Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065

Under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic):

1. The claims made under the Equal Opportunity Act 2010 (Vic) are dismissed.

1. The claims made under the Charter of Human Rights and Responsibilities Act 2006 (Vic) are struck out with a right to apply for reinstatement before 31 December 2016. Any such application for reinstatement must be accompanied

1. Since 1991, Dr Rosemarie Rein has been seeking registration as a nurse in Victoria. Her applications have been refused many times, broadly speaking, on the basis that the relevant registration body considered she had a significant mental illness which meant she was not suitable for registration.
2. Dr Rein does not and has never agreed with the range of diagnoses made over the years. She says she is and always has been well and is a more than competent nurse, capable of undertaking the responsibilities associated with registration. Further, she says she is entitled to sell her labour in her chosen profession to support herself. In addition to holding nursing qualifications, Dr Rein has completed a law degree and degrees in psychology.
3. On 18 November 2015, Dr Rein made an application to the Tribunal under the Equal Opportunity Act 2010 (Vic) (EO Act). Dr Rein made a further application to the Tribunal on 18 February 2016. As the two applications were substantially the same, they were dealt with together.
4. In her EO Act applications, Dr Rein made reference to her past applications for registration, their refusal by the predecessors to the Nursing and Midwifery Board of Australia (Board) and other matters relevant to her dealings with various medical professionals and institutions. As clarified at a hearing on 5 May 2016, her current claim was that she had been unlawfully discriminated against in relation to her 2015 application to the Board for registration as a nurse on the basis of a disability. While the Board is responsible for making registration decisions, the Australian Health Practitioner Regulation Agency (AHPRA) provides administrative and other services to the Board. In this case the communications in respect of Dr Rein's registration application have been between her and AHPRA.
5. At the hearing before me on 5 May 2016, it became apparent that the Board had not then made a final decision about Dr Rein's application for registration. The hearing was adjourned to allow the registration decision to be finalised and for the respondents to make an application for summary dismissal.
6. A decision refusing registration was made after the hearing and I was informed that Dr Rein has applied for it to be reviewed on the merits under powers given to the Tribunal under the Health Practitioner National Law (Victoria) Act 2009 (Vic) (National Law) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). That application will be heard and determined in the Tribunal's Review and Regulation List. The merits of the registration decision were not before me in this proceeding.
7. Dr Rein complained that the most recent registration decision was discriminatory because the decision amounted to unfavourable treatment of her by the Board because of a disability the Board presumes she has. That is a claim of direct discrimination contrary to section 36 of the EO Act which prohibits qualifying bodies, such as the Board, from discriminating against applicants who seek authorisation or qualification which allows them to practice a profession.[1] Dr Rein also complained about the Board requiring her to attend a medical examination and contended that was an act of indirect discrimination contrary to section 9 of the EO Act. Indirect discrimination arises where what appears to be a neutral requirement, condition or practice is imposed on persons with a particular attribute. In cases of indirect discrimination, when that requirement, condition or practice is imposed, it is likely that those persons will be disadvantaged. [2] The provision recognises that treating all people the same, regardless of difference, may unfairly disadvantage some people or groups of people.
8. The respondents have applied for an order summarily dismissing the proceeding under section 75 of the VCAT Act. That application is made on the basis that section 75 of the EO Act applies such that, even if the respondents engaged in unlawful discrimination contrary to the EO Act, provisions of the National Law necessitate or authorise the discrimination.
9. Dr Rein contends that the respondents' reading of section 75 of the EO Act is unduly wide and that the proper application of the Charter of Human Rights and Responsibilities Act 1996 (Vic) (Charter) means the proceeding should not be dismissed.
10. I have decided that the application made under the EO Act must be dismissed. I have decided to strike out Dr Rein's application under the Charter with a right to apply for reinstatement after the Review and Regulation List proceeding has been heard and determined.

1. As stated above, the respondents seek an order summarily dismissing the proceeding under section 75 of the VCAT Act. Section 75 provides that, at any time, the Tribunal may dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (section 75(1)(a)), or is otherwise an abuse of process (section 75(1)(b)).
2. There have been many cases about section 75 and the law about how to approach the section is clear.[3] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
3. On 5 May 2016, I made an order that the respondents' application for summary dismissal ought to be made on the basis that Dr Rein's case would be taken at its highest and proceed on the assumption that the respondents had engaged in prohibited discrimination contrary to the EO Act.

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of:

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

(3) Sections 50(3) and 63(1) prevail over this section to the extent of any inconsistency between them.

1. Section 13(1) of the EO Act provides that discrimination is not prohibited if a general exception, such as section 75, applies. Section 13(2) says that such an exception is a defence to discrimination, and the person seeking to rely on the exception has the burden of proving that it applies.
2. So, if I am satisfied that section 75 of the EO Act applies to the relevant provisions in the National Law, even if the conduct in issue falls within the definitions of discrimination in the EO Act, the conduct would not be unlawful.

1. Dr Rein correctly contended that, when interpreