JENNY MORGAN, DR B SIDDIQUI AND AUSTRALIAN MEDICAL COUNCIL

DR B SIDDIQUI v. SIR RONALD WILSON, ELIZABETH HASTINGS, JENNY

AUSTRALIAN MEDICAL COUNCIL AND COMMONWEALTH MINISTER FOR

Discrimination Legislation - Statutes - Administrative Law

Discrimination Legislation - Commonwealth - Racial Discrimination Act 1975 ("the Act") - whether discrimination on the basis of national origin - overseas trained doctor seeking registration to practise in Victoria - graduates from universities, colleges or other bodies not accredited by the Australian Medical Council required to pass multiple choice examination and clinical examination - Australian Medical Council accredited only Australian and New Zealand Universities - candidates may only take clinical examination if they first pass the multiple choice examination - quota imposed on the number of candidates eligible for the clinical examination limited to the first 200 who pass the multiple choice examination - requirement to sit and pass the multiple choice examination and the imposition of the quota not unlawful discrimination under the Act.

Statutes - consideration and construction of s9 of the Racial Discrimination Act - policy of s9 - nature of direct and indirect discrimination under s9.

Administrative Law - review of decisions of the Human Rights and Equal Opportunity Commission - whether errors of law.

Administrative Law - functions of the Human Rights and Equal Opportunity Commission ("the Commission") - whether appropriate for the Commission to express its views of matters that have taken place in the conciliation process.

Words and Phrases - "act ... based on" - "national origin" -"person requires" - "not reasonable in the circumstances" - "does not or cannot comply" - "on an equal footing".

Racial Discrimination Act 1975 s9

Medical Practitioners Act 1970 (Vic) s19

Human Rights and Equal Opportunity Act 1986 s11

International Convention on the Elimination of All Forms of Racial

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

ALRM v State of South Australia [1995] SASC 5224; (1995) EOC 92-759

Jamorski v Attorney-General of Ontario (1988) 49 DLR (4th) 426

Secretary,Department of Foreign Affairs and Trade v Styles (1989) 23 FCR

Commonwealth v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629

R v Wilson; ex parte Kirsch [1934] HCA 63; (1934) 52 CLR 234

Ealing London Borough Council v Race Relations Board [1971] UKHL 3; (1972) AC 342

Mandla v Dowell Lee [1982] UKHL 7; (1983) 2 AC 548

Dr J.A. Scutt, instructed by Martin Willoughby-Thomas, barrister and solicitor, appeared for Dr B. Siddiqui.

Mr P.D. McClellan QC, instructed by Mallesons Stephen Jaques, solicitors, appeared for the Australian Medical Council.

Mr. R.R.S. Tracey QC, with Mr. A.L. Cavanough, instructed by the Australian Government Solicitor, appeared for the Commonwealth Minister for Health.

In each of VG 751 of 1995 and VG 752 of 1995 the Court orders that:

1. The determination of the Human Rights and Equal Opportunity

Commission dated 7 August 1995 be set aside.

2. The complaint be dismissed.

3. Dr B Siddiqui pay the Australian Medical Council's costs of

its application, including any reserved costs.

1. The application be dismissed.

2. Dr B Siddiqui pay the Australian Medical Council's costs in

the application, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ I have had the advantage of reading the reasons for judgment prepared by Heerey J and by Sackville J. I agree that orders should be made in the terms proposed by Heerey J and except in relation to one aspect of the construction of s9(1A)(c) of the Racial Discrimination Act 1975 (Cth) ("the Act"), which does not affect the outcome, I agree generally with his Honour's reasons.

2. As to s9(1A)(c), I am of the view that in the application of the provision the comparison that has to be undertaken can and should extend beyond groups that are subject to the same term, condition or requirement.

3. The relevant parts of s9 are set out in the reasons for judgment of the other members of the Court and it will be seen that, amongst other things, s9(1) makes unlawful an act, involving a distinction based on national origin, that has the purpose or effect of impairing the enjoyment, "on an equal footing", of any human right. Likewise s9(1A), in dealing with the indirect discrimination, is concerned with a term, condition or requirement that has the purpose or effect of impairing the enjoyment "on an equal footing" of any human right.

4. In cases to which s9(1A) applies the act of requiring compliance with a condition etc is to be treated, for the purposes of Part II of the Act, which is the part dealing with the prohibition of racial discrimination, "as an act involving a distinction based on, or an act done by reason of, the other person's... national... origin". Thus in circumstances in which the act of requiring compliance becomes unlawful it does so by reason of the operation of s9(1A) in conjunction with s9(1), which is the primary provision of Part II. It follows that the concept of impairing the enjoyment of a right on an equal footing must be the same in both parts of the section.

5. As its short title indicates, the principal object of the Act is the elimination of racial discrimination and some other like forms of discrimination. The Act gives effect to the International Convention on the Elimination of all Forms of Racial Discrimination. In this context the concept used in s9(1) and in s9(1A) of impairing the enjoyment of a right on an equal footing must be taken to be a broad one that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination and the other like types of discrimination that the Act aims to eliminate. The language used in s9 does not point to any narrower operation, in my view, and nor does the evident policy of the Act. On the contrary, the policy of the Act points to a broad operation and this is of particular significance in legislation of this character: see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J (with whom Deane J agreed) and at 394 per Dawson and Toohey JJ.

6. In relation to the present case I, like Sackville J, incline to the view that the examination and quota requirements did not have the proscribed effect and I agree with what his Honour has written on that matter.

HEEREY J Dr Burney Siddiqui is a medical practitioner and a graduate of Osmania University Medical School in Hyderabad, India. He has for some time practised medicine on a restricted basis in Victoria and other Australian States. He wishes to obtain unrestricted registration to practice in Victoria. For that purpose he sat for a written examination set by the Australian Medical Council (AMC). However he was not placed within the first 200 candidates in order of merit and therefore did not come within a quota set by the AMC at the request of the Australian Health Ministers' Conference (AHMC).

2. Dr Siddiqui complained to the Human Rights and Equal Opportunity Commission (the Commission). He asserted that the setting of the quota and its application to him contravened s 9(1) and (1A) of the Racial Discrimination Act 1975 (Cth) (RDA). The Commission upheld his complaint as to s 9(1A) and awarded damages of $50,000.

3. The AMC and the Commonwealth Minister for Health, who had been joined as a party to the proceeding before the Commission, have applied to this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Dr Siddiqui also seeks an order for review on the ground of the alleged inadequacy of the damages award.

4. The regulation of the medical profession, including the registration of medical practitioners, is a State and Territory function. At the relevant time in Victoria Dr Siddiqui had to satisfy the requirements of the Medical Practitioners Act 1970 (Vic) (the Victorian Act). The Victorian Act was administered by the Medical Board of Victoria constituted under s 4. Section 19 relevantly provided that a person was qualified to be registered as a legally qualified medical practitioner if that person

(a) was a graduate of a university, college or other body

accredited by the AMC or

(b) held a certificate of the AMC certifying that that person

was qualified to be registered in all States and Territories of

the Commonwealth as a legally qualified medical practitioner.

5. In each case a successful candidate was required to undertake a further period of supervised internship: s 19A. The only universities or colleges accredited by the AMC were medical schools at Australian and New Zealand Universities. Thus Dr Siddiqui needed the AMC certificate and had to pass such examinations or tests as that body required.

6. Although recognised by the Victorian Act, the AMC itself is not a statutory body. It was incorporated under the Associations Incorporation Act 1991 (ACT). Its council is made up of nominees of State and Territory Medical Boards, of the Australian Vice-Chancellor's Committee on the advice of the Committee of the Deans of Australian Medical Schools, of the Committee of Presidents of Medical Colleges and of the Australian Medical Association. All the foregoing nominees must be registered medical practitioners. Two members are to be nominated by the Australian Health Ministers' Advisory Council, one on the advice of the Commonwealth and one on the advice of the State and Territory Governments. The Chairmen of the Council's Standing Committees are ex officio members.

7. Under cl 2 of its Articles the functions of the Council include advising and making recommendations to State and Territory Medical Boards in relation to the accreditation of Australian and New Zealand medical schools and the assessment for admission to practice in Australia of overseas trained medical practitioners. By cl 17 an Examination (Standing) Committee is established for the purpose, amongst other things, of devising and implementing examination procedures "which may be used to determine the suitability for practice in Australia of overseas medical practitioners". Clause 17A provides:

In relation to assessment for admission to practice in Australia

of overseas trained medical practitioners, the Council will take

into account:

(1) governmental decisions as to the residence status in

Australia of overseas trained medical practitioners in

determining eligibility to sit the examinations; and

(2) government policy and limitations on resources necessary

for the conduct of the assessment procedures in determining the

number of candidates accepted for entry to any of its

examinations or assessment procedures.

8. The examinations conducted by the AMC consist of a written multiple choice question examination (MCQ) followed by an oral clinical examination. Prior to the introduction of the quota in 1992 the AMC required that a candidate satisfy a minimum performance standard in the MCQ of 50 per cent overall and 40 per cent in each of the disciplines of medicine, paediatrics, psychiatry, surgery, and obstetrics and gynaecology before attempting the clinical examination.

9. The AHMC is a body comprising the Commonwealth, State and Territory Health Ministers. On 8 July 1992 the AHMC by a letter under the hand of its Chair, the Hon Maureen Lister, the Victorian Minister for Health, wrote to the President of the AMC concerning what was seen to be an over-supply of doctors in Australia. The letter was in these terms:

As Chair of the Australian Health Ministers' Conference I am

writing to inform you of the decisions taken by Health Ministers

at their April 1992 meeting in relation to the the (sic) current

oversupply of doctors in Australia. Ministers agreed a broad

ranging strategy to realise a national workforce supply target

of 200 doctors per 100,000 population (a ratio of 1:500)

including decisions to:

- reduce the intake of overseas-trained doctors (OTDs) both as

settlers and on temporary bases entering the workforce;

- from January 1993, establish targets for a phased national

reduction of not less than 20 per cent of temporary visa holding

OTDs currently occupying needs based service positions;

- establish a working group to develop proposals for improving

hospital training and career development and achieving more

efficient service delivery in the hospital sector; and

- seek agreement from the Department of Immigration, Local

Government and Ethnic Affairs to adjust the score value of

medical qualifications (the Federal Government's announcement of

12 May of its intention to reduce the migration program to

80,000 places in 1992-93 included a decision to introduce a 10

point skills sub-factor penalty on medical practitioners).

As part of the national medical workforce strategy Health

Ministers further agreed to the setting of a quota for the AMC

exam so that the total number of OTDs permanently entering the

Australian medical workforce from all sources will be kept to

around 200 per annum.

Given this decision, and in light of recent pass rates for the

exam as provided by the AMC, I wish to advise that Ministers

have decided that the most effective avenue for implementation

of the decision is to limit access to the clinical component of

the AMC process to the top 200 candidates who complete the

multiple choice questionnaire component in any one year.

In relation to the treatment of those OTDs now in the pipeline

for entry to Australia, Ministers advise that they have taken

the decision that it is not reasonable to subject those

candidates who have already passed the multiple choice

examination (but have not yet either commenced or completed the

clinical component) to the quota. Those candidates who have not

yet either commenced or completed the multiple choice component

however, will be subject to the new arrangements.

On behalf of the Australian Health Ministers Conference I

therefore request your immediate implementation of these

arrangements.

10. According to the evidence of Mr John Loy, First Assistant Secretary, Hospitals and Health Financing Division in the Commonwealth Department of Human Services and Health, the view was taken that the most significant factor in the increasing number of medical services, and hence cost, was the growth in number of providers billing against Medicare.

11. On 16 July 1992 the AMC resolved to comply with the request of the AHMC. The quota of 200 was first applied to those candidates sitting for the MCQ examination in October 1992. As a consequence it was not sufficient for a candidate to obtain a pass in the MCQ. He or she had to finish in the top 200 before being permitted to attempt the clinical examination.

12. In 1975 Dr Siddiqui commenced studies at Osmania University Medical School. This medical school is recognised by the World Health Organisation and is affiliated with the University of London. In 1982 Dr Siddiqui graduated Bachelor of Medicine Bachelor of Surgery. He then completed an internship at hospitals associated with the University and held several resident positions before moving to London where he worked in a group surgery in family medicine. After working in 1985 at a hospital in Dublin and then in Pittsburgh he returned to London and obtained a Registrar position at the National Hospital for Nervous Diseases. He obtained the post graduate qualification of Diploma in Clinical Neurology.

13. Dr Siddiqui came to Australia in 1987 in response to an advertisement by the New South Wales Health Department seeking medical practitioners for appointment in the Department's service. Since then he has practised in hospitals in New South Wales, Victoria and Tasmania. He is currently employed at the Dandenong Hospital as a Hospital Senior Medical Officer, primarily in the intensive care unit. A number of references supporting his claims to clinical competence were before the Commission. He has become an Australian citizen. His practice in Australia has been by virtue of temporary registration for limited periods. As a result he has been obliged to move from State to State, although apparently this time limitation no longer applies in Victoria. In any event, he seeks full registration which will give him the right to unrestricted practice and entitle his patients to reimbursement from Medicare. Undoubtedly this is a valuable right for a medical practitioner.

14. Between July 1990 and April 1994 Dr Siddiqui sat six times for the MCQ examination. His results were as follows:

Date %Raw %Adjusted Rank

Pre Quota

July 1990 51 38 311/381

Feb 1991 47 39 258/338

April 1992 55 47 148/367

Post Quota

Oct 1992 54 221/467

April 1993 54 148/345

April 1994 56 234/619

15. Prior to the introduction of the quota, raw scores were adjusted to make allowance for features of the particular examination paper such as the possibility of a candidate guessing the correct answer or the paper not providing a sufficiently wide test. The quota of 200 was set for the year. Thus although Dr Siddiqui finished within the first 200 of candidates in the April 1993 examination he did not come within the quota of 200 for that year. He was required to pay a fee of $750 each time he sat.

Racial Discrimination Act 1975

16. The RDA was, as its preamble indicates, passed for the prohibition of racial discrimination and certain other forms of discrimination and in particular to make provision for giving effect to the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) which entered into force on 2 January 1969. The Convention is a schedule to the RDA. The substantive provisions of the RDA are contained in Part II. Section 9 relevantly provides:

9. (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.

(3) ...

(4) The succeeding provisions of this Part do not limit the

generality of this section.

17. The remaining sections of Part II deal with rights to equality before the law (s 10), access to places and facilities (s 11), land, housing and accommodation (s 12), provision of goods and services (s 14), right to join trade unions (s 13), employment (s 15) and advertisements (s 16). Section 17 provides:

17. It is unlawful for a person:

(a) to incite the doing of an act that is unlawful by reason of

a provision of this Part; or

(b) to assist or promote whether by financial assistance or

otherwise the doing of such an act.

18. Section 18 provides:

18. Where:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national

or ethnic origin of a person (whether or not it is the dominant

reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done

for that reason.

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 employment of the following

rights:

20. Relevantly for the present case those rights include:

(e) economic, social and cultural rights in particular:

(i) the right 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.

21. Article 1 provides that in the Convention the term "racial discrimination"

shall mean any 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

human rights and fundamental freedoms in the political,

economic, social, cultural or any other field of public life.

22. Section 9 (1A) was introduced into the RDA in 1990. In the second reading speech the Minister said (Hansard 20 September 1990 p 2339) that the introduction of the sub-section

... would include, within the meaning of prohibited racial

discrimination, acts that indirectly discriminate by imposing a

requirement or condition which is not reasonable in the

circumstances and which adversely affects a particular racial or

ethnic group. It will not be necessary that the effect is on

every person of the racial or ethnic group. Provisions similar

to (the amendment) already exist in the Sex Discrimination Act.

23. A Government Member, Mr Melham MP, said (Hansard 12 November 1990 p 3768):

The provision is being inserted to ensure that the Racial

Discrimination Act extends to indirect discrimination as

distinct from direct discrimination. Indirect discrimination is

often hard to define and describe. The sort of thing it would

include would be a case where an employer decided that he would

only employ applicants over a certain height. The application

of the requirement would have the effect of disadvantage to

women and persons of short races as there would be more men than

women who complied with this requirement. Indirect

discrimination requires that a higher proportion of persons of a

different status than the aggrieved person must be able to

comply with the requirement or condition than persons of the

same status or group as the aggrieved person.

The operation of the subsection will involve an examination of

whether the imposed term, condition or requirement impacts

disproportionately on persons of the same race etc. This means

that although it will not be necessary to establish that every

person in that group needs to be affected to show a

disproportionate impact, guidance in interpretation will still

have to be found from existing decisions on similar provisions

in Acts such as the Sex Discrimination Act.

24. Mr Melham then went on to refer to Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165. Reference to the same authority had also been made by Mr Peacock MP speaking on behalf of the Opposition in support of the amendment.

25. The provision of the Sex Discrimination Act 1984 (Cth) on which the new s 9(1A) was based was s 5. That section provides as follows:

5. (1) For the purposes of this Act, a person (in this

subsection referred to as the "discriminator") discriminates

against another person (in this subsection referred to as the

"aggrieved person") on the ground of the sex of the aggrieved

person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of

the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of

the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably

than, in circumstances that are the same or are not materially

different, the discriminator treats or would treat a person of

the opposite sex.

(2) For the purposes of this Act, a person (in this subsection

referred to as the "discriminator") discriminates against

another person (in this subsection referred to as the "aggrieved

person") on the ground of the sex of the aggrieved person if the

discriminator requires the aggrieved person to comply with a

requirement or condition;

(a) with which a substantially higher proportion of persons of

the opposite sex to the aggrieved person comply or are able to

comply;

(b) which is not reasonable having regard to the circumstances

of the case; and

(c) with which the aggrieved person does not or is not able to

comply.

26. Historically prohibitions of indirect discrimination like s 9(1A) of the RDA and s 5(2) of the Sex Discrimination Act can be traced back to cases which put a broad construction on statutes prohibiting direct discrimination. Thus s 703(a)(ii) of the United States Civil Rights Act 1964 made it unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his employee status, because of such individual's race, colour, religion, sex or national origin. In Griggs v Duke Power Company [1971] USSC 46; (1971) 401 US 424 the United States Supreme Court held that an employer violated the Act by requiring a high school diploma and a satisfactory intelligence test score for certain jobs previously limited to white employees. In delivering the unanimous opinion of the Court, Burger CJ said (at 429) that the purpose of the Act

... was to achieve equality of employment opportunities and

remove barriers that have operated in the past to favour an

identifiable group of white employees over other employees.

Under the Act, practices, procedures, or tests neutral on their

face, and even neutral in terms of intent, cannot be maintained

if they operate to "freeze" the status quo of prior

discriminatory employment practices.

27. As Deane and Gaudron JJ point out in Banovic (at 175), the United States approach has thus been to take a general prohibition of discrimination "because of" race etc and apply it to

acts or decisions made by reference to criteria or standards

which are apparently non-discriminatory (sometimes referred to

as "facially neutral") but which have a discriminatory effect.

In the United States that application is the result of treating

evidence of discriminatory effect as prima facie proof of

discrimination because of sex, race, or other identified

characteristic.

28. The origin of Australian statutory provisions targeting indirect discrimination has given rise to some divergent views as to the relationship between prohibitions of direct discrimination (like RDA s 9(1)) and indirect discrimination (like RDA s 9(1A)). Are the latter merely "epexegetical to, or explanatory of" direct discrimination prohibitions, merely "spelling out the reach, though not necessarily the whole of the reach" of provisions such as s 9(1)? That was the view of Mason CJ and Gaudron J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 357-359. Subject to a qualification not presently relevant, Deane J (at 382) agreed with the judgment of Mason CJ and Gaudron JJ. However in Banovic Brennan J (at 170-171) and Dawson J (at 184) treated direct and indirect discrimination provisions as mutually exclusive. Also in Banovic (at 175) Deane and Gaudron JJ said that the presence of an indirect discrimination provision in the statute there under consideration (Anti-Discrimination Act 1977 (NSW)) "takes much of the force from any argument that (the direct discrimination provision) should be given a broad application similar to that accorded to provisions in the Civil Rights Act 1964 (US) and the Canadian Human Rights Act 1976-1977 prohibiting discrimination 'because of' sex, race or other characteristic thereby made the subject of unlawful discrimination".

29. To return to Waters, McHugh J (at 400-402) expressed a strong preference for the mutual exclusivity approach and the opinion of Dawson and Toohey JJ (at 392-393) was to the same effect. Subsequently the Full Court of this Court in Commonwealth v Human Rights and Equal Opportunity Commission (Dopking's Case) (1995) 133 ALR 629 proceeded, at least implicitly, on that basis.

30. In my respectful opinion, the mutual exclusivity construction should be applied in the present case to s 9(1) and (1A) of the RDA. Such an approach is consistent with the language of the provisions, their legislative history and the preponderance of authority.

31. In its decision on 7 August 1995 the Commission upheld some of Dr Siddiqui's arguments but not others. Before this Court, counsel for Dr Siddiqui sought to uphold the Commission's decision on all grounds urged before it. Therefore the most convenient approach will be to proceed sequentially through the different issues arising under s 9(1) and (1A) which were before the Commission, bearing in mind of course that the question whether the Commission should or should not have accepted a particular argument has to be considered by this Court within the constraints of judicial review. Before doing so however the conclusions reached by the Commission can be summarised as follows.

32. As to s 9(1), the Commission held that the setting of the examinations by the AMC was an act involving a distinction between those who were obliged to pass in order to gain general registration and those who were entitled to registration without being required to pass the AMC's examinations. However the Commission held that that distinction was not "based on race, colour, descent or national or ethnic origin" because the criterion for the application of the distinction

... is clearly expressed in terms of the identity of the medical

school in which the candidate for registration was trained. If

the candidate was trained in a medical school accredited by the

AMC, then that person does not have to pass any examination set

by the AMC.

33. Therefore the Commission held that the decision to require Dr Siddiqui to sit for and pass examinations was not a decision "based on" his national origin or on the consideration that he was a person not of Australian or New Zealand origin.

34. Turning to s 9(1A), the Commission held that the AMC, in conducting the MCQ examination, was "a person" who "requires another person to comply with a term, condition or requirement". The Commission then had to consider the argument whether the requirement to sit for and pass the examinations was "not reasonable having regard to the circumstances of the case". The Commission rejected the argument that it was not reasonable to require Dr Siddiqui to sit for any examination at all. The alternative argument of Dr Siddiqui was that a term, condition or requirement that he, having satisfied the minimum standards for the MCQ, must meet the quota requirements in order to move on to the clinical examination was not reasonable.

35. The Commission said that it was not persuaded that the Health Ministers acted unreasonably in determining that a quota was necessary or in fixing it at 200 per year. The Commission held however that the requirement was applied unreasonably in the case of Dr Siddiqui. The Commission said:

But we are persuaded that the AMC acted unreasonably in

using (the quota) to screen the number of those doctors who,

having successfully met the minimum requirements of the MCQ,

should be permitted to advance to the clinical examination. It

was unreasonable to require the complainant to sit again for the

MCQ within a year or so of his having satisfied the minimum

requirements. If those minimum standards were intended by the

AMC to ensure that measure of medical knowledge considered to be

requisite for practice in Australia, then it was unreasonable to

introduce an exclusionary principle based on comparative

performance in the MCQ examination. The evidence has left us

with the conclusion that it should have been possible for the

AMC to implement the direction of the Health Ministers'

Conference in such a way as to minimise the trauma associated

with repeated success in the MCQ followed by repeated failure to

be included in the quota. We heard no convincing explanation as

to why the quota should not or could not have been imposed in

order to limit the number of those admitted to sit for the MCQ.

Of course, the quota in that circumstance would be assessed at a

higher figure to allow for the expected failure rate in both the

MCQ and the clinical examination. Alternatively, we heard no

convincing explanation as to why a person who satisfied the

minimum standards prescribed for the MCQ but failed to secure a

place in the quota should not remain credited, for a reasonable

time, with a pass in the MCQ. This would have the result, if

the comparative performance test were abandoned in favour of a

'first come, first served' principle, that such a person would

maintain a place in the queue for the quota to next time around.

36. The Commission then held that the term condition or requirement was one with which the complainant "does not or cannot comply". The Commission rejected the AMC's argument that this test "cannot be satisfied by a mere historical failure to comply in fact". As to s 9(1A)(b), the Commission said that

... it suffices to note the plain and ordinary words of which it

is composed. There is no warrant for straining the plain

meaning of those words so as to limit the reach of the section.

In our opinion, the complainant has not complied and therefore

'does not' comply with the condition.

Every human being, as we have seen, has the right to

equality before the law including the right to work consistently

with his/her qualifications and experience.

We find that the imposition of the quota, in the circumstances

of its application, has impaired the enjoyment of that right on

an equal footing with graduates of accredited medical schools by

persons of a national origin other than Australia and New

Zealand. We find, further, that a substantial number of persons

of the same national origin as the complainant - that is, of

Indian origin - has suffered that impairment. Even if that

latter proposition was not made out on the evidence, as we

believe it is, we find that the discriminatory conduct that is

targeted by s.9(1A) of the Act is established by comparison of

the treatment of graduates of accredited medical schools, they

being predominantly of Australian and New Zealand origin, with

all those OTDs who have been required to pass the AMC

examination and meet the quota requirement, they being

overwhelmingly of a national origin other than either of those

two countries. We base our finding not only on the manner of

the imposition of the quota, but on the consequence of that

quota in raising the minimum standard of the MCQ examination

itself beyond that which is comparable with the level of

knowledge expected of graduates of accredited medical schools.

The case for the first respondent made much of the comparability

in the standard required of OTDs by the MCQ examination. This

comparison was made without any regard to the effect of the

quota. The evidence shows that, since the quota was imposed, it

is not enough to satisfy the minimum requirements of the MCQ

examination in order to proceed to the clinical examination. A

candidate, in order to get into the quota of candidates

permitted to proceed through to the clinical examination, must

meet substantially more than the bare minimum requirements.

Herein, in our opinion, lies the vice of the process. It has

the effect, as well as the purpose, of impairing the enjoyment

by OTDs, on an equal footing with Australia and New Zealand

trained doctors, of the human right to work. It will be seen

from this reasoning that all candidates who have sat for the MCQ

examination since July 1992 when the quota was introduced are

victims of this unfair treatment, not only those who have failed

to secure a place in the quota. The unfair treatment lies in

the effective pass level to which they are subjected, not merely

the outcome. Of course, those candidates who succeeded in

securing a place in the quota would be unable to establish a

case of unlawful indirect discrimination because they had

succeeded in complying with the "discriminatory" requirement.

38. The Commission then went on to make some observations about the conduct of the AMC and the Minister. Consideration of these matters will be postponed to a later stage.

39. The Commission then made a declaration that the respondents had engaged in conduct rendered unlawful by the RDA and should not repeat or continue such unlawful conduct and a declaration that the AMC should declare Dr Siddiqui eligible to undertake the clinical examination without regard to the quota, make the necessary arrangements for him to take the examination, and permit a person nominated by him to attend and observe the conduct of the examination. The Commission declared that the respondents should pay to Dr Siddiqui damages by way of compensation for loss or damage of $50,000 made up as follows:

- injury to feelings and humiliation $10,000

- loss of economic opportunities $15,000

- legal expenses $25,000

$50,000

40. This expression was considered by the South Australian Full Court in ALRM v State of South Australia [1995] SASC 5224; (1995) EOC 92-759 at 78,634. That case was concerned with the appointment of the Hindmarsh Island Royal Commission. Doyle CJ (with the concurrence of Bollen J) said:

... I am of the opinion that the appointment of the Royal

Commissioner is not made unlawful by s 9 of the Racial

Discrimination Act. In my opinion that section is not attracted

unless an act (the relevant act being the appointment of the

Royal Commissioner) is done which in fact produced a distinction

on the base of race (which has occurred here because the inquiry

is into and affects Aboriginal beliefs only) and the existence

of that racial distinction is the basis of the relevant act in

the sense that the act occurred by reason of or by reference to

the racial distinction. This does not mean that the inquiry is

one as to motive. The inquiry is into whether the racial

distinction is a material factor in the making of the relevant

decision or the performing of the relevant act. (Emphasis in

original)

41. I respectfully agree with that approach. The application of the statutory criterion largely involves questions of fact: cf Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 324 per Lockhart J. Within the constraints of judicial review, it has not been shown that the Commission erred in reaching the conclusion it did. I agree generally with what Sackville J has written as to s 9(1) and its application to the present case.

42. In view of the criticism which Dr Siddiqui's case before the Commission and this Court made of the different and allegedly discriminatory treatment of graduates of non-Australian and New Zealand medical schools, reference might usefully be made to the Canadian case of Jamorski v Attorney-General of Ontario (1988) 49 DLR (4th) 426.

43. In Ontario regulations restricted the number of internships available to medical graduates. Graduates of "accredited" medical schools competed for 600 internships. Only 24 internships were available for graduates of "unaccredited acceptable" medical schools. A Canadian body whose function appears to have been comparable to the AMC had accredited all medical schools in Canada and virtually all in the United States. The regulations also provided for "unaccredited acceptable" medical schools, which were defined as schools recognised by the World Health Organisation which had had medical programmes of at least four years duration for at least the last ten years. Graduates of unaccredited acceptable medical schools in Poland complained that their exclusion from the 600 internships and their being forced to compete for only 24 amounted to discrimination contrary to s 15(1) of the Canadian Charter of Rights and Freedoms. In rejecting this claim Zuber J speaking for the Ontario Court of Appeal said (at 432-433):

It cannot be doubted that the regulation 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 practise

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 medical education which have been

carefully assessed and accredited.

Secondly, 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 admissions to internships and

to funding of those internships are redeemed by s 1 of the

Charter.

We are not here concerned with a limit being placed on some

basic right and freedom. There is no constitutional right to

practise medicine. The regulations are a reasonable,

legislative response to the need to provide and regulate medical

education in Ontario and to regulate the admission to the

practice of medicine.

44. It was open to the Commission to find that the AMC was a "person" and that it required Dr Siddiqui to pass the MCQ examination within the first 200. As a matter of reality, the AMC might have had little practical alternative but to accede to the request of the AHMC, but that does not make it any less the case that it was the AMC which, for whatever reason, imposed the requirement in question.

45. On Dr Siddiqui's case the requirement which contravened the RDA was a term, condition or requirement that Dr Siddiqui, having regard to his qualifications and experience, should sit for any examination at all. Alternatively, it was a term, condition or requirement he sit for the MCQ and pass within the first 200. It was open on the evidence for the Commission to find the AMC did "require" Dr Siddiqui to comply with a term, condition or requirement in either of the alternative formulations.

46. The evidence before the Commission did not disclose the internal proceedings of the AHMC which led to the decisions referred to in the letter of 8 July 1992. However, such bodies do not usually operate otherwise than on a consensus basis and in the absence of evidence to the contrary it is reasonable to infer that when the Chair of the AHMC sent the letter to the AMC she did so with the concurrence of all members of the Council, including the Commonwealth Minister. Accordingly, if the letter involved an incitement to the AMC to do the act complained of, then it was open to the Commission to find that the Commonwealth Minister was a party to that incitement. This the Commission implicitly did.

Section 9(1A)(a) - "not reasonable in the circumstances"

47. In a passage which has been adopted on a number of occasions by the High Court, Bowen CJ and Gummow J said in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 263 (speaking of the relevantly indistinguishable provision in s 5(2) of the Sex Discrimination Act) that the test of "reasonableness"

... is less demanding than one of necessity, but more demanding

than one of convenience ... The criterion is an objective one,

which requires the court to weigh the nature and extent of the

discriminatory effect, on the one hand, against the reasons

advanced in favour of the requirement or condition on the other.

All the circumstances of the case must be taken into account.

48. The "circumstances of the case" include, but are not limited to, the personal impact of the requirement on Dr Siddiqui. Also relevant are the reasons for which the AMC has imposed the requirement, which is of course expressed in general terms and not directed at Dr Siddiqui.

49. The presentation of much of Dr Siddiqui's case appeared to assume that the Commission, and this Court, could find that the decision to impose the quota was right or wrong in absolute terms. For example, it was said that the decision was in conflict with the Commonwealth Government's National Agenda for a Multicultural Australia and its Migrant Skills Strategy and was therefore wrong and thus "not reasonable".

50. But the decision to impose the quota involved complex questions bearing on an issue of the first importance for Australian society - how to provide, and pay for, quality health care for all Australians. These questions have political, philosophical and economic aspects. Thus classic economic theory, and common sense, might suggest that the more suppliers of goods or services enter a market, the more prices will be forced down. However there may be ground for thinking that the market for medical services is different because the demand for many services, such as expensive diagnostic tests, is generated by the doctor supplier rather than the patient customer and not paid for directly by the latter. Hence an increase in doctors entering the market may result in more services being provided without any reduction in the price for those services.

