architects practice their profession in each State and Territory in accordance with the regulations embodied in the legislation of each jurisdiction. (The legislation is administered by separate and autonomous Architects Registration Boards set up in each jurisdiction.) Thus it is that State and Territory architectural registration requirements establish the minimum criteria for legal use of the title architect. Registration is therefore the legal point of entry to the profession. Throughout Australia the requirements for registration as an architect are: . an approved academic qualification in architecture . an approved period of training through experience . completion of an approved examination in architectural practice."

The second respondent's reply to a request by the Commissioner to provide a list of countries or overseas institutions whose architecture graduates were accorded automatic professional recognition by it, was as follows: "Certain academic qualifications obtained overseas are automatically approved by AACA as being equivalent to an Australian architectural qualification. This approval is on the basis of AACA knowledge and endorsement of the process of recognition and regular maintenance of accreditation employed by the accreditation agencies involved. These are: . the approved qualifications in architecture listed by the Commonwealth Association of Architects (CAA); . the approved qualifications in architecture listed by the National Architectural Accrediting Board (NAAB) in the USA if coupled with a pass in the National Council of Architectural Registration Boards (NCARB) registration examination. (This combination is required because of the greater emphasis given to the graduate training component in the US educational process). A list of the schools and qualifications recognised under the above process is attached (Attachment 2)."

The copy in the record of Attachment 2 referred to in the second respondent's reply is incomplete. A complete version of Attachment 2 (as at January 1992) is pages 1 to 10 of exhibit 1. The third respondent in its reply of 13 December, 1991 to a similar request from the Commissioner provided the following information about the roles of the Commonwealth Association of Architects and the U.S. National Council of Architectural Registration Boards in the second respondent's processes for evaluating overseas applications: "All Australian Registration Boards through the A.A.C.A. are contributors to the Commonwealth Association of Architects (C.A.A.). This body co-ordinates regular accreditation visits to schools of architecture in many of the countries formerly within the British Commonwealth. Accreditation by the C.A.A. is accepted on the basis that the schools accredited are visited on a regular basis and the method of assessment for accreditation is similar to that used in Australia. The Boards therefore have access to a continuous review of these schools. Other schools accepted are those in the United States of America, although persons from that country must provide evidence of completion of the National Council of American Registration Boards practical examination in addition to their academic qualification. This acceptance is based on a former reciprocal registration agreement between the two countries and while this agreement has lapsed, continued dialogue between the American and Australian authorities has enabled knowledge on the various schools to be maintained."

In response to the Commissioner's request to indicate whether architectural qualifications obtained in non-English speaking countries are recognised by the second respondent and the basis upon which those qualifications were recognised, the second respondent replied on 12 December, 1991: "The assessment of all other academic qualifications in architecture (other than those listed in Attachment 2) involves a personal interview and evaluation of the candidate's work portfolio by a Committee of Review. The document, Attachment 3, details examples of qualifications which have been accepted in individual cases. This list has been compiled . by using consultants to visit and report on architecture schools in various countries, where possible on a regular basis. . through the body of knowledge derived from precedent experience of graduates from the same or similar schools or national education systems."

A complete version of Attachment 3 (as at January 1992) is pages 11 to 17 of exhibit 1. It lists a large number of institutions in 38 countries in Europe, Africa, Asia, the Middle East and South America whose graduates have been accepted as possessing sufficient academic qualifications to meet Australian registration requirements without further local examination. The document indicates that this list of institutions is a list of examples only and is not an exhaustive one. However, it shows that graduates from eight German institutions (three "Technische Universitat", two "Universitat" and three "Technische Hochschule") have been accepted as possessing sufficient academic qualifications for Australian recognition without further examination: all held the degree of "Diplom Ingenieur". On 13 December, 1991 the third respondent told the Commissioner that since June 1983 the German qualifications of six persons who inquired about registration in Queensland had been assessed by the second respondent as equivalent to the relevant Australian qualifications, while two persons with German qualifications (presumably the applicants) were required to undertake additional studies; three of these six persons applied for and were granted registration by the third respondent. In relation to the assessment made by the second respondent of the applicants' German qualifications, the second respondent told the Commissioner: "Both Clemens and Ursula Ebber graduated from the State School of Engineering and Building, Munster, Germany, in 1966 and 1967 respectively. The academic qualification obtained by Clemens and Ursula Ebber from the State School of Engineering for Building and Technology was Ingenieur (Grad). That qualification was granted after a course of three years of full-time study. (An Australian approved qualification requires a course of minimum five years of full-time study.) The German qualification of Diplom Ingenieur from a university level institution, with a course length of at least nine semesters, is the one most frequently assessed as being equivalent to an Australian academic qualification. The Ingenieur (Grad) qualifications of both Clemens and Ursula Ebber were upgraded without further study or examination to Diplom Ingenieur, by an amendment of the law of the State of Northrhine-Westfalia. Clemens and Ursula Ebber had their qualifications assessed by AACA in 1984. Both were advised that their qualifications were not equivalent to an Australian architectural degree and, as they were resident in Queensland, were recommended to apply to sit the Prescribed Examinations set by the Board of Architects of Queensland with whatever exemptions that Board might allow. A pass in this Examination would be recognised by AACA as being equivalent to the minimum academic standard required for registration purposes. Clemens and Ursula Ebber have sat the Queensland Board's Prescribed Examination. Clemens Ebber sat the examination in 1984 and 1985, whilst Ursula Ebber sat in 1985. Both were unsuccessful. It is understood that Clemens and Ursula Ebber are candidates for the current session of the examination."

On 13 December, 1991 the third respondent advised the applicants of their failure to pass the subject "Architectural Design II". On 24 December, 1991 a conciliator with the Human Rights Commission sought further information in relation to the process followed by the second respondent in 1984 in concluding that the applicants' German qualifications were insufficient to meet local requirements without further examination. The second respondent replied on 30 January, 1992 enclosing copies of documents relevant to its assessment of the applicants' request in 1982. The material included a copy of Mr. Ebber's Application for Assessment of Architectural Qualification dated 3 November, 1982. It also included a copy of the second respondent's academic assessment as "C2", which indicated that this assessment was based on the report of Professor Roberts, a consultant to the second respondent, of his meeting in Cologne on 15 July, 1982 with a German architect, Mr. Stumpf, Vice President of the Architects Board of Northrhine Westphalia and an employee of the Federal Architects Board of Germany. According to Professor Roberts' report, the purpose of the meeting was to discuss general matters of architecture training in Germany and equivalents within the EEC and, in particular, to determine whether there was a difference in the recognition and training of a Dip. Ing. obtained from a university, compared with the same qualification obtained from a fachhochschule. Professor Roberts reported that the title "Dip. Ing." is traditional and has always included architects in Germany; he said that the courses at the fachhochschule are shorter and more practically oriented than the courses offered by the universities and that, while there is no legal distinction between graduates from the two classes of institution, those of the fachhochschule appear to be regarded as being of a lesser status than those of the university schools. He said that other countries in the EEC do not accept the fachhochschule qualification as equivalent to the academic qualification normally acceptable in each of those countries. Professor Roberts' recommendation was that, for the purposes of the initial assessment of the academic status of architects trained in the Federal Republic, university courses with a minimum duration of eight semesters should be regarded as being of an equivalent academic standard to acceptable Australian academic qualifications and courses of lesser duration, including those offered by the fachhochschule, should not; holders of the Dip. Ing. from fachhochschule should be required to undertake further studies if they wished to achieve comparable academic status to graduates of Australian schools of architecture. The second respondent's academic assessment in relation to Mr. Ebber indicates that Professor Roberts' recommendation has been accepted by it as a general rule and that the second respondent has routinely assessed university level Dip. Ing. degrees awarded by German institutions as "C1" and all fachhochschule Dip. Ing. degrees as "C2", as it did in Mr. Ebber's case. Exhibit 2, a NOOSR document, explains these classifications: "Classification C1 is a final assessment and will not be referred to [Committees of Review]. Classification C1A, C1B, C2 and C3 are provisional assessments by the NOOSR Panel in Architecture, and are subject to revision in the light of the COR reports. Classification C1 Applicant's qualifications appear to be equivalent to recognised academic qualifications. Advice from a Committee of Review will assist the NOOSR Panel in determining whether the applicant either has, or has not, got qualifications considered equivalent to recognised Australian qualifications. This provisional classification will be upgraded to C1 or downgraded to C2 or C3 based on the recommendation of the Committee of Review. ... Classification C2 Applicant's qualifications are not equivalent to recognised Australian qualifications. Applicant would achieve the level of Australian academic qualifications required for registration if he or she successfully completes a specified upgrading study programme at a recognised school. The Committee of Review must recommend the specific subjects for study to final levels. Alternatively the Committee of Review may recommend that the applicant apply to sit for a Board's prescribed examination with whatever exemptions the Board is prepared to allow."

