Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618

Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618 - FCA 1996 case summary — Zoe

[43]

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.

[86]

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.

[95]

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.

At a glance

Court

Decision date

Source

Judgment (246 paragraphs)

Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618 (17 July 1996)

Parties

Legislation Cited (18)

Cases Cited (10)