51. Many groups in Australian society have an intense interest in decisions about medical costs and doctor numbers - doctors themselves, public and private hospitals, State and Federal health departments, health insurers, unions and consumer organisations to name but a few. Some groups may have, to varying degrees, motives of self-interest which will nevertheless be presented as coinciding with the public interest - as may sometimes be the case. Some groups may wish to challenge the currently prevailing orthodoxy of free trade and assert a claim to protection. Some groups may possess substantial political clout and threaten to use it.

52. All the foregoing confirms the inappropriateness of a single decision-maker, be it a specialist administrative body like the Commission, or this Court, deciding in a forensic setting what is or is not in absolute terms the correct - and therefore "reasonable" - decision. The "political science pathology" of such a decision dictates reference to economic, political and commercial factors: Attorney-General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3rd) 1 at 15, 19.

53. In any case, "reasonable" in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily one with which all people or even most people agree. In Dopking Sheppard J emphasised what is in my respectful opinion an important aspect of reasonableness in an indirect discrimination context. The case was concerned with a complaint by Mr Dopking that a Defence Department determination that a benefit for the reimbursement of legal and other costs in connection with the acquisition of off-base accommodation by armed services personnel discriminated against him because it was restricted to personnel with families. Mr Dopking, being single, was entitled to full board in barracks but wished to live in his own home. Sheppard J said (at 641):

The basis for the discrimination which results from (the

determination's) application only to married members is, in the

circumstances of the case, within the bounds of objective

reasonableness. In other words, the point of distinction which

has been adopted has a logical and understandable basis. There

may have been other ways of approaching the problem; views may

differ about the matter. But, in my opinion, there was nothing

unreasonable in adopting the point of distinction applied by

those responsible for the determination. With respect, I do not

consider any other view to be open. I am thus unable to see how

it can be said that the adoption of the policy to which the

determination gives effect is unreasonable having regard to the

relevant circumstances.

54. In any case, the Commission incorrectly reversed the onus of proof. It approached its task by identifying alternative means of applying the quota (which would have resulted in Dr Siddiqui's acceptance) and then finding that the AMC provided "no convincing explanation" why such alternatives could not be utilised. However the onus remained on Dr Siddiqui to show that the term, condition or requirement in fact applied was not reasonable, in the sense of being not rational, logical and understandable.

55. Moreover once it be accepted, as the Commission did, that a quota of 200 could be lawfully imposed, it is in my respectful opinion impossible to say that it is not a rational application of that quota to select the first 200 candidates in order of merit from the MCQ examination.

56. The practice of medicine requires the possession of a large body of complex knowledge. One way - albeit not necessarily a perfect way or the only way - of selecting the best 200 applicants from a larger number of OTDs seeking registration, is to take those who have demonstrated the most familiarity with that knowledge. More fundamentally, the selection of the 200 by criteria which are merit-based cannot in my view be regarded as other than logical and understandable.

57. There was some reference in the argument before this Court to the contention that factors bearing on the economic regulation of the market for medical service were not relevant under the Victorian Act. The imposition of the quota was within the power of the AMC itself: see cl 17A of its Articles of Association. In my opinion it would not have been open to the Commission to hold that market considerations were unlawful, in the sense of being ultra vires the Medical Board of Victoria, and hence made the decision to impose the quota "not reasonable". Quite apart from constitutional limitations on the Commission's power to make binding determinations of legal rights, the Medical Board of Victoria was not a party to these proceedings.

58. Counsel for the AMC argued that the use of the present tense suggests that the impact of the "term, condition or requirement" has to be considered as at the time the first-mentioned person "requires" it in respect of the complainant. At that time, so the argument ran, "does not" is concerned with the possession of some immutable characteristic, which was not the case with Dr Siddiqui. As to "cannot", it could not be said of Dr Siddiqui that he "cannot" pass the MCQ within the first 200 - he might or might not be able to, depending on how accurate his answers were going to be, compared with those of the other candidates.

59. However, the practical answer seems to be that an examination cannot be failed unless it is attempted. The requirement involves not only the stipulation that Dr Siddiqui sit the MCQ, but his actual attempt and the result thereof. The AMC's argument would mean that the imposition of a physical or intellectual test would fall outside s 9(1A) if some, perhaps only a small percentage, of the complainant's group were able to pass. Looked at another way, it can also be said that the relevant term, condition or requirement is passing the MCQ within the first 200 and Dr Siddiqui "does not" comply because he has not done that.

60. In my opinion the Commission was correct in looking back to see whether the requirement was in fact complied with.

61. The decision of the Commission, and the argument of all counsel before this Court, proceeded on the assumption that s 9(1A)(c) invited comparison between a group to which Dr Siddiqui belonged, whether that group be defined as OTDs or OTDs of Indian national origin, and applicants for registration who, being graduates of accredited medical schools, did not have to sit the AMC examinations.

62. In my opinion, s 9(1A)(c) does not, in the circumstances of this case, mandate or permit such a comparison. The provision speaks of "equal footing" so necessarily some comparison is required. However the two groups compared have to be subject to the same term, condition or requirement. Graduates of Australian and New Zealand medical schools are not required to pass the AMC examinations, with or without quota.

63. The legislative history of s 9(1A) shows that it was designed to deal not with direct discrimination but with the imposition of terms, conditions or requirements which impacted in a disproportionately adverse way on members of the complainant's protected group as defined by race, colour etc.

64. Section 9(1) is apt to deal with an act which operates directly on the complainant - for example, a refusal of service to a person in a hotel. Once that act is shown to be "based on" the complainant's race, colour etc (a "straightforward factual enquiry" which necessitates a search for the true basis: Mt Isa Mines 46 FCR at 324) it would ordinarily follow that the complainant has been prevented from enjoying a right "on an equal footing" with others who do not share the complainant's relevant characteristic and who will be served. Thus a "distinction, exclusion, restriction or preference "is made out as between the complainant and other persons not subject to discriminatory acts of a like nature. The discriminatory act (refusal of service) is explicitly or implicitly connected with the prohibited criteria of race, colour etc.

65. However, and notwithstanding the approach of United States courts referred to above, it is understandable that Australian legislators might have thought that the imposition of a term, condition or requirement which on its face applied to all who had to meet it, regardless of race, colour, etc, could not be an act involving a distinction etc "based on" race, colour etc. Accordingly s 9(1A) was introduced. The problem of a term, condition or requirement not having any apparent connection with race, colour etc is overcome because the law can now look at how the complainant and his or her group fare in facing the term, condition or requirement compared with others not of that group who also face it. It seems to me that such a comparison is essential. If the term, condition or requirement is in truth "based on" race, colour etc then no comparison is required and we need go no further - s 9(1) applies. If it is not, then only by the comparison suggested can it be ascertained whether the term, condition or requirement has the purpose or effect proscribed by s 9(1A)(c). I might add that the comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a sub-group (the complainant's group) within a larger group (all who face the same term, condition or requirement).

66. This reading is supported by the mutual exclusivity approach and the legislative intention emerging from the explicit reliance on Banovic in the Parliamentary debates.

67. In Banovic the High Court had to consider s 24(1) and (3) of the Anti-Discrimination Act 1977 (NSW) which for practical purposes are indistinguishable from s 5(1) and (2) of the Sex Discrimination Act. In dealing with the equivalent of s 5(2)(a) Dawson J said (168 CLR at 187):

But a proportion must be a proportion of something, so that

it is necessary to determine the appropriate grouping or pool

within which to calculate the proportions which are to be

compared. The English cases have discussed in detail the

problems associated with the determination of an appropriate

base group. Two main contrasting approaches can be identified.

One seeks to narrow the base group to the particular group of

persons to whom the requirement is directed, while the other

seeks to establish a broader base beyond the immediate context.

The need to select an appropriate base group, which may be

limited to the immediate context, was recognised in Kidd v DRG

(UK) Ltd (1985) ICR 405 at 409 where Waite J, in delivering the

decision of the Employment Appeal Tribunal, held that:

"... for the purposes of the statutory comparison, like must

be compared with like in a context appropriate to the case under

review. The consequence is that the particular section of the

members of the public upon whose lives the impact of the

relevant requirement or condition has to be measured is liable

to vary from case to case - ranging from the population as a

whole at one end of the scale to employees of a single workplace

at the other: and there is liable also to be ample scope for

debate in many instances as to which section of the public

within that range is the right one to choose for a particular

case."

As that passage indicates, the contextual approach will provide

different answers depending upon the circumstances of each case.

For example, where a requirement is contained in a published

offer of employment, the relevant base group may be made up of

those who might be expected to be eligible to take up the

employment based upon geographical, educational and other

restraints. Similarly, where a requirement is imposed upon

existing employees, the relevant group may be the class of

employees affected.

68. It is clear that the base group is a group which is affected by the term, condition or requirement in question; in the words of Waite J, the particular section of the public "upon whose lives the impact of the relevant requirement or condition has to be measured". Relevantly, the only way Dr Siddiqui could make out a case to satisfy s 9(1A)(c) would be to show that OTDs of Indian national origin who met the quota formed a lower proportion of all OTDs meeting the quota than the proportion that all Indian OTDs applying for registration bore to all OTD applicants. In other words, the question would be whether the quota requirement had a disproportionate adverse impact on OTDs of Indian national origin. There was no attempt to make out such a case.

69. The distinction between direct and indirect discrimination can be illustrated by a case concerning a uniquely Australian contribution to the history of racism which might at first blush be thought to be indirect discrimination and the kind of conduct targeted by s 9(1A).

70. Under s 3(a) of the Immigration Restriction Act 1901 (Cth) the various categories of prohibited immigrants included a person who, when asked to do so by an officer, failed to write at dictation and sign in the presence of the officer "a passage of fifty words in length in an European language directed by the officer". The test was considered by the High Court in R v Wilson; ex parte Kisch [1934] HCA 63; (1934) 52 CLR 234. The Commonwealth authorities were anxious to exclude Kisch, not on racial grounds (he was a white man and a Czechoslovakian national), but because he was considered a dangerous political radical. He was also an accomplished linguist. The solution which occurred to the authorities was to give him a dictation test in Scottish Gaelic. In his foreword to Kisch's "Australian Landfall" (Macmillan, 1969) at xvi Professor A T Yarwood suggests there was "a somewhat exaggerated assessment of his proficiency in various languages". In any event, a majority of the High Court held that Scottish Gaelic was not "an European language" because it was not "a standard form of speech recognised as an ordinary means of communication amongst the inhabitants in an European community for all the purposes of the social body" (52 CLR at 241).

71. The dictation test operated as a direct act which, in terms of RDA s 9(1), involved a distinction "based on" race. Had s 9(1) been in existence in 1934 there would be little doubt of a finding that the dictation test was in fact an act "based on" race. Counsel for the Commonwealth argued (at 239):

By not defining the expression "an European language" the

Legislature retained the right to apply an arbitrary test. The

statutory provision was designed, primarily, for the exclusion

from the Commonwealth of Asiatics, the underlying motive being

the preservation of a "white" Australia.

72. But there was no question of Kisch being a member of a group upon which the dictation test impacted in a disproportionate way. It was not a case of all immigrants being subject to the dictation test with the percentage of Czechs failing the test being higher than the percentage Czechs bore to immigrants as a whole.