Also forwarded by the second respondent to the Commissioner was a copy of the Committee of Review's report of 28 August, 1983 on Mr. Ebber's provisional academic assessment of "C2". Its recommendation was as follows: "This man has had 16 years experience since completing 3 year course and has shown evidence of having raised his ability in most departments to that of a graduate. Recommend apply Board's Prescribed Exams with exemptions simply to satisfy above belief."

The second respondent advised the Commissioner by its letter of 30 January, 1992 that the review it made in 1991 of its 1984 decision at the Ebbers' request involved advising them in February 1991 that, because its assessment was based on their academic qualifications only, since there was no change in their academic situations following their lack of success in the Queensland Board's examinations, the 1984 academic assessment by the second respondent of their Munster diplomas would remain unchanged. Mr. and Mrs. Ebber seek, among other things, orders under s. 25Z(1)(b)(iv) the RDA for damages in respect of the respondents' actions in 1984; it is therefore necessary to consider the position under both the 1962 Act and the 1985 Act. THE ARCHITECTS REGISTRATION ACTS The requirements for registration under the 1962 Act are set out in Division II of Part III of that Act. An applicant had to be at least 21 years old and of good fame (s. 17) and had to have the requisite practical experience in architectural work as well as certain academic qualifications (s. 18). These qualifications comprised either: (a) the passing of the prescribed examinations (s. 18(1)(a)); or (b) the holding of a prescribed degree or other certificate of competency from some Queensland educational institution approved by the third respondent (s. 18(1)(b); or (c) the holding of a prescribed degree or other certificate of competency from some institution outside Queensland approved by the Board, but provided the applicant for registration "also satisfies the Board by examination or otherwise that he possesses the requisite knowledge and skill for the practice of architecture" (s. 18(1)(c). In addition to having one of these academic qualifications, the applicant for registration also had to satisfy the Board that he had such practical experience in architectural work and the practice of architecture as may be prescribed: s. 18(1)(d). By reg. 41(1) the Architects Regulations 1963 (Qld), a degree or diploma in architecture from the University of Queensland and the diploma in architecture awarded by the Department of Education of Queensland for study through the Brisbane Central Technical College (which in 1972 became the Queensland Institute of Technology and after 1985 the Queensland University of Technology) were the only degrees and certificates of competency prescribed for the purposes of s. 18(1)(b). By reg. 41(2), as amended in 1972, degrees in architecture from six Australian universities outside Queensland, diplomas or degrees from five Australian institutes of technology outside Queensland, diplomas or certificates in architecture from five Australian technical colleges or colleges of advanced education outside Queensland and associateships or fellowships of each of the Royal Institute of British Architects or the Royal Australian Institute of Architects were prescribed degrees or certificates of competency for the purposes of s. 18(1)(c). Regulation 35 provided: "Any person who desires to be registered as an architect shall furnish to the Board an application accompanied by a certificate or certificates and a declaration each in the prescribed form or to the like effect. The practical experience referred to in paragraph (d) of section 18 of the Act shall be not less than two years to the Board's satisfaction: Provided that in the case of a graduate or diplomate of a University or Technical College at least one of these years shall be subsequent to the date the applicant qualified for his degree or diploma, as the case may be. Upon proof to the satisfaction of the Board that he is entitled to be registered as an architect, the Board shall register such person as an architect and subject to the Act and these Regulations issue to him a certificate of registration."

The qualifications for registration required by the 1985 Act are rather different from those required by the 1962 Act. In addition to the good fame requirement, s. 17 of the 1985 Act requires an applicant for registration to satisfy the Board that he has passed: (a) parts 1 and 2 of the prescribed examinations or equivalent examinations conducted by a board or other body approved by the Board (s. 17(a)(i)); or (b) a course of study in architecture the syllabus of which has been approved by the Board (s. 17(a)(ii)); and (c) that he has such practical experience in architectural work and practice as is prescribed and has passed part 3 of the prescribed examinations or equivalent examinations conducted by a board or other body approved by the Board (s. 17(b)). This section empowers the Board to "exempt from the requirements of [s. 17(b)] an Associate or a Fellow of the Royal Australian Institute of Architects who became an Associate or, as the case may be, a Fellow of the Institute prior to 1 January, 1976". At my request, counsel for the second respondent provided the following information. As to s. 17(a)(i), no board or other body has been approved by the third respondent; for the purposes of s. 17(a)(ii), the only courses of study accredited by the second respondent which are approved by the third respondent are the architecture courses offered by 12 Australian tertiary institutions. A diploma from the Queensland Department of Education, which appears to have been last granted in 1972, is not one of them.

Regulation 23(3) the Architects Regulations 1985 (Qld) provides: "The practical experience in architectural work and practice referred to in section 17(b) of the Act shall consist of a minimum of two (2) years of employment which in the opinion of the Board might reasonably be expected to equip the candidate with sufficient knowledge and expertise to pass either part 3 of the prescribed examinations or the equivalent examinations conducted by a board or other body approved by the Board. At least one full year of such employment shall be commenced and completed after the requirements of paragraph (a) of section 17 of the Act have been completed."

Under the regulations under the 1962 Act, passing all the examinations to be taken in two stages in 12 subjects prescribed by the third respondent was a sufficient academic qualification for registration in lieu of a prescribed degree or other certificate of competency granted by an institution, either in Queensland or outside Queensland, approved by the third respondent (although as a condition for admission to each of the two examination stages, a candidate had to submit to the third respondent "testimonies of study", the content of which was prescribed by reg. 39(3)): see s. 18(1)(a) and reg. 39(2). Examinations in the 15 subjects to be taken in two stages, and which include Testimonies of Study (Stage 1 and 2), set out in the 4th Schedule to the 1985 Regulations, are the examinations prescribed by reg. 22(1) for the purposes of s. 17(a) of the 1985 Act. MR. CARTER'S DECISION There is no question that Mr. and Mrs. Ebber meet the good fame requirements and whether they also met the requirements of both the 1962 and the 1985 Acts of having sufficient practical experience is not in issue before me. The case is concerned solely with the propriety of the respondents' refusal to accept the applicants' academic qualifications obtained from an institution in Germany as in themselves sufficient for the purposes of s. 18(1)(c) of the 1962 Act (and also sufficient for the purposes of s. 17 of the 1985 Act). When he dismissed the applicants' complaints, Mr. Carter said: "It is clearly the complainants' case that AACA in breach of section 9 assessed the formal or academic qualifications attained by each complainant in Germany as insufficient by itself to satisfy the Australian standard and that on that account each suffered a distinction, exclusion or restriction based on their national or ethnic origin. Similarly, in the case of BAQ, it is submission (sic) that that body in considering the registration of the complainants under the Architects Act, 1985, either failed to exercise the appropriate discretion or, if the board purported to exercise its discretion, the complainants' exclusion from registration was unlawful because it was based on their national or ethnic origin. Counsel for the complainants submitted that one's national or ethnic origin intrinsically comprehends matters concerning one's education in the country of origin and each respondent AACA and BAQ respectively, in performing their respective roles, made decisions, which for the purposes of section 9, are the relevant acts, which involved a distinction, exclusion or restriction based on their national or ethnic origin."

He continued: "The question remains whether there is any real substance in the case made for the complainants that either the AACA or the BAQ treated them differently because of their national and ethnic origin. That has to be at the core of their case. It seems to me that one needs to commence to address this question by identifying the nature of the relief granted by section 9 and/or section 9(1A) of the Racial Discrimination Act. The human rights or fundamental freedoms which the Act is designed to protect are to be found in the International Covenant which is the Schedule to the Act. In their particulars the complainants allege that the relevant determinations by AACA and BAQ had the effect and/or the purpose of nullifying and/or impairing the recognition, enjoyment and/or exercise on an equal footing, of their right to work, the right to exercise full choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right to equal pay for equal work, and/or the right to just and favourable remuneration - these being rights exercisable in one's economic life. They are the basic human rights which have relevance here. These are the rights specifically identified in article 5 of the Convention. They are the rights which the complainants allege were infringed in this case. It is alleged that the determinations made by AACA and/or BAQ were made for the purpose or had the effect of infringing their exercise of these rights. At the heart of this complaint, in my view, is the assessment or evaluation by the AACA of the alleged inadequacy or inferiority, whether real or perceived, of the qualifications obtained by the complainants in Germany. ... Therefore it seems to me that the issue which is raised by the complaint is one which focuses on the level of academic achievement and learning which any person can be assumed to possess once that person has satisfied the formal requirements of the particular school or academic institution. That, on its face, does not involve discrimination against a particular individual nor does it infringe the exercise of a person's basic rights and freedoms by reference to that person's national or ethnic origin. Rather the national and/or ethnic origin of the individual seems to be a matter of no relevance, nor does the country or place within which the particular institution is located. It might conceivably be the case that an exclusion or preference so based may well apply to a German national who has completed a defined course of study in, say, an academic institution in Australia or elsewhere, as well as to an Australian who has completed a defined course of study in Germany or some other country, if it is the particular academic institution whose degree or other qualification which is put in issue. What is in issue is not the nationality or ethnic origin of the individual or indeed the identification of the country in which the institution is located, but rather the perceived quality of the academic degree or qualification which is granted to the individual by a particular institution. The Convention and the Act is concerned with "human rights and fundamental freedoms". Article 5 insofar as it seeks to prohibit and eliminate racial discrimination, is concerned to protect the human right and fundamental freedom of "everyone" to work, to the free choice of employment, and so on. Article 5 is not concerned with the levels of academic achievement which any place of learning, wherever it may be located, may require of those whom it acknowledges as its graduates. Here the complainants were denied registration as architects, not because their national or ethnic origin was German, but because they are seen by an accreditation body and a registration body to be the holders of an inferior academic degree. That denial of registration is wholly unrelated to their national or ethnic origin. As implied above, any person, whatever that persons national or ethnic origin, would suffer the same fate if that person was the holder of the self-same academic qualification or degree. The accreditation or lack of it involves, in substance, [an assessment] of the quality of the learning available in a particular discipline at a particular academic institute. That assessment, so it seems to me, is not conditioned in any sense on matter of nationality or ethnic origin relating to the individual. It is not concerned with people but with institutions irrespective of the place where such institutions are located. The case for the complainants acknowledges that there are particular institutions in a variety of countries whose graduate qualifications will be accepted for automatic entry into a particular profession in this country. The particulars of complaint address the issue in colloquial terms: `If I come from Ghana you will accept my qualifications without further ado. If I come from Germany I have to run the gauntlet of proving myself.' Of course, that colloquialism is not intended to encapsulate all of the issues which the complaint raises. Nevertheless, the distinction which is relied upon is between those countries or places of national or ethnic origin which are recognised as providing, through their academic institutions, suitable graduates, and those others which are not. However, a moment's reflection makes it clear that that dichotomy is not really valid. The exclusion does not operate in respect of those who graduate from German schools of architecture. It does, for the present, operate in respect of the particular school from which the complainants graduated. There are other German schools or universities whose Diplom Ingenieur (sic) is regarded as the equivalent of the qualification in this country which presumably will entitle the holder of it to registration. Therefore the exclusion is not based on a matter of nationality or ethnic origin, but only by reference to the evaluation of the worth of a particular academic institution in a particular foreign country, in this case, Germany."

Mr. Carter recognised that a discrimination against an overseas applicant for registration purportedly on the basis of the quality of his academic qualification obtained overseas could still infringe the Act if it was only a cloak for discrimination of the kind proscribed by both s. 9(1) and (1A) the RDA. He said: "That is not to say that the quality and the result of the accreditation process may not in some way be flawed. If it is, that may be an unfortunate result for, and will impact unfavourably upon particular individuals, but unless it can be established that the assessment or evaluation in the course of the accreditation process was so subjective as to be founded on matters of national or ethnic origin, then neither the provisions of section 9 nor of the Convention will be breached."

THE POWER OF SUMMARY DISMISSAL AND THE NATURE OF AN INQUIRY UNDER S. 25A

The power under s. 25X the RDA that Mr. Carter invoked to bring the applicants' complaints to a summary end is only available in a very limited class of case. The Commission should not bring a complaint to an end in this way in other than a clear case, given the interests that the RDA is designed to protect. In Lalitha Nagasinghe v T.A. Worthington Q.C. and Adelaide Medical Centre for Women and Children (unreported, 6 October, 1994), von Doussa J expressed his agreement with the approval of Sir Ronald Wilson to s. 25X. He said: "The President of the Commission, Sir Ronald Wilson, sitting as an Inquiry Commissioner in Adelaide in the matter of G.V.R. v Department of Health, Housing and Community Services, decision delivered on 23 August 1993, said: The meaning of the term lacking in substance' [in s. 25X] has been considered in a number of decisions of this Commission. My view, which is one I have expressed previously in Assal v Department of Health, Housing and Community Services, is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance.' ..."

In Assal v Department of Health, Housing and Community Services [1992] E.O.C. 92-409, Sir Ronald Wilson expressly preferred this approach to applying s. 25X to another suggested test, viz., that the power of summary dismissal here in question was exercisable if it was clear that the complainant had no reasonable prospect of success, saying (at 78,900): "With respect, I wonder if this test does not raise the threshold too high. It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some cases to relate the criterion of `lack of substance' to the complainant's prospects of success at all."

The applicants complain that they were prevented from exploring various matters. They say they might have turned something up in the documents they had subpoenaed - but which were not produced before Mr. Carter made his ruling - or in cross-examination of the respondents' witnesses that would show that they were the victims of unlawful discriminatory treatment. The enquiry the Commission is authorised to conduct under s. 25A in cases like the present is an inquiry into a complaint relating to an alleged unlawful act contrary to Part II the RDA, referred to it by the Race Discrimination Commissioner under s. 24E, after that official has enquired into "the act" and endeavoured to settle by conciliation the matter to which the matter relates. The complaint together with the Commissioner's report is what is referred to the Commission for enquiry in a proceeding to which the complainant and respondent are the primary parties (s. 25F). Each such party has the right to adduce evidence, to cross-examine witnesses and to make submissions to the Commission (s. 25E). If a party can persuade a member of the Commission to issue a summons, that party can ensure that a person he wishes to give evidence can be compelled to attend and to produce any documents relevant to the enquiry into the complaint (s. 25S). By way of determining its enquiry, the Commission can make any of the non-binding decisions with respect to the complaint referred to in s. 25Z. A decision to dismiss a complaint under s. 25X can be made at any stage of the proceedings. There is no ground for thinking that, before he can be confronted with the prospect of dismissal of his complaint under the section, a complainant is entitled to an opportunity to cross-examine on oath each and every one associated with the allegedly discriminatory decision-maker whom he may subpoena to give evidence in an attempt to turn up evidence supporting each of his otherwise unsupported theories of discrimination. He cannot defeat an application under s. 25X to dismiss his complaint by saying that he would be denied, by the summary determination of the proceedings, an opportunity to fish for a case of which he then has insufficient evidence. The enquiry conducted under s. 25A is an inquiry into a complaint by the complainant alleging that an act has been done by the respondent, with a view to its being determined by the decision of the Commissioner. The inquiry is an adversarial, not an inquisitorial, proceeding. The complainant has the onus throughout of proving each of the matters that must be established before the Commissioner can reach a conclusion that unlawful discrimination has occurred. The position here under the RDA is no different from that which applies in an inquiry into a complaint under the Sex Discrimination Act 1984 (Cth), as to which see Fenwick v Beveridge Building Products Pty. Ltd. (1985) 62 A.L.R. 275 at 281; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 88 A.L.R. 621 at 628 and cf. Department of Health v Arumugam [1988] V.R. 319 at 330-331. Although he never got to the stage of evaluating the evidence, Mr. Carter was I think correct, contrary to what was said by the applicants, in appreciating that a finding of unlawful conduct could only be made against the respondents if it was proved to the standard referred to in Briginshaw v Briginshaw (1938) 60 C.L.R. 336: see Arumugam at 330-331 and cf. Ealing Borough Council [1972] A.C. 342 at 355. A complainant must therefore have at the outset of the enquiry into his complaint sufficient material (it need not be legally admissible evidence, in view of s. 25V) to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry. In saying this, I do not wish to offer any encouragement to parties to interrupt an inquiry under s. 25A by making, as a standard step in the proceedings, an application under s. 25X. The test a complainant has to pass under s. 25X does not involve a high hurdle and the summary power of dismissal is only exercisable, in any event, in clear cases. There is nothing in the RDA that lends any support to the notion that s. 25X authorises, as an ordinary step in the holding of an inquiry under s. 25A, something in the nature of a preliminary hearing of the kind that is held into charges of serious criminal offences. THE APPLICANTS' GROUNDS FOR SEEKING THE REVIEW The various grounds on which the applicants seek to review Mr. Carter's decision can be grouped as follows: (1) Mr. Carter denied the applicants natural justice and made a decision not authorised by the Act because a decision to dismiss the complaints under s. 25X could not properly be made without hearing evidence and determining disputed questions of fact. (grounds 1 to 3) (2) Mr. Carter's decision was erroneous in law insofar as he held that discrimination by reference to the quality of an academic qualification could not involve proscribed racial discrimination. (grounds 4 to 6) (3) Mr. Carter failed to consider whether the applicants might be able to make out a case in reliance on s. 9(1A). (4) Mr. Carter's decision was erroneous in law insofar as he held that the applicants had to establish their allegation of unlawful discrimination in accordance with the principles in Briginshaw v Briginshaw, supra. The applicants' challenge to the decision was developed in a wide ranging argument. It is clear that the applicants feel that they have been unfairly treated in their attempts to achieve registration as architects in Queensland, particularly insofar as they consider that the quality of their diplomas has not been compared with accuracy to other diplomas. The contentions of the applicants demonstrate just what a subjective exercise is involved. While it is possible to assess objectively whether an Australian or some overseas diploma involves fewer contact hours between student and lecturer than a particular German degree, it is not possible for any truly objective assessment to be made of the quality of those contact hours; while something approaching an objective assessment might be able to be made of the intellectual content of a particular course with that of another, the practical significance of one course having a more rigorous content than another will depend upon subjective factors, including the standards demanded by particular examiners in the two institutions. While many of their complaints are relevant to what they say was the unfairness and inaccuracy of the comparisons the second respondent made, they do not go beyond that to show that the unfairness was related to their being of German national origin. The RDA is not available to impose on the respondents an obligation to make a fair or an accurate comparison of their academic qualifications with others that have been accepted as meeting the requirements for registration: the RDA can only provide a remedy to the applicants if the respondents' refusal to accept their qualifications as by themselves sufficient for registration purposes was, among other things, based on considerations of their German national origin. THE STATUTORY PROVISIONS Section 9 the RDA provides: "(1)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. (1A)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. (2) A reference in this section 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 Convention."