73. In the present case the requirement that OTDs sit any examination, or pass an examination within the 200 quota, could have been an act contravening s 9(1) if, as a matter of fact, it was "based on ... national or ethnic origin". On the evidence the Commission was not prepared to find that the requirement was so based. That conclusion was plainly open on the evidence. This was a case of s 9(1) or nothing.

74. In any event, there may be some doubt whether the right to practise medicine on an unrestricted basis is a "human right or fundamental freedom": see Jamorski, supra.

75. Counsel for Dr Siddiqui contended that the Minister was a "Commonwealth agency" and was therefore confined to the review contained in s 25ZH of the RDA which makes provision for applications for review by Commonwealth agencies to the Administrative Appeals Tribunal on declarations awarding damages to complainants. However the review provisions in s 25ZH necessarily assume a lawful determination of the Commission. There is no basis for inferring an intention by Parliament to exclude judicial review under the AD(JR) Act.

76. Section 25Z(1)(b)(iv) of the RDA confers power on the Commission, after holding an enquiry, to make "a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent". In its ordinary meaning that power would not support the order which the Commission purported to make requiring payment of $25,000 for "legal expenses". In modern usage the expression "damages by way of compensation for loss and damage suffered by reason of the conduct of the respondent" would not extend to legal costs incurred by a complainant. This reading is confirmed by the existence of s 25ZB which gives an express power to the Commission to recommend to the Attorney-General that assistance be given to persons concerned with enquiries "in respect of expenses incurred by the person in connection with the enquiry".

77. Counsel for Dr Siddiqui contended that the damages awarded were too low. In the view I take this question does not of course arise. In any event, no argument was addressed beyond the bare assertion of inadequacy.

78. In its determination under the heading "Conclusion" the Commission said:

It follows from our findings that we find the complaint to be

substantiated. Before proceeding to consider our determination,

we wish to add some observations.

79. The Commission then proceeded to criticise in strong terms the system governing the admission of OTDs to medical practice in Australia. It said that the system was

grossly unfair, resulting in unnecessary trauma, frustration and

a deep sense of injustice in many doctors, their families and

friends.

80. The Commission stated that with the consent of the parties it had written to the Minister expressing concern at the effect of immigration policies which encourage OTDs to come to Australia in the expectation of being admitted to practice within a reasonable time, but the majority of whom "are apparently destined to suffer the enormous frustration of disappointed hopes". The Commission then stated:

Furthermore we regret to have to say that we are

disappointed in the apparent inability of the respondents to

appreciate the depth of the sense of injustice that the

experience of the complainant has induced. We invited the

parties to participate in a conciliation process in the hope

that a spirit of compromise might enable some resolution of the

difficulties confronting both the complainant and the

respondents. But the respondents were unable to move beyond the

bunker of their perceived legal security and so any meaningful

process of conciliation was doomed at the threshold. Frankly,

we find it scandalous that Dr Siddiqui should have satisfied the

minimum requirements of the MCQ examination with a margin to

spare on no less than three occasions but been prevented by the

quota from proceeding to the clinical examination.

81. Since the Commission has educative and lobbying functions (see Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(g) and (j)), it is quite appropriate for it to express a view, and if need be in strong terms, as to the conduct of persons and institutions as revealed by evidence before it insofar as that conduct contravenes the RDA. Likewise, if governmental policies and practices are seen as conflicting with the high objectives of the RDA, or as otherwise calling for reconsideration, again the Commission is entitled to express its view forcefully.

82. However quite different considerations apply when, at the invitation of the Commission, parties have engaged in a conciliation process. It is of the essence of conciliation that confidentiality be respected. If the dispute cannot be resolved by conciliation, then the Commission can only proceed to determine it on the evidence. If parties before the Commission are to be publicly chastised for the attitude that they have taken in the conciliation process, there will be a strong disincentive for parties to engage in conciliation at all. That would be especially unfortunate for those who complain of discrimination.

83. In the applications of the AMC (VG 751 of 1995) and the Minister (VG 752 of 1995) there should be orders that the determination of the Commission dated 7 August 1995 be set aside. I think it appropriate that the complaint of Dr Siddiqui be dismissed rather than the matter be remitted to the Commission for reconsideration. I say that because there has been a clear finding of fact as to the application of s 9(1) adverse to Dr Siddiqui. As to s 9(1A), it would not be open in my view to the Commission to make any finding in the light of the way the case was presented to it by Dr Siddiqui. I think this case is subject to the kind of considerations mentioned by Drummond J in Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455 at 482. The Minister did not seek an order for costs. There should be an order that Dr Siddiqui pay the AMC's costs of its application, including reserved costs. Dr Siddiqui's application (VG 787 of 1995) should be dismissed with an order that he pay the AMC's costs in defending the application, including reserved costs.

SACKVILLE J I have had the advantage of reading in draft the judgment of Heerey J. I gratefully adopt his Honour's statement of the facts. I agree with the orders proposed by his Honour. I am in agreement with much of his Honour's reasoning, but I prefer to state my own conclusions on certain issues.

2. The Racial Discrimination Act 1975 (Cth) (the "RD Act") was enacted, as its recitals make clear, in order to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention"). The Convention was unanimously adopted on 21 December 1965 by the General Assembly of the United Nations, and entered into force on 4 January 1969. Australia signed the Convention on 13 October 1966 and ratified it on 31 October 1975, by which time it had been ratified by over 80 other nations. By June 1995, it had been ratified by 143 nations: Race Discrimination Commissioner, The Racial Discrimination Act: A Review (December 1995), 20. The background to the Convention is discussed in detail by E. Schwelb, "The International Convention on the Elimination All Forms of Racial Discrimination" (1966) 15 Int and Comp LQ 996 and by Stephen J in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, at 218-220. See also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, at 124-125, per Brennan J; T. Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination" (1985) 79 Am J Int Law 283.

3. In Koowarta, a majority of the High Court upheld the validity of s.9 (in its then form) and s.12 of the RD Act, as an exercise of the Commonwealth Parliament's power to make laws with respect to external affairs, under s.51(xxix) of the Constitution. Section 7 of the RD Act approves ratification by Australia of the Convention, which is reproduced as a schedule to the Act. Before turning to s.9 which, in its amended form, is relied upon by Dr Siddiqui in the present case, it is convenient to refer to portions of the Convention.

4. As Stephen J pointed out in Koowarta, at 218-219, the Charter of the United Nations emphasised the international recognition of human rights and fundamental freedoms. The preamble to the Convention borrows, in part, from the language of the Charter to express the objectives of the Convention:

"The States Parties to this Convention,

Considering that the Charter of the United Nations is based

on the principles of the dignity and equality inherent in all

human beings, and that all Member States have pledged themselves

to take joint and separate action, in co-operation with the

Organization, for the achievement of one of the purposes of the

United Nations which is 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,

Considering that the Universal Declaration of Human Rights

proclaims that all human beings are born free and equal in

dignity and rights and that everyone is entitled to all the

rights and freedoms set out therein, without distinction of any

kind, in particular as to race, colour or national origin,

Considering that all human beings are equal before the law and

are entitled to equal protection of the law against any

discrimination and against any incitement to discrimination,

...

Resolved to adopt all necessary measures for speedily

eliminating racial discrimination in all its forms and

manifestations, and to prevent and combat racist doctrines and

practices in order to promote understanding between races and to

build an international community free from all forms of racial

segregation and racial discrimination".

5. For the background to the preamble, see E.Schwelb, at 1029-1031.

6. Article 1(1) of the Convention defines the term "racial discrimination" to mean:

"any 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

human rights and fundamental freedoms in the political,

economic, social, cultural or any other field of public life."

7. This language has been adopted by s.9(1) of the RD Act and, to a more limited extent, by s.9(1A)(c). As some commentators have observed, part of the difficulty in construing the Convention derives from the fact that the definitional article was drafted first. The definition was not adjusted to accord with the operative provisions of the Convention once they had been prepared: see T. Meron, at 291.

8. Article 2(1) of the Convention provides as follows:

"States Parties condemn racial discrimination and undertake

to pursue by all appropriate means and without delay a policy of

eliminating racial discrimination in all its forms and promoting

understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice

of racial discrimination against persons, groups of persons or

institutions and to ensure that all public authorities and

public institutions, national and local, shall act in conformity

with this obligation;

(b) ...;

(c) ...;

(d) Each State Party shall prohibit and bring to an end, by all

appropriate means, including legislation as required by

circumstances, racial discrimination by any persons, group or

organisation;

...".

9. Article 5 identifies the rights to be enjoyed without distinction as to race, colour or national or ethnic origin:

"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:

(a) The right to equal treatment before the tribunals and all

other organs administering justice;

(b) The right to security of person...;

(c) Political rights...;

(d) Other civil rights, in particular:

...

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association

with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and

religion;

...

(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;

...

(f) The right of access to any place or service intended for

use by the general public such as transport, hotels,

restaurants, cafes, theatres and parks."

10. As Schwelb notes (at 1004), the list of rights in art.5 of the Convention is not limited to those referred to in the Universal Declaration of Human Rights: see, for example, art.5(d)(iv) and (f), neither of which is mentioned in the Universal Declaration. Moreover, there are divergences, if not contradictions, between art.1 and art.5. Article 5 includes some rights, such as the right to freedom of thought and the right to marriage and choice of spouse, which (however important) are difficult to classify as rights and freedoms "in the political, economic, social, cultural or any other field of public life": see Schwelb, at 1004-1006.

11. It is not surprising to find imprecision of language and even apparent inconsistencies in the drafting of international instruments. The Convention, although unanimously endorsed in 1965, was the product of extensive negotiations among a large number of diverse nation states. The difficulty for Australian courts arises when the language of an international convention is incorporated into Commonwealth legislation and therefore must be construed for the purposes of domestic law.

The Racial Discrimination Act

12. Section 9 of the RD Act is critical to the present proceedings. Sub-sections (1), (2) and (4) of s.9, which were in the RD Act as originally passed, are as follows:

"9.(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.

...

(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.

...

(4) The succeeding provisions of this Part do not limit the

generality of this section."

13. Section 9(1) follows very closely the definition of "racial discrimination" in art.1(1) of the Convention. Section 9(2) defines the concluding words of s.9(1) to "include" any right "of a kind referred to" in art.5 of the Convention. It follows that the human rights or fundamental freedoms protected by s.9(1) are not necessarily limited to those specified in art.5 of the Convention. Moreover, s.9(2) qualifies what otherwise might be the limiting effect of the words "or any other field of public life" appearing in s.9(1), since not all the rights specified in art.5 relate to a "field of public life".

14. Section 9(1A) of the RD Act was enacted in 1990. The sub-section reads as follows:

"(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."

15. Heerey J has discussed the background to the enactment of the sub-section. I do not wish to repeat the material to which his Honour has referred. However, as the Parliamentary debates cited by Heerey J demonstrate, the enactment of s.9(1A) of the RD Act reflected a view that, in the absence of such a provision, "indirect discrimination" would not, or might not, be covered by the legislation. In Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, at 175, Deane and Gaudron JJ described indirect discrimination, in a case involving discrimination on the ground of sex, as "acts having a disparate impact on men and women". Their Honours went on to note that provisions in the Civil Rights Act 1964 (US) and the Canadian Human Rights Act 1976

"have been applied to acts or decisions made by reference to

criteria or standards which are apparently non-discriminatory

(sometimes referred to as 'facially neutral') but which have a

discriminatory effect. In the United States that application is

the result of treating evidence of discriminatory effect as

prima facie proof of discrimination because of sex, race, or

other identified characteristic."