Article 5 of the Convention referred to in s. 9(2), i.e., the International Convention on the Elimination of all Forms of Racial Discrimination, provides: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (e) Economic social and cultural rights, in particular: (i) 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; ..."

The term "racial discrimination" is defined in paragraph 1 of Article 1 of the Convention in words which are repeated in s. 9(1) the RDA. THE COURSE OF THE PROCEEDINGS BEFORE MR. CARTER It is clear that Mr. Carter did not attempt to resolve any factual issues in deciding to dismiss summarily the applicants' complaints. In argument, he at one point observed that it might be difficult to resolve the matter pursuant to s. 25X without any factual enquiry. But the course he ultimately followed was that urged on him by the second respondent, with the support of the third respondent. In submissions in answer to one of the second respondent's arguments for summary dismissal that this was not a case of racial discrimination because an Australian citizen who obtained the same qualification in Germany that the applicants had would not be entitled to registration either, counsel for the applicants said that this argument: "... is crucial to my learned friend's submission. And if you were to find against me on this point, then perhaps it would be appropriate to dismiss it to start with. If it is the case that one's education in a particular country does not have anything to do with the issue of national origin, then I suppose I have no grounds in coming here."

Counsel went on to argue that the proposition relied on by the second respondent was ill-founded. It was against the background of these submissions that Mr. Carter proceeded to dismiss the case, although counsel for the applicants did submit that most of the other matters raised by their complaints involved the resolution of disputed questions of fact. Now, and inconsistently with his submission before Mr. Carter acknowledging that there was a question of law raised by the respondents that could be decisive of the applicants' complaints, if decided adversely to them, counsel for the applicants argues that the decision to dismiss the complaints was unjustified because it could not properly be arrived at without first determining disputed issues of fact. In my opinion, in deciding to dismiss the complaints summarily, Mr. Carter, at the invitation of counsel for all parties, dealt only with the question raised by the respondents, whether there could be direct discrimination within s. 9(1) where the applicants were discriminated against not because they held German diplomas but because they held German diplomas of a particular standard. Mr. Carter decided it adversely to the applicants. Although Mr. Carter referred to s. 9(1A), there is nothing in his reasons to show that he identified the issues that have to be considered where the possible application of s. 9(1A) arises. Nor did he make any factual investigation of the kind which was necessary before he could have concluded that the applicants' case, insofar as they sought to rely on s. 9(1A) the RDA was a hopeless one. The facts which he assumed for the purpose of giving his decision that the applicants could prove, were not relevant to the factual issues that must be resolved when it is said (as it was before Mr. Carter) that the complaint raises a question of indirect discrimination to which s. 9(1A) applies. The applicants have thus made out the third challenge to Mr. Carter's decision and the first challenge also, insofar as that refers to the ground involving s. 9(1A). But even though an applicant may establish grounds for the review of a decision, this Court still has a discretion to refuse relief under s. 16 the Administrative Decisions (Judicial Review) Act: Lamb v Moss (1983) 49 A.L.R. 533 at 546-551. It may be appropriate, in a particular case, in deciding whether to exercise this discretion in favour of sending a matter back for reconsideration by the decision-maker whose decision is flawed, for the Court to examine whether, on further consideration, the decision-maker could reasonably come to a decision in favour of the applicant and, if the Court considers that such a result is not reasonably open, to reject the application for review: see Shell's Self Service Pty. Ltd. v Deputy Federal Commissioner of Taxation (1989) 89 A.T.C. 4233 at 4245. In the course of the hearing, I invited counsel for the applicants to provide me, after the overnight adjournment, with an outline of the case the applicants would have sought to make out before Mr. Carter if the hearing had proceeded, together with references to the evidence upon which the applicants would have relied. Counsel did this. Much of the oral evidence that I was told the applicants proposed to call before Mr. Carter, appears from the summaries provided by the applicants' solicitor in his affidavit to be relevant to whether the second respondent made an accurate comparison of the quality of their diplomas with acceptable German and Australian diplomas: the evidence of Mr. Stumpf, Professors Ammermann and Arlt is in this category, as is the evidence from the officer of the Department of Immigration. None of this seems to me to be relevant to whether the applicants have been singled out from those other German applicants, who have been successful in having their qualifications accepted by the respondents, for discriminatory treatment by reason of their German origins or relevant to the issues raised by a complaint of indirect discrimination. (Mr. Stumpf also proposes to deny telling Professor Roberts something that Professor Roberts, however, does not appear to suggest he was told by Mr. Stumpf.) It is difficult to see the relevance of Mr. Mosoco's experience with the respondents: the applicants, from their very detailed written statements before me, appear to be fluent in English. It is not possible to form any view, from the summaries of their evidence, on the relevance to the issues between these applicants and these respondents of the evidence to be called from Dr. Iredale or Dr. Ansari or on whether Sir William Keys' evidence will go beyond pointing to unfairness in the treatment of people in the position of the applicants to suggest that any such unfairness also involves proscribed discrimination. The applicants propose also to call their daughters: their evidence will be relevant only to the question of damages, if unlawful discrimination can be established. The nature of the factual case which the applicants say they hope to make out on the evidence available to them was fully argued before me. Having regard to this and to the reason why Mr. Carter's attention was distracted from the need to consider the applicants' factual case, I think it would be inappropriate to send the matter back to the Commissioner for the purpose of dealing with the applicants' factual case if I consider that it would not be open to the Commissioner, having regard to the evidence relied on by the applicants, to conclude that their case is sufficient to pass the hurdle of s. 25X. DIRECT DISCRIMINATION WITHIN S. 9(1) AND GROUND 2 OF THE APPLICANT'S CHALLENGE

Section 9(1), considered apart from s. 9(1A), is often referred to as proscribing direct discrimination, i.e., practices discriminatory in both form and effect because they involve the doing of acts involving a distinction etc., for example, the imposition of a barrier to entry into a field of work by some persons that is higher than the barrier to entry into the same field that applies to other persons. But an act that involves only unequal treatment of some in comparison with others does not, of course, infringe s. 9(1): the unequal barrier must, firstly, be imposed by reference to the national origin of the person detrimentally affected - it must have been "based on" the person's national origin - and, secondly, its imposition must have the purpose or effect of diminishing the extent to which a human right is enjoyed by that person in comparison with the extent to what that same right is enjoyed by other persons. In determining whether a requirement is "based on" a person's national origin, it is necessary to identify with precision what is the fact or circumstance that is the subject of the alleged discriminatory action. This is well demonstrated by the decisions in Ealing Borough Council v Race Relations Board, supra, at 342 and in Lewis v Trebilco (1984) 53 A.L.R. 581. In Ealing, a local Council, which only accepted applicants for Council housing who were British subjects, was held not to have discriminated against a Polish-born United Kingdom resident on the ground of his national origin (a status generally, but not invariably, governed by that person's nationality at birth - at 365) but on the ground of his nationality (a status capable of alteration by a person or by historical events during a person's life) at the time of his application to the Council. Viscount Dilhorne said, at 359-360: "An applicant's nationality may have been acquired at birth. It may be that his nationality is due to his national origins but the council ... concern themselves with what an applicant is and not with what his origins were."

In Lewis, it was argued that a Norfolk Island ordinance, which made a person a prohibited person, and thus liable to deportation from Norfolk Island, if he overstayed his temporary entry permit, infringed s. 9 the RDA. Persons ordinarily resident on the Island for five years prior to the commencement of the ordinance in 1967 and persons born on the Island, together with their children and spouses resident on the Island, were entitled to entry permits of indefinite duration. All others were only entitled to temporary entry permits for fixed periods. It was submitted that the distinction drawn in the ordinance between the rights of residence of the Islanders and others, reflected in the classes of entry permits to which they were entitled, turned essentially on questions of race or descent and therefore fell within the prohibition in s. 9(1) the RDA. The Full Court rejected this argument, saying, at 587, that the ordinance operated upon the fact of residence on the Island, not upon any matter of race, colour, descent or national or ethnic origin: "Questions of residence depend on the birth on Norfolk Island of the person concerned or of a close relative or long term residence and assimilation into the Norfolk Island community. The Ordinance does not select matters of race, colour, descent or national or ethnic origin as criteria for the determination of the rights of persons to enter or remain on or be deported from the Island."

Neither s. 18 of the 1962 nor s. 17 of the 1985 Acts in terms makes relevant in any respect the national origin of a person who applies to the third respondent for exemption from the local examination requirement in reliance on his foreign academic qualification. For that reason, there can be no question of s. 10 being infringed here: see Melkman v Federal Commissioner of Taxation (1988) 81 A.L.R. 361 at 365. What both Acts confine the third respondent's attention to, in performing its function of deciding whether to grant registration to a person, is the quality of the person's foreign diploma. If the third respondent either under s. 18 of the 1962 Act or s. 17 of the 1985 Act were to have regard to an applicant's national origins in deciding whether or not to approve that person's foreign diploma as sufficient to meet the academic pre-requisite to registration imposed by each section, it would be acting unlawfully in the sense of taking into account a matter irrelevant to the performance of its statutory function, quite apart from any question of infringement of s. 9 the RDA. If all the third respondent did in reaching its decision, in reliance on the second respondent's recommendation in 1984, to require the applicants to sit examinations in two local subjects, was to make an assessment of the academic standard of the applicants' German diplomas in comparison with the academic standard of diplomas from those Australian institutions which it accepted as sufficient for registration purposes, there could, in my opinion, be no basis for any finding of conduct by the third respondent that infringed s. 9(1). And if the second respondent made its recommendation concerning the applicants to the third respondent on the basis of the same considerations, the making of that recommendation could not infringe s. 9(1) either. The respondents' refusal to accept diplomas from certain (but not all) German institutions as sufficient without any local examination to satisfy the academic requirements for local registration is likely to affect persons of German national origin more extensively than persons of other national origins: many more German nationals than other nationals can be expected to hold the locally unacceptable German diplomas. But that the respondents' refusal may, for this reason, affect more German nationals than persons of other national origins does not convert the discrimination based on the perceived quality of the diploma from a particular German institution into one based on the German national origin of the particular applicant that is the only kind of action prohibited by the direct discrimination provision of the section. The simple proposition, accepted by Mr. Carter, that an Australian or any other national who sought registration in reliance upon the same German diploma would suffer exactly the same fate as a German national who held that particular diploma demonstrates that the rejection of the German diploma cannot be said to be "based on" national origin. The acceptance by the second and third respondents, as sufficient for registration here without any local examinations, of diplomas from German schools offering courses considered by the second respondent to be of a higher standard than that which the applicants undertook is also inconsistent with the proposition that the respondents' treatment of the applicants was dictated by their German national origins. The discrimination remains, in my opinion, one based on the quality of the diploma (as perceived by the respondents) and not one "based on" the national origin of any particular person who applies for local registration in reliance upon that diploma. This will, in my view, be the case unless in truth the respondents' refusal to accept diplomas from certain but not all German institutions is an act done for the purpose of denying persons of German national origin rights of recognition for the purpose of local registration that are enjoyed by other nationals including Australians. There is, however, no suggestion in the evidence before me that the respondents' actions are motivated by an anti-German bias and their according to certain German diplomas full recognition is merely a cloak for that. As I understood the case put for them in argument, the applicants did not assert that the respondents' actions were open to such criticism. A major argument advanced by the applicants that there was evidence before Mr. Carter to suggest that a case of direct discrimination might be able to be made out was to the effect that the distinction the respondents drew between persons with qualifications from schools of architecture in British Commonwealth and English speaking countries, who are automatically accepted for registration, and persons with qualifications from all other countries, who are assessed on an individual basis, showed discrimination based on grounds of national origin. This argument was founded on exhibit 1. It misconceives what that records. Contrary to the applicants' submission, exhibit 1 shows that diplomas granted by only some of the architecture schools in only some of the countries of the British Commonwealth and English speaking countries are automatically accepted: for example, no diplomas granted by architecture schools in Malta, Malaysia or Singapore are accorded automatic acceptance by the respondents, although these are all British Commonwealth countries - see Halsbury's Laws of England, 4th Ed., vol. 6 (1991 reissue), paragraph 808. Exhibit 1 also shows that degrees from only three schools of architecture in India (another Commonwealth country) are automatically accepted, although the exhibit shows that there are a number of other Indian schools of architecture whose degrees have been accorded full recognition, but only after assessment on an individual basis. There are a large number of schools of architecture in the USA whose diplomas are granted automatic acceptance; it does not appear from the evidence, however, whether they are all of the architecture schools in the US. But the diplomas of some only of the schools in other countries that can be regarded as English speaking ones have automatic full acceptance (and then only if they were granted in certain nominated years). For example, exhibit 1 shows that a degree from University College, Dublin, is still accorded automatic recognition, provided it was awarded between 1968 and 1980; but degrees awarded by that school after 1980 and degrees awarded by the College of Technology, Dublin have only been accepted as sufficient for full recognition here after individual assessment. The explanation from the respondents that is in evidence and which is not contradicted by any evidence put before me by the applicants is that the respondents automatically accept the graduates of those schools in the British Commonwealth and the Irish Republic listed in that part of exhibit 1 described as Attachment 2 because those schools are (or were in the period in respect of which automatic full recognition is granted) themselves the subject of continuous assessment by the Commonwealth Association of Architects, upon whose judgments as to academic standards the respondents, and in particular the second respondent, are prepared to rely. Similarly, the schools in the USA whose degrees, according to Attachment 2, are also accorded automatic full recognition, are schools approved by the National Architectural Accrediting Board in the US, a body which maintains a programme of continuous assessment of American schools and upon whose judgments the second respondent is also prepared to rely. There is nothing in exhibit 1 that lends any support to the proposition that automatic full recognition of the schools listed in Attachment 2 is evidence of discrimination on grounds of national origin; the exhibit in fact indicates the contrary by distinguishing, e.g., between different Indian schools and between different Irish schools. Moreover, Attachment 3 included in exhibit 1 shows that the graduates with diplomas from institutions in a wide range of countries have been accorded full recognition without any requirement to sit local examinations. And six of the eight persons interested in practising in Queensland who, since 1983, have had their German diplomas assessed by the second respondent have been given full recognition for their German qualifications. All this seems to me entirely inconsistent with the possible existence of discrimination by the respondents on grounds of national origin. Despite general statements made in submissions on behalf of the applicants about the alleged ease with which the respondents should be able to obtain information on academic standards of German, French, Japanese and other schools of architecture, the applicants have made no attempt to produce any evidence, and there is nothing in the evidence before me to suggest that there exist in Europe or elsewhere bodies similar to the CAA and the NAAB which maintain a programme of continuous assessment of the academic standards of what must be the large number of architecture schools in these other countries. In the absence of evidence that other similar bodies exist, there is no foundation for any suggestion that the alleged failure of the respondents to establish relationships similar to those which they have with the CAA and NAAB provides any ground for inferring that the favouring of the schools listed in Attachment 2 of exhibit 1 is discrimination based on national origins. In the absence of evidence of the existence of bodies comparable to CAA and NAAB, the likelihood that the content of courses will change over time within schools and that there are likely to be substantial differences between schools in course content and in the standards required of students is sufficient to immunise the approach of the second respondent to evaluating all degrees on a case by case basis, other than those the subject of CAA or NAAB assessment, from a charge of discrimination on national grounds. Even if there were evidence that the respondents were not prepared to rely on the assessments of accreditation bodies similar to CAA that operate in other countries in the same way they rely on CAA assessments, I do not think that fact, together with the other evidence relied on by the applicants, could justify an inference that the difference in attitude on the part of the respondents was evidence of discrimination based on racial grounds, in view of the non-controversial evidence showing that the respondents differentiate between schools in the same British Commonwealth country. Section 9(1) can only apply where a discriminatory act based on national origin also affects "any human right or fundamental freedom". The Act focuses on protecting from impairment by acts of racial discrimination certain fundamental rights which each individual has; it does not purport to aim at achieving equality of treatment in every respect of individuals of disparate racial and national backgrounds. The second matter that must therefore be established before s. 9(1) can be infringed here is that the refusal to accept their German diplomas or the imposition of the local examination requirement on the applicants must have the effect or the purpose of nullifying or impairing the extent to which they can exercise or enjoy a human right or fundamental freedom, in comparison with the extent to which that same human right or fundamental freedom is enjoyed by a person or persons of any national origin other than German or that that same refusal or that same requirement must have the effect or purpose of impairing the recognition of their entitlement to a human right or freedom in comparison with the recognition to that entitlement that a person or persons of any national origin other than German receive. The preamble to the RDA states that Parliament's particular intention in enacting it was to give effect to the Convention. By s. 7, the Parliament approved Australia's ratification of the Convention. Section 9(1) reproduces the definition of "racial discrimination" in Article 1 of the Convention and proscribes acts that involve such "racial discrimination". Section 9(2) defines the expression "human right or fundamental freedom in the political, economic, social, cultural or any other field of public life" to include any right of the kind referred to in Article 5 of the Convention and s. 10(2) declares that the expression "right" in s. 10(1) includes a reference to a right of exactly the same kind. In Gerhardy v Brown (1985) 159 C.L.R. 70 at 101-2, Mason J referred to the fact that while s. 10(2) the RDA (like s. 9(2) of that Act), shows that the rights protected under s. 10(1) (and s. 9(1)) include rights of the kind referred to in Article 5 of the Convention, s. 10(1) (and s. 9(1)) is not confined to the rights actually mentioned in that Article. He continued: "What then are the other rights, if any, to which s. 10(1) relates? The answer is the human rights and fundamental freedoms with which the Convention is concerned, the rights enumerated in Art. 5 being particular instances of those rights and freedoms, without necessarily constituting a comprehensive statement of them."