16. The view that, in the absence of s.9(1A), the RD Act would not cover indirect discrimination is not necessarily supported by the terms of the Convention, which the RD Act is intended to implement. The language of the Convention, particularly the preamble and arts. 2 and 5, suggests that it was intended to require state parties to address indirect discrimination and not merely what can be described as "direct" discrimination: T. Meron, at 288-289. I shall return later to the relationship between s.9(1) and s.9(1A) of the RD Act.

17. Section 9(1A) of the RD Act follows, in general terms, the approach to indirect discrimination taken in s.5(2) of the Sex Discrimination Act 1984 (Cth) ("SD Act"), as it stood until s.5(2) was repealed and replaced by the Sex Discrimination Amendment Act 1995 (Cth). The earlier form of s.5(2) of the SD Act, like much Australian anti-discrimination legislation, owed a good deal to the drafting of the Sex Discrimination Act 1975 (UK) ("UK Act"). The relevant provisions of the UK Act are as follows:

"1(1) A person discriminates against a woman in any

circumstances relevant for the purposes of any provision of this

Act if -

(a) on the ground of her sex he treats her less favourably than

he treats or would treat a man, or

(b) he applies to her a requirement or condition which applies

or would apply equally to a man but-

(i) which is such that the proportion of women who can comply

with it is considerably smaller than the proportion of men who

can comply with it, and

(ii) which he cannot show to be justifiable irrespective of

the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply

with it.

...

2(1) Section 1, and the provisions of Parts II and III relating

to sex discrimination against women, are to be read as applying

equally to the treatment of men, and for that purpose shall have

effect with such modifications as are requisite.

(In Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 (FCA/FC), at 256, Bowen CJ and Gummow J, in the course of comparing s.5(2) of the SD Act with the UK Act, stated that the latter was directed to discrimination against women only. However, in view of s.2(1) of the UK Act, which has formed part of the legislation since its commencement, that statement was in error.)

18. The UK Act has influenced the drafting of anti-discrimination legislation in Australia, although the Australian legislation is far from uniform: see, for example, Anti-Discrimination Act 1977 (NSW), s.7 (racial discrimination), s.24 (sex discrimination), s.39 (marital status), s.49ZG (homosexuality); Equal Opportunity Act 1995 (Vic), s.8 (definition of direct discrimination), s.9 (definition of indirect discrimination); Anti-Discrimination Act 1991 (Qld), s.10 (definition of direct discrimination), s.11 (definition of indirect discrimination); Equal Opportunity Act 1984 (WA), s.8(2) (sex discrimination); s.9(2) (marital status); s.10(2) (pregnancy); s.35(2) (family status); s.36(2) (racial discrimination); Equal Opportunity Act 1984 (SA), s.29(1),(2) (sex discrimination) s.29(3) (sexuality); s.29(5) (marital status); s.29(6) (pregnancy); s.51 (racial discrimination). See also Disability Discrimination Act 1992 (Cth), ss.5 and 6, which broadly follow the language formerly used in the SD Act; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, at 357-8, per Mason J and Gaudron J.

19. A new approach to indirect discrimination has been taken by the Sex Discrimination Amendment Act 1995 (Cth). That Act substitutes what was described in the second reading speech as a simpler test of indirect discrimination. Section 5 of the SD Act now reads as follows:

"5.(1) ...

(2) For the purposes of this Act, a person (the

'discriminator') discriminates against another person (the

'aggrieved person') on the ground of the sex of the aggrieved

person if the discriminator imposes, or proposes to impose, a

condition, requirement or practice that has, or is likely to

have, the effect of disadvantaging persons of the same sex as

the aggrieved person.

(3) This section has effect subject to sections 7B and 7D."

20. See also s.6(2) (marital status); s.7(2) (pregnancy). Section 7B provides a defence to a claim of discrimination where the condition, requirement or practice having the disadvantaging effect referred to in s.5(2) is "reasonable in the circumstances". This contrasts with the pre-1995 position under the SD Act, whereby it was necessary for the complainant to show the absence of reasonableness in order to establish indirect discrimination: SD Act, s.5(2)(b) (prior to the 1995 amendment). The burden of proving that a condition, requirement or practice having a disadvantaging effect does not constitute discrimination, because it is reasonable in the circumstances, now lies on the person who imposes the condition, requirement or practice: s.7C.

21. The then Attorney-General, in the second reading speech for the 1995 Bill, stated that the changes had been made because

"the indirect discrimination provisions of the act ... have

proven complicated and difficult to apply in practice and ...

have been criticised for being overly technical, legalistic and

complex."

Parl Deb, HR, 28 June 1995, 2460 (the Hon. M. Lavarch).

22. The amendments to the SD Act reflect, in part, the approach proposed by the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal (1992), although that report did not propose amendments in the form finally adopted by the Commonwealth Parliament: see para.101.

23. Section 9(1) of the RD Act - The Requirement to Pass an Examination Dr Siddiqui's first argument was that the requirement that he sit and pass the Australian Medical Council ("AMC") examinations was unlawful, by reason of s.9(1) of the RD Act. It will be recalled that s.9(1) makes it unlawful

(i) for a person;

(ii) to do any act;

(iii) involving a distinction, exclusion, restriction or

preference;

(iv) based on race, colour, descent or national or ethnic

origin;

(v) 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 other field of public life.

24. Dr Siddiqui's contention was that the AMC had done an act which involved a distinction based on his national origin. That act, so it was argued, had the proscribed purpose or effect, because it nullified the enjoyment or exercise, on an equal footing, of his right to work and to free choice of employment (see RD Act, ss.9(1) and (2); Convention, art.5(e)(i)).

25. As Gibbs CJ said in Gerhardy v Brown (at 86), the words of the RD Act, taken as they are from the Convention, are "vague and elastic". Subsequent cases have shed light on some of the difficult questions of construction posed, in particular, by s.9(1), although have certainly not resolved all issues. Several observations can, however, be made on issues relevant to the present case.

26. First, although no case has yet authoritatively determined the relationship between s.9(1) and s.9(1A) of the RD Act, the balance of opinion in relation to comparable legislation favours the view that the two sub-sections are mutually exclusive in their operation. If this is correct, s.9(1) is confined to so-called "direct discrimination", while s.9(1A) is concerned exclusively with "indirect discrimination".

27. In Australian Iron and Steel Pty Ltd v Banovic, at 184, Dawson J expressed the view that s.24(1) of the Anti-Discrimination Act 1977 (NSW) (which dealt with discrimination on the ground of sex) could not be read so as to cover indirect discrimination on the ground of sex. His Honour pointed out that the topic of indirect discrimination was dealt with separately in s.24(3). Accordingly, to hold that s.24(1) extended to this form of discrimination would have rendered s.24(3) superfluous. A similar view seems to have been accepted by Brennan J (at 171). (It should be noted that s.24 of the Anti-Discrimination Act has subsequently been amended, but not in a manner that appears to affect the reasoning of the High Court).

28. In Waters v Public Transport Corporation, at 392-393, Dawson and Toohey JJ applied Dawson J's observations in Banovic to s.17(1) and s.17(5) of the Equal Opportunity Act 1984 (Vic.) (dealing with discrimination on the ground of status, including physical disability). McHugh J expressed (at 402) the same view. He did so on the ground that accepted principles of statutory construction do not allow use of a general provision, such as s.17(1), to make findings of indirect discrimination in disregard of the specific conditions attached to s.17(5) (which specifically addresses the issue of so-called indirect discrimination). The contrary view was adopted by Mason CJ and Gaudron J in Waters, at 359. Their Honours rejected the proposition that s.17(5) of the Victorian Act was intended to be a complete and exhaustive statement of what constitutes indirect discrimination for the purposes of s.17.

29. It is not entirely clear that the majority view expressed in the High Court, in relation to State anti-discrimination legislation, will necessarily apply to the RD Act. Section 9(1) of the RD Act is intended to give effect to the Convention. As I have previously noted, it is at least arguable that the definition of "racial discrimination" in art.1(1) of the Convention, which is incorporated into s.9(1), was intended to apply to indirect as well as to direct discrimination. Moreover, s.9(1A) was added to the RD Act some 15 years after its enactment. The insertion of a provision dealing with indirect discrimination 15 years after s.9(1) was enacted does not necessarily lead to the conclusion that s.9(1) was never intended to cover indirect discrimination. On the other hand, the extrinsic materials, which have been referred to by Heerey J, clearly suggest that s.9(1A) of the RD Act was inserted precisely because of concerns that s.9(1) would not extend to indirect discrimination.

30. Unless and until the High Court specifically considers the specific terms and legislative history of the RD Act, I think that the preferable course is to regard s.9(1) and s.9(1A) of the RD Act as mutually exclusive and thus to regard s.9(1) as confined to cases of indirect discrimination. Of course, this still leaves open the question of where "direct" discrimination ends and "indirect" discrimination begins in a particular case. It also bears on whether a restrictive or broad approach should be taken to the construction of s.9(1A).

31. Secondly, the preponderance of opinion favours the view that s.9(1) does not require an intention or motive to engage in what can be described as discriminatory conduct. In Waters, Mason CJ and Gaudron J held (at 359) that the words "on the ground of the status (of the complainant)" in s.17(1) of the Equal Opportunity Act 1984 (Vic), do not imply that the alleged discriminator must intend to treat the complainant less favourably because of his or her status (as a person subject to a disability). It is enough

"that the material difference in treatment is based on the

status...of that person, notwithstanding an absence of intention

or motive on the part of the alleged discriminator relating to

(that consideration)".

32. A similar view had been expressed by Deane and Gaudron JJ in Banovic at 176-177; compare Dawson J, at 184. In Waters, of those who considered this issue, Deane J agreed with Mason CJ and Gaudron J, while McHugh J considered (at 401) that intention or motive is a necessary condition of liability in a case of alleged direct discrimination.

33. In James v Eastleigh Borough Council [1990] UKHL 6; (1990) 2 AC 751 (HL), a majority of the House of Lords held that the test to be applied under s.1(1)(a) of the UK Act is objective. The majority decided that a council policy, allowing free admission to a swimming pool to persons of pensionable age, infringed s.1(1)(a) of the Act, in circumstances where the pensionable age for women was 60, but for men was 65. Lord Bridge did so on the ground that the statutory pensionable age, which was adopted by the council, was (at 763)

"itself a criterion which directly discriminates between men and

women in that it treats women more favourably than men 'on the

ground of their sex'".

34. The test to be applied was whether the plaintiff, a man of 61, would have received the same treatment as his wife, but for his sex. See also at 769-770, per Lord Ackner; at 772, per Lord Goff. The majority applied Birmingham City Council v Equal Opportunity Commission (1989) AC 1155 (HL), a case referred to in Waters. James itself was not referred to by the High Court in Waters, although the decision of the Court of Appeal (James v Eastleigh Borough Council (1990) 1 QB 61), which was reversed by the House of Lords, had been referred to in the judgments of Deane and Gaudron JJ and Dawson J in Banovic. Nevertheless, James strongly supports the views expressed by Mason CJ, Deane and Gaudron JJ in Waters.