His Honour continued: "The expression `human rights' is commonly used to denote the claim of each and every person to the enjoyment of rights and freedoms generally acknowledged as fundamental to his or her existence as a human being and as a free individual in society ... As a concept, human rights and fundamental freedoms are fundamentally different from specific or special rights in our domestic law which are enforceable by action in the courts against other individuals or against the State, the content of which is more precisely defined and understood. The primary difficulty is that of ascertaining the precise content of the relevant right or freedom. This is not a matter with which the Convention concerns itself. The concept of human rights as it is expressed in the Convention and in the United Nations Universal Declaration of Human Rights evokes universal values, i.e., values common to all societies. This involves a paradox because the rights which are accorded to individuals in particular societies are the subject of infinite variation throughout the world ... Although there may be universal agreement that a right is a universal right, there may be no universal or even general agreement on the content of that right."

In the same case, Brennan J said, at 125-6: "Clearly enough, human rights and fundamental freedoms are not to be understood as the rights and freedoms which a person has under a particular legal system; they are rights and freedoms which every legal system ought to recognize and observe. They are inalienable rights and freedoms that a human being possesses simply in virtue of his humanity, independently of any society to which he belongs, independently of the legal regime which governs it, and independently of any right or freedom that he might acquire by entering into a special relationship with another. The term connotes the rights and freedoms which must be recognized and observed, and which a person must be able to enjoy and exercise, if he is to live as he was born - `free and equal in dignity and rights', as the Universal Declaration of Human Rights proclaims. ... The conception of human rights and fundamental freedoms in the Convention definition of racial discrimination describes that complex of rights and freedoms the enjoyment of which permits each member of a society equally with all other members of that society to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of that society."

In Mabo v The State of Queensland (No. 1) (1988) 166 C.L.R. 186 at 216-7, Brennan, Toohey and Gaudron JJ said: "The rights referred to in Art. 5 are human rights for which, as the preamble to the Convention testifies, universal respect ... and observance' are encouraged. Human rights are calculated to preserve and advance the dignity and equality inherent in all human beings'. The preamble states that the Convention was agreed to in furtherance of the purpose of the United Nations `to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion'."

Deane J there said at 229, in words equally applicable to s. 9: "The word `right' is used in s. 10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf., the preamble to the International Convention."

It follows from this and from the fact that the legislative intention in enacting the RDA was to give effect to the Convention and from the fact that the RDA is a valid exercise of Commonwealth legislative power only pursuant to the external affairs power within s. 51(xxix) the Constitution, that the rights and freedoms protected by ss. 9(1) and 10(1) the RDA do not encompass every right which a person has under the municipal law of the country that has authority over him or every other right which he may claim; rather are those sections limited to protecting those particular rights and freedoms with which the Convention is concerned and those other rights and freedoms which, like those specifically referred to in the Convention, are fundamental to the individual's existence as a human being. Essentially, the applicants' complaint is that the respondents failed to accept the diplomas they obtained from a particular institution in Germany as a sufficient academic qualification for the purposes of the provisions of the Queensland legislation limiting registration as an architect to persons who, among other things, possess academic attainments of a standard acceptable to the third respondent, as the registering authority. They say they were unfairly treated by this refusal because the respondents accept educational qualifications granted by a range of educational institutions both in Australia and numerous other countries which are of the same, or even lower, standard than their own academic qualifications. In my opinion, their claim that the third respondent, as the registering authority, and the second respondent, as its adviser, should accept their German educational qualifications as sufficient for the purposes of registration under Queensland law is not of itself a claim to a human right or fundamental freedom of the kind which are alone protected by ss. 9 and 10 the RDA. It was submitted that the actions of the respondents prevented the applicants enjoying the right to the free choice of employment and the right to equal pay for equal work referred to in Article 5 of the Convention, rights protected by both ss. 9 and 10 the RDA. But the right to the free choice of employment referred to in Article 5 is not a right enforceable under ss. 9 and 10 the RDA to engage in a particular field of employment that is possessed by any person, irrespective of their qualifications and irrespective of the availability of work in the particular field. That a person must, under Queensland law, have certain qualifications before he can work as an architect and that he must be registered as such before he can expect a level of remuneration appropriate to a person recognised by Queensland law as qualified to practise as an architect, does not mean that any of the rights referred to in Article 5 are being denied that person, if he lacks those attributes. The Article does not purport to guarantee to a person the right to the free choice of employment or the right to equal pay for equal work, only the right to equality before the law in the enjoyment of the right to free choice of employment and the right to equal pay for equal work. The requirement of Queensland law that, before a person can practise and be remunerated as an architect, he must satisfy the registration requirements of the third respondent, is a burden that falls on everyone equally. Mr. Carter was correct in my opinion in ruling that the applicants could not make out a case of direct discrimination, i.e., a case that they were discriminated against by the respondents' actions by reason of their German national origin and that discrimination based on the quality of a person's educational qualifications could not amount to discrimination based on the person's national origin.