35. Thirdly, the phrase "national origin", which is used in both s.9(1) and s.9(1A), has received consideration by the House of Lords, in the context of a claim brought under the Race Relations Act 1968 (UK): Ealing London Borough Council v Race Relations Board [1971] UKHL 3; (1972) AC 342. Section 1(1) of that Act provided that, for the purposes of the legislation, a person discriminates against another if

"on the ground of colour, race or ethnic or national origins he

treats that other...less favourably than he treats or would

treat other persons".

36. The majority of the House of Lords held that a requirement that persons seeking public housing be British subjects, did not contravene s.1(1).

37. The majority rejected the contention that the phrase "national origins" refers to current nationality. Viscount Dilhorne concluded (at 358), having regard to the "racial objects" of the legislation, the words were intended to refer to "national" in the sense of race and not citizenship. The national origins of the particular applicant were Polish, since his race was Polish. The housing authority had not discriminated against him because of racial origins, but because he was not a British subject. Lord Simon took a similar approach, emphasising (at 363-364) that "national origins" did not necessarily imply statehood. His Lordship took the view that to discriminate, for example, against English, Scots or Welsh, as such, would be to discriminate on the ground of their national origins. Thus, had the applicant been refused housing because of his Polish descent, he would have been discriminated against on the ground of his "national origins".

"There is no definition of 'national origins' in the Act and

one must interpret the phrase as best one can. To me it

suggests a connection subsisting at the time of birth between an

individual and one or more groups of people who can be described

as a 'nation' - whether or not they also constitute a sovereign

state. The connection will normally arise because the parents

or one of the parents of the individual in question are or is

identified by descent with the nation in question, but it may

also sometimes arise because the parents have made their home

among the people in question....Of course, in most cases a man

has only a single 'national origin' which coincides with his

nationality at birth in the legal sense and again in most cases

his nationality remains unchanged throughout his life. But

'national origins' and 'nationality' in the legal sense are two

quite different conceptions and they may well not coincide or

continue to coincide."

39. Not all of the reasons put forward in the speeches of the majority in support of these conclusions apply to the RD Act: see at 361-363, per Lord Simon. Nonetheless, there is powerful independent support for the conclusion that "national origin", as used in s.9 of the RD Act, does not simply mean citizenship. Article 1(2) of the Convention specifically provides that the Convention is not to apply to distinctions, exclusions, restrictions or preferences made by a State Party between citizens and non-citizens. In my opinion, Ealing provides guidance for Australian courts concerning the meaning of the phrase "national origin", as used in s.9 of the RD Act.

40. Surprisingly little attention was devoted, either in the evidence or the argument put forward on behalf of Dr Siddiqui, to the question of his national origin. However, it seems that he was born and educated in India and that his racial background is Indian. Accordingly, although he became an Australian citizen in 1982, it is very likely that his national origin, for the purposes of the RD Act, is Indian.

41. Was there an Act or Distinction Based on National Origin?

The text of s.9(1) of the RD Act does not make it clear whether, relevantly, it is the act involving a distinction which must be based on race, colour, descent or national or ethnic origins, or whether it is the distinction itself which must be based on one or more of those factors. This difficulty may be left aside for present purposes. The AMC's registration requirements distinguish between those who are obliged to pass those examinations to gain general registration under State and Territory legislation and those who are entitled to gain that registration without being required to pass the examinations.

42. Dr Siddiqui must demonstrate, inter alia, that the distinction imposed by the AMC was based on one of the criteria specified in the RD Act. Dr Scutt made many criticisms of the policy underlying the AMC's decision to accredit only Australian and New Zealand University medical schools, thereby requiring graduates of overseas medical schools ("OTDs") to sit for and pass the examination set by the AMC. Whatever validity Dr Scutt's criticisms may or may not have, they have no significance for the purposes of s.9(1) of the RD Act unless it can be shown that the distinction applied by the AMC was based on the factors specified in the statute. Although Dr Scutt did not identify precisely which of the criteria specified in s.9(1) was alleged to be satisfied in the present case, she appeared to rely upon national origin. Accordingly, I shall approach the case upon the footing that Dr Siddiqui's case is that the AMC performed an act, or imposed a distinction, based on national origin, in contravention of s.9(1) of the RD Act.

43. The most obvious case of a distinction based on national origin is one where a distinction is imposed expressly by reference to a person's national origin. If, for example, a medical college explicitly denied admission to all persons of Indian origin, that act, or the distinction involved in the act, would clearly be based on national origin. (It might also be based on other grounds covered by s.9(1), but that is not presently relevant.) Even where the act or distinction is not expressly based on national origin, if the criterion actually applied by the alleged discriminator is national origin that is enough to attract the legislation. In James v Eastleigh Council, for example, free admission to the pool was available to all persons of "pensionable age" and no express reference was made to the sex of those seeking to use the facilities. But since the pensionable age for women was lower than that for men, the discrimination was "on the ground of...sex". The case was viewed by their Lordships as one involving direct discrimination.

44. In Banovic, Deane and Gaudron JJ, when discussing direct discrimination "on the ground of sex" under s.24(1) of the Anti-Discrimination Act 1977 (NSW), suggested that the "true basis" for an act or decision is the "ground" of the decision. The "true basis" is not necessarily the ground assigned for the act or decision (176-177):

"in the ascertainment of the true basis of an act or decision it

may well be significant that there is some factor, other than

the ground assigned, which is common to all who are adversely

affected by that act or decision. In certain situations that

common factor may well be seen to be the true basis of the act

or decision. And that may also be the case where some factor is

identified as common to a significant proportion of those

adversely affected".

45. Dawson J also adopted the phrase "true basis". His Honour said (at 184):

"The mere assertion of a ground which is not sex will not take

discrimination out of the sub-section if the true basis for the

action in question is in fact sex. Thus, in the present case if

it could have been shown that the "last on, first off" principle

was selected as the ground for retrenchment, not as an equitable

means of shedding redundant employees, but as a means of

shedding female employees more quickly, s.24(1) would have

applied. The true ground would then have been sex and any

discrimination would have been on that ground. But that was not

shown."

46. In a future case it may be necessary to consider the relationship between these statements and the view of a majority of the High Court that s.9(1) and s.9(1A) are intended to be mutually exclusive.

47. The AMC (or, for that matter, the Victorian Parliament), in imposing an examination requirement, did not apply any criterion expressed by reference to the national origin of persons seeking registration as medical practitioners. The requirement that a graduate undertake and complete successfully the examination in order to gain registration was expressed to apply to all applicants, regardless of their national origin, who were not graduates of an Australian or New Zealand medical school. A person of Australian national origin who graduated from an overseas medical school was in precisely the same position as Dr Siddiqui or any other OTD. By contrast, a person of Indian national origin who graduated from an Australian or New Zealand medical school was not required to attempt and pass the AMC's examination.

48. There was nothing in the evidence to suggest that, even though the AMC did not impose any distinction expressed by reference to the national origin of candidates, nonetheless the "true basis" for requiring OTDs to undertake the examination was their national origin. The criterion applied by the AMC was not a subterfuge for drawing a distinction between particular candidates for registration, the true basis for which was their differing national origins. No suggestion was made, for example, that persons of Indian origin were at any disadvantage, by reason of their national origin, in gaining entry to or graduating from Australian or New Zealand medical schools. In any event, the evidence did not suggest that this was the case. Of the 883 first year medical students in Australia for whom information was available in 1994 (being Australian citizens and permanent residents), 308 (34.9%) were born outside Australia or New Zealand. Of these, 210 (23.8% of the total) were born in Asia. (No further breakdown was provided for the Indian sub-continent.) Although the figures relate to the 1994 year, there is no reason to think the position was markedly different for earlier years.

49. It is arguable that a distinction drawn between persons of Australian and New Zealand origin and those who are not of Australian or New Zealand origin is a distinction "based on national origin" for the purposes of s.9(1) of the RD Act. But the requirements imposed by the AMC upon applicants seeking registration were not expressed by reference to whether candidates were or were not of Australian or New Zealand origin. Nor did the AMC apply criteria that would support a finding that the "true basis" for requiring certain candidates to undertake an examination was the fact that they were not of Australian or New Zealand national origin. It is true that during the period October 1992 to April 1994 only 15 of the 1,431 candidates sitting for the three AMC examinations were recorded as having been born in Australia. (The evidence did not reveal the numbers born in New Zealand.) But the figures already cited show that Australian medical students are of disparate national origin and are certainly not confined to persons of Australian or New Zealand origin.

50. For these reasons, in my opinion, there was no error in the way the Commission approached this issue. There is therefore no basis for interfering with its conclusion that the AMC, by requiring OTDs to sit for an examination in order to gain full registration, did not apply a distinction based on national origin.

51. Dr Siddiqui's second argument was that the AMC, by limiting the number of OTDs who could proceed to the clinical examination, contravened s.9(1) of the RD Act. This was said to be the case because no similar quota was imposed on graduates of Australian or New Zealand medical schools. The quota was directed at medical graduates who were trained overseas and was based on the fact that the graduates "originated from overseas". Accordingly, so it was said, the imposition of the quota was based on national origin.

52. The Commission did not find it necessary to address this argument, since it found for Dr Siddiqui on other grounds. Nonetheless, it was pressed by Dr Scutt as an independent ground for finding in favour of Dr Siddiqui.

53. I think it correct to say that the AMC imposed the "quota", since it was not bound to act in conformity with the request made by the Australian Health Minister's Conference, but it chose to do so. However, in my view, it would not have been open to the Commission to conclude that the imposition of the quota upon OTDs involved a distinction based on national origin.

54. If the examination requirement did not contravene s.9(1) of the RD Act, it is difficult to see how the imposition of a quota on examination candidates, where the quota is determined by reference to performance in the examination, can be said to breach s.9(1). The criterion for gaining entry into the quota (that is, achieving a result placing the candidate within the top 200 of those sitting for the examination in any one year) was not expressed in a manner which referred to the national origin of candidates. Nor, for that matter, did the criterion refer to the other grounds specified in s.9(1) of the RD Act.

55. Nor, for the reasons I have given, can it be said that the "true basis" for selection in the quota was national origin (or race, colour, descent or ethnic origin). The quota, both in form and substance, selected candidates by reference to the medical schools from which they graduated and their performance in a competitive examination. The distinction drawn between OTDs, who had to gain entry into the quota in order to be admitted to registration, and graduates of accredited medical schools was not based on national origin.

56. It is relevant to add that, although no quota was applied to graduates of accredited medical schools seeking registration as medical practitioners, extremely stringent quotas were imposed on candidates seeking entry into Australian medical schools.

57. By virtue of s.9(1A)(a) of the RD Act (unlike ss.7B and 7C of the SD Act, as amended in 1995), the onus is on the complainant to demonstrate that the alleged discriminator has required the complainant to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case. I agree with the conclusion reached by Heerey J that the Commission was not in error in determining that Dr Siddiqui had failed to discharge that burden in relation to the imposition of the quota. I also agree that the Commission was in error in finding that the application of the quota to Dr Siddiqui was not reasonable in the circumstances of the case. I agree with his Honour's reasons for reaching these conclusions.