Canadian authority supports this conclusion. Section 15(1) the Canadian Charter of Rights and Freedoms (which must be read subject to s. 1) declares that every individual is equal before the law and has the right to the equal protection and equal benefit of the law without discrimination based on, inter alia, race or national or ethnic origin. This is similar to the rights of non-discriminatory equality before the law declared by Article 5 of the Convention i.e., rights the enjoyment of which is protected by ss. 9 and 10 of the RDA. Attempts have been made to characterise as contraventions of s. 15 of the Charter refusals by professional registration bodies in the various Provinces to treat qualifications obtained outside Canada as sufficient to entitle the holders to local registration or to the same benefits accorded to holders of local or locally accredited qualifications: these attempts have generally failed. Re Jamorski and Attorney-General of Ontario (1988) 49 D.L.R. (4th) 426 involved a challenge to the Ontario regulations governing admission to general medical practice by graduates of Polish medical schools. The regulations drew a distinction between graduates of "accredited medical schools" and graduates of "unaccredited acceptable medical schools". The former comprised those medical schools in Canada and the USA whose courses and standards were constantly monitored by the Committee on the Accreditation of Medical Schools in Canada and by the Liaison Committee on Medical Education in the US. The Canadian and the US Committees accepted each other's accreditations without further local examination as being based on comparable standards and procedures. "Unaccredited acceptable medical schools" were those schools listed in the World Health Organisation Directory as having a medical programme of at least four years in length for at least the last 10 years; such schools were not, however, necessarily subject to any ongoing assessment by anyone. Polish medical schools were in this category under the Ontario Regulations, under which all graduates of accredited medical schools were guaranteed the one year internship in a public hospital which was a precondition to the grant of a licence for general practice. 600 such internships were available in the year in question. Only 24 internships, however, were available each year in Ontario to graduates of unaccredited acceptable medical schools. The Polish graduates challenged this restriction as an infringement of the non-discriminatory equality rights guaranteed by s. 15 of the Charter, alleging that the relevant regulations excluded all graduates of unaccredited medical schools without taking any account of any factor other than the medical school attended to determine an individual's competence to apply to intern; such an individual's actual knowledge, skill, competence, training, accomplishments and length or nature of experiences as a practising physician were all ignored. The Court of Appeal rejected the challenge, saying at 432-433: "It cannot be doubted that the regulations sought to be impugned in this appeal distinguishes between the graduates of accredited medical schools and the graduates of unaccredited acceptable medical schools, and that this distinction has an important effect on securing an internship. However, as has been observed in a number of cases, mere classification does not amount to discrimination. It is obvious from the facts of this case that the appellants are not treated equally or the same as the graduates of accredited medical schools, but there will be no infringement of s. 15 unless this unequal treatment is the result of discrimination. In my respectful view, it cannot be said that the appellants are the subjects of discrimination for two reasons. First, the appellants are not similarly situated to those who have graduated from accredited medical schools. ... No one has argued that the practice of medicine or medical education should [not] be regulated. The protection of the public demands that so essential a public service should be carefully regulated to ensure that only qualified persons are entitled to practice medicine. The appellants are the graduates of a system of medical education which is simply not known to, or monitored by, the Ontario authorities. It would be quite unrealistic to expect the graduates of such an unknown system to be treated in the same way as graduates of systems of medical education which have been carefully assessed and accredited. Second, there is nothing invidious or pejorative in the system of classification of the medical school graduates. It has not been argued that the system of accrediting medical schools is anything other than an ongoing, sophisticated, bona fide system of assessing medical schools. In some cases, classifications based on the enumerated grounds in s. 15(1) may give rise to the inference that the classification is of an invidious or pejorative nature. I cannot conclude, however, that different treatment based on different educational qualifications gives rise to any such inference. On the contrary, it appears clear to me that the classification is free from any pejorative or invidious quality. Finally, even if it could be said that in some manner which has escaped me that s. 15 applies to the facts of this case I would have no difficulty whatever in finding that the impugned regulations both with respect to admission to internships and to funding of those internships are redeemed by s. 1 of the Charter."

In Re Taylor and Institute of Chartered Accountants of Saskatchewan (1989) 59 D.L.R. (4th) 656, an accountant who qualified in the USA (and who had obtained registration in Ontario where his US qualification was accorded full recognition) challenged the decision of the Saskatchewan Institute to require him to sit a Saskatchewan examination before it would admit him to practice in that Province. Under s. 12(1) of the By Laws under the Chartered Accountants Act S.S. 1986 of the Province, the Institute was empowered to admit to practice three classes of person: s. 12(1)(a): those who had passed the local uniform final examination and had obtained the prescribed experience; s. 12(1)(b): those who were members of another Canadian provincial institute and whose professional qualifications and experience were satisfactory to the Institute; s. 12(1)(c): those members of similar organisations outside Canada whom the Institute considered had obtained a standard for admission to their non-Canadian professional bodies which was acceptable to the Institute, in lieu of the Saskatchewan uniform final examination.

The Saskatchewan Court of Appeal rejected his challenge to the Institute's decision, saying at 658-660: "The respondent [Institute] had decided, in September, 1985, that the American examination was not acceptable in lieu of the Uniform Final Examination to qualify applicants for membership in Saskatchewan under by-law 12(1)(c). Thus, the appellant could not qualify under that by-law. Nor would the respondent accept the American examination as meeting the requirement of satisfactory professional qualifications under by-law 12(1)(b). It is to be noted that under by-law 12(1)(a) all Saskatchewan students, in order to qualify for membership, must pass the Uniform Final Examination. For his part, the appellant refused to consider taking the Uniform Final Examination. ... The notice of appeal and the appellant's factum alleged a violation of s. 15(1) of the Charter, but this was not emphasised on the appeal. Applying the principles in Andrews v Law Society of British Columbia ... it is readily apparent that, in this case, there was no discrimination against the appellant on the basis of any of the enumerated heads in s. 15(1) nor on the basis of any other irrelevant personal characteristic analogous thereto. The appellant was refused membership not on account of any personal characteristic or place of residence, past or present. He was refused because he had not taken the Uniform Final Examination. Thus, there was no violation of s. 15(1)."

The second ground of challenge to Mr. Carter's decision fails. INDIRECT DISCRIMINATION WITHIN S. 9(1A) AND GROUNDS (1) AND (3) OF THE APPLICANTS' CHALLENGE

Section 9(1A) deals with indirect discrimination, i.e., with acts fair in form but discriminatory in impact. Section 9(1A)(c) raises problems of construction. Is it satisfied: (a) only if it is established that all persons of the same national group as the complainant are disadvantaged by the requirement, in comparison with the members of at least one other national group? or (b) is it enough that only a substantially higher proportion of the members of the complainant's national group are disadvantaged by the requirement in comparison with the proportion of the members of one other national group who are disadvantaged by it? or (c) is it enough that a small number of persons of the complainant's national group are disadvantaged by the requirement if no members of any other national group are similarly disadvantaged by it? Meaning (a) is unlikely to have been intended by the Parliament: the expression "by persons of the same race" etc., is not apt to describe all the members of that race and the section, so interpreted, would not catch a discriminatory requirement that disadvantaged most members of a national group so long as there was a token member of that group not so disadvantaged. Nor can meaning (c) have been intended: if the imposition of the requirement only detrimentally affects, in the manner referred to in the sub-section, a few persons of the complainant's national group while it leaves all other members of that group on an equal footing with the members of other national groups in relation to their enjoyment of the human right in question, it is I think unlikely that the requirement could truly infringe the interests that the Convention and the RDA aim at protecting. That none save a few of the members of the complainant's national group are detrimentally affected by the requirement, so far as their enjoyment equally with everyone else of the particular human right is concerned, strongly suggests that a particular requirement does not in truth operate by reference to matters of race or national origin. Meaning (b) is that which governs the determination of whether an act involves indirect discrimination on the ground of sex contrary to s. 14 the Sex Discrimination Act 1984 (Cth); but this is the necessary consequence of the definition of indirect discrimination in s. 5(2) of that Act, a provision entirely different in wording from s. 9(1A). It is difficult, applying ordinary principles of interpretation to s. 9(1A), to arrive at this meaning. However, such an interpretation would enable the provision to catch an area of racially discriminatory conduct outside the reach of the direct discrimination prohibition in the section which has long been identified as discriminatory conduct of the kind condemned by the Convention. See, e.g., "The Meaning and Reach of the International Convention on the Elimination of all Forms of Racial Discrimination", T. Meron, (1985) 79 American Journal of International Law 283 at 289 and the reference to U.S. anti-discrimination law in Department of Foreign Affairs v Styles, supra, at 628. To so read s. 9(1A)(c) is in conformity with the approach to interpreting a statute that incorporates Convention provisions which are themselves expressed in general terms which was approved by Brennan J in Gerhardy v Brown, supra, at 123-124 and with s. 15AB the Acts Interpretation Act 1901 (Cth). An act that imposes a requirement in terms that operates equally on all, but which, in a particular factual context, operates in a racially, nationally or ethnically discriminatory way because the members of one particular racial or national or ethnic group will not be able to meet the requirement that members of another group or groups can readily meet is thus the kind of discriminatory practice caught by s. 9(1A). Central to the applicants' argument that they might be able to make out a case of indirect discrimination was their submission that, if it turns out that the methodology used to assess the qualifications of persons from countries other than those Commonwealth countries and the USA which have automatic recognition, is materially different insofar as it results in more onerous standards being applied to persons from other countries, that will necessarily involve discrimination of the kind prohibited by the Act. They illustrated this proposition by submitting that if the respondents' adoption of the requirement that an applicant will be given full recognition for his German diploma only if he has undertaken a course of at least eight semesters diminishes the extent to which German nationals enjoy the right to work as architects in Queensland in comparison with the extent to which other nationals enjoy that right, then that will show a case of indirect discrimination. The evidence before me shows that the respondents give full recognition to diplomas from overseas institutions (other than those in Attachment 2) only if they involve a minimum of eight (or possibly nine) semesters of study and that it was because the applicants' diplomas were obtained after a course of six semesters of study only that they were subjected to the requirement of having to pass two local examinations. The applicants' proposition is that, if it could be shown that some of the schools listed in Attachment 2 (or in Australia) whose diplomas are given full (and automatic) recognition, grant diplomas after only six semesters, that would be sufficient to raise an inference of unlawful discrimination against the holders of diplomas from all schools other than those accorded automatic acceptance. The argument can be tested by, firstly, identifying the relevant action of the respondents as the requirement that a person from a school outside Australia and outside the list of schools in Attachment 2 in exhibit 1, i.e., outside those schools whose graduates are automatically accepted, must have a minimum eight semester course if that person is to escape the requirement of passing local examinations; secondly, by assuming that some schools in one of the favoured countries listed in Attachment 2 have only six semester courses (like the applicants' course). It is necessary to emphasise that this is an assumption only and reflects what the applicants hope to be able to prove, even though there is nothing in the evidence before me to suggest that they might be able to turn up evidence of this. If s. 9(1A)(c) is interpreted as I think it should be, a number of assumptions would have to be made and then proved to be well-founded, before the applicants could make out a case of indirect discrimination. It would have to be assumed that most holders of a six semester diploma from a German school who are seeking Australian registration will be German nationals; it would also have to be assumed that, by way of example, some of the Canadian schools listed in Attachment 2 in exhibit 1, whose diplomas are given full (and automatic) recognition by the respondents, offer only six semester courses. It would need to be further assumed that most graduates from those six semester courses will be of Canadian national origin. It would also have to be assumed that the holders of the six semester diplomas from German schools seeking registration comprised more than a small part of all the graduates of German schools seeking Australian registration. If that set of circumstances could be proved, then , all those German nationals with six semester diplomas will be impeded in gaining entry to the architecture profession in Queensland by the eight semester degree requirement, while none of those Canadian graduates with six semester diplomas would be affected at all by that requirement. If the assumption is well-founded that there are some schools of those listed in Attachment 2 (or in Australia) which offer only six semester courses, then the applicants would be able to make out one of the elements of a case of indirect discrimination in reliance on s. 9(1A). A substantially higher proportion of German nationals seeking registration here would then be disadvantaged by the eight semester requirement for full recognition in comparison with the members of another national group seeking Australian registration. The applicants have made no attempt to produce any evidence to suggest they may have such a case. I do not think they are entitled, for the reasons already given, to insist on an enquiry to investigate whether evidence may exist which would be sufficient to substantiate one basis upon which the applicants would be able to show unlawful discrimination against them. There is nothing in the evidence relied on by the applicants to suggest that it might be possible for the applicants to find material that will show that in 1984 or in 1991 there were diplomas issued by schools in some British Commonwealth or English-speaking countries that were accorded full recognition by the respondents, even though they were granted after only a six semester course. This is a good reason for declining to send the matter back to the Commissioner for a further hearing that will be likely to be both protracted, expensive in terms of both financial and resource demands on the respondents and in all likelihood, ultimately futile, so far as the applicants are concerned. Even if they could establish the element of the indirect discrimination case I have discussed, they would still have the onus of showing that the requirement of an eight semester degree was not a reasonable one with regard to the circumstances of the case, as is required by s. 9(1A)(a). That the content of a particular course may change over time and that the rigour of the course may differ from time to time and that it might be difficult for the respondents to obtain reliable information about a course leading to a degree granted in Germany some time ago might well make it reasonable for the respondents to deny full recognition to diplomas from schools with respect to which the respondents do not have an established means of constant quality evaluation of the kind provided by CAA and NAAB: that was the alternate ground on which the discrimination against the graduates of Polish medical schools in the Ontario regulations was held not to infringe s. 15 of the Canadian Charter in Re Jamorski, supra, at 433. It was also submitted that Mr. Ebber suffered unlawful indirect discrimination because the second respondent in 1984 compared the content of his 1966 diploma with the standard of a typical Australian diploma granted in 1984. It was said that an Australian national who graduated in architecture from the Central Technical College in Brisbane in 1966 was entitled to full recognition of his diploma by the third respondent even though it was a course which was alleged to be much inferior to Mr. Ebber's. It appears from s. 18 of the 1962 Act and from regs. 41(1) and 35 of the regulations under that Act that a person of good character who at any time from 1962 up to the commencement of the 1985 Act had graduated with a diploma in architecture from the Central Technical College at Brisbane and who had not less than two years practical experience "to the Board's satisfaction", only one of which years had to be subsequent to graduation, had an entitlement to registration. It was submitted that because a person with a 1966 Brisbane diploma and the same period of practical experience in architecture that Mr. Ebber had could insist in 1984 on registration, the respondents' refusal in 1984 to recognise Mr. Ebber's 1966 diploma as at least equal to a 1966 Brisbane diploma when Mr. Ebber's diploma was in fact of a much higher standard than the Brisbane one, showed that refusal of full recognition of his diploma because it fell short of the 1984 acceptable Australian standard was unlawfully discriminatory. This would follow because no holder of an allegedly low-standard 1966 Brisbane diploma would be disadvantaged by a requirement that an applicant for registration in 1984 have a diploma equal to 1984 Australian standards whereas all holders of 1966 six semester diplomas from German schools would be impeded by that requirement in gaining entry to practice as architects in Queensland in 1984. The requirement of the second respondent in 1984 that Mr. Ebber's diploma be an eight semester one was not, for the reasons given, based on his national origin, so there can be no direct discrimination involved. Mr. Ebber cannot rely on s. 9(1A) to make out a case that his 1984 experience involved indirect discrimination. Section 49 the Law and Justice Legislation Amendment Act 1990 (Cth), which amended the RDA by inserting s. 9(1A), only came into effect on 21 December, 1990: s. 2(1). "There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only": per Fullagar J, Fisher v Hebburn Ltd. (1960) 105 C.L.R. 188 at 194. There is nothing in either the amending Act or in s. 9(1A) to displace this prima facie presumption, even though s. 9(1A) is in form a deeming provision. It plainly cannot be regarded as merely declaratory because of the significantly wider reach it gives to s. 9(1). See Pearce & Geddes, Statutory Interpretation in Australia, 3rd Ed., para. 10.10. This argument is not open to Mr. Ebber to attack the 1991 decision of the second respondent: under the 1985 Act the Central Technical College diploma, that Mr. Ebber claims was greatly inferior in standard to his diploma, does not satisfy the academic requirements for registration. Both applications are dismissed. I certify that this and the preceding 64 pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond. Associate: Date: 17 March, 1995

Counsel for the applicant: Mr. S.J. Keim Solicitors for the applicant: Legal Aid Office (Queensland) Solicitors for the first respondent: Human Rights and Equal Opportunity Commission Counsel for the second respondent: Mr. R.A. Myers Solicitors for the second respondent:Thynne & Macartney Counsel for the third respondent: Ms. C.E. Holmes Solicitors for the third respondent: Crown Solicitor Dates of Hearing: 7 and 8 March, 1994