58. In view of my agreement with Heerey J on this issue, it is not strictly necessary to deal with the Commission's findings on the other paragraphs of s.9(1A). However, I shall briefly make some observations on the construction of s.9(1A)(b) and s.9(1A)(c).

Section 9(1A)(b) of the RD Act - Does Not or Cannot Comply

59. Section 9(1A)(b) requires a complainant seeking to invoke the provisions of s.9(1A) in a case of alleged indirect discrimination to show that the person required to comply with the relevant term, condition or requirement "does not or cannot comply with the term". In the present case it is necessary to apply these words in a situation where Dr Siddiqui, at the time he sat the written examination, was required to rank in the first 200 candidates, in order to proceed to the clinical examination. The use of the present tense in s.9(1A)(b) suggests that the critical question in the present circumstances is whether, at the time Dr Siddiqui was required to comply with the condition, he did not or could not comply with it.

60. If the words of s.9(1A)(b) are read in their ordinary sense Dr Siddiqui satisfies them. The simple fact is that he did not comply with the relevant condition at the time he was required to satisfy it. This was regarded by the Commission as sufficient to show that s.9(1A)(b) was satisfied. The Commission's approach was consistent with that taken by Bowen CJ and Gummow J in Foreign Affairs v Styles, at 254-265, although their Honours did not have occasion in that case to consider the question of construction at any length.

61. It was submitted that the phrase "does not comply" refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words in s.9(1A)(b) should be given a restrictive gloss. As a matter of ordinary English, the words "cannot comply", which also appear in s.9(1A)(b), are apt to apply to a case of inherent inability to comply with a condition.

62. More particularly, a restrictive construction runs counter to the fundamental objective s.9(1A) seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.

63. It seems to me that the primary purpose underlying s.9(1A)(b) is to ensure that the complainant (or someone on whose behalf a complainant acts) has sustained some disadvantage by reason of the condition or requirement under scrutiny. That purpose is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause. Certainly it should not be enough to exclude the operation of s.9(1A) that a complainant might ultimately be able to comply with a condition or requirement which discriminates against members of the group to which the complainant belongs.

64. I do not think it necessary in the present case to attempt a definition of the phrase "cannot comply", as employed in s.9(1A)(b), beyond indicating that it is apt to include at least a case of inherent inability to comply with a condition or requirement. It is worthwhile noting, however, that the phrase "can comply" has been construed by the House of Lords, in a case involving a rule preventing a Sikh student wearing a turban at school: Mandla v Dowell Lee [1982] UKHL 7; (1983) 2 AC 548. Lord Fraser, with whom Lords Edmund-Davies, Roskill and Brandon agreed, interpreted (at 565-566) the phrase to mean "can in practice" or "can consistently with the customs and cultural conditions of the racial group". In my view, the principal significance of the case for present purposes is that it shows the importance of construing statutory language in accordance with the fundamental objectives of the legislation.

65. It follows, in my opinion, that the Commission did not err in concluding that, on the evidence, Dr Siddiqui satisfied s.9(1A)(b) of the RD Act.

Section 9(1A)(c) of the RD Act - Exercise of a right on an Equal Footing

66. As Heerey J has noted, s.9(1A)(c) of the RD Act speaks, as does s.9(1), of the enjoyment or exercise "on an equal footing" of any human right or fundamental freedom. It does so in the context of a sub-section which deems certain acts requiring a person to comply with a term, condition or requirement to be acts involving a distinction based on the person's race, colour, descent or national or ethnic origin. Plainly s.9(1A)(c), by the use of the phrase "on an equal footing", contemplates a comparison of some kind. The comparison must involve the group to which the complainant belongs. That group, depending on the circumstances, must be defined by reference to race, colour, descent or national or ethnic origin. The question is with what other group must the comparison be made.

67. It must be said that the wording of s.9(1A) gives no clear indication as to the nature of the comparison that must be undertaken. The language used is elliptical, reflecting the terms of the Convention from which s.9(1A)(c) is (at least in part) derived. Given the obscurity of the language, I do not think that s.9(1A)(c) compels a conclusion that the comparison to be made is between two (or more) groups, each of which is subject to the same term, condition or requirement. Nor do I think that the decision of the High Court in Banovic provides support for such a conclusion in relation to s.9(1A)(c).

68. Banovic was concerned with s.24(3) of the Anti-Discrimination Act 1977 (NSW). That sub-section (as it then stood) was in the following terms:

"A person discriminates against another person on the ground

of his sex if he requires the other person to comply with a

requirement or condition -

(a) with which a substantially higher proportion of persons of

the opposite sex to the sex of the other person comply or are

able to comply;

(b) which is not reasonable having regard to the circumstances

of the case; and

(c) with which the other person does not or is not able to

comply."

69. Section 24(3) specifically obliged the decision-maker to ascertain, in a case of alleged discrimination against a female on the ground of her sex, whether the alleged discriminator required her to comply with a condition with which a substantially higher proportion of males comply or are able to comply. In other words, s.24(3)(a) specifically compelled an analysis of whether a higher proportion of males than females complied or could comply with the relevant condition. Since the world is divided into only two sexes, this legislative approach is understandable in relation to discrimination on the ground of sex, although it appears to have been abandoned by the 1995 amendments to the SD Act. Of course, as Banovic itself demonstrates, very difficult questions may arise in ascertaining the base groups, by reference to which the statutory comparison must be made. But this does not alter the nature of the inquiry required by the legislation. Nor does it alter the fact that the language of s.24(3) of the Anti-Discrimination Act is very different from that of s.9(1A)(c) of the RD Act.

70. In my opinion, the language used in s.9(1A)(c) is satisfied if the effect of a requirement to comply with a particular condition is to impair the exercise of a human right by persons of the same group as the complainant, on an equal footing with members of other groups, regardless of whether or not those other groups are required to comply with the same condition. Of course, the usual case of alleged discrimination involves the disparate impact of a particular requirement or condition upon two or more groups, each of which is identified by reference to race, colour, descent or national or ethnic origin. But there may well be cases in which members of a group are impaired in the exercise of a human right precisely because they must comply with a condition to which members of other groups are not subject.

71. The broader interpretation of s.9(1A)(c) seems to me to be justified by a number of considerations:

. The preamble to the RD Act makes it clear that the object

of the Act is to give effect to the Convention. Section

9(1A)(c) adopts the very language used in art.1(1) of the

Convention.

. The Convention identifies its objectives in broad language.

The preamble to the Convention emphasises that the objective is

"to adopt all necessary measures for speedily eliminating racial

discrimination in all its forms and manifestations". Article 2

of the Convention, in particular, seeks to advance this

objective by imposing sweeping obligations to eliminate racial

discrimination.

. If it is correct that s.9(1) of the RD Act is confined to

direct discrimination, it is necessary to rely on s.9(1A) in

order to eliminate indirect racial discrimination. Given the

limitless variety of forms that indirect discrimination can

take, great care should be exercised before introducing a

limitation on the scope of the sub-section that does not clearly

flow from the language used by Parliament.

72. In the present case, the Commission found that the imposition of the quota impaired the enjoyment of the right to work of OTDs, on an equal footing with graduates of accredited medical schools. The Commission said this:

"we find that the discriminatory conduct that is targeted by

s.9(1A) of the Act is established by comparison of the treatment

of graduates of accredited medical schools, they being

predominantly of Australian and New Zealand origin, with all

those OTDs who have been required to pass the AMC examination

and meet the quota requirement, they being overwhelmingly of a

national origin other than either of those two countries."

73. I do not think that the Commission fell into error simply by comparing OTDs with graduates of accredited medical schools. It may be accepted that the members of these two groups were not required to comply with the same "term, condition or requirement". Nonetheless, for the reasons I have given, I do not think that s.9(1A)(c) limited the comparison to the impact of the examination and quota requirements to disparate groups (defined by race, colour, descent or national or ethnic origin) of OTDs.

74. This does not mean, however, that the Commission was necessarily correct in concluding that the examination and quota requirements had the effect of nullifying or impairing the enjoyment or exercise, on an equal footing, by persons of the same national origin as the complainant of any human right. The Commission briefly addressed this issue and concluded that the proscribed effect had occurred, because most graduates of accredited schools are of Australian and New Zealand origin, while the overwhelming proportion of OTDs are not.

75. It must be remembered that s.9(1A)(c) directs attention to the effect of the examination and quota requirements on the enjoyment of rights by persons (relevantly) of the same national origin as Dr Siddiqui. The issue in the present case is therefore whether the effect of the AMC obliging OTDs to comply with the examination and quota requirements was to nullify or impair the exercise, by persons (like Dr Siddiqui) of Indian national origin, on an equal footing with other groups.

76. Although it is not necessary to express a final view on this question, I am inclined to the view that the examination and quota requirements did not have the proscribed effect. Persons of Indian origin are of course eligible to apply to accredited medical schools in Australia and New Zealand. In 1994, according to the evidence, some 72,500 people of Indian birth were recorded as resident in Australia (O.41% of the total population). The evidence did not disclose the proportion of students of Indian origin enrolled in or graduating from Australian medical schools (although, as I have noted, in 1994, of 885 first year students for whom information was available 210 were born in Asia). But there is nothing to suggest that a person of Indian origin faces any disability in gaining entry to an accredited medical school, compared with persons within the Australian community of different national origin. Nor is there evidence that persons of Indian origin are under-represented in accredited medical schools, whether in comparison with their representation in the population at large, or in the population from which students at accredited medical schools are drawn. Thus, so far as the evidence goes, persons of Indian origin within the Australian community have precisely the same opportunity to graduate from accredited medical schools as persons of Australian (or New Zealand) origin. Persons of Indian origin who have not graduated from accredited medical schools must comply with precisely the same requirements as persons of Australian or New Zealand origin who have not graduated from those medical schools.

77. Of course, only a relatively small proportion of the Australian population is of Indian origin. That reflects, in large measure, the fact that the bulk of the Australian population is always likely to consist primarily of persons of Australian origin. It also reflects patterns of migration not relevant to the present proceedings. The small proportion of persons of Indian origin at accredited medical schools has nothing to do with distinctions based on national origin. Rather, it reflects the simple fact that Australian medical schools, like virtually all State-funded Universities throughout the world, primarily serve the resident population of the countries in which they are located.

78. I should add that there is nothing to suggest that persons of Indian origin are disadvantaged by the examination and quota requirements, when compared with other groups subject to the same requirements. As Heerey J has pointed out, no attempt was made to make out a case that persons of Indian origin performed more poorly than other groups of OTDs required to undertake the AMC examination. Indeed, material prepared by Dr Scutt, based on AMC data, showed that no such case could be made out. In the three examinations conducted over the period October 1992 to April 1994, 182 of those attempting the examinations (12.7%) were Indian by birth. Of those, 53 made it into the quota of 404 for that period (13.1% of the total admitted to the quota.)

79. In the result, I agree with the orders proposed by Heerey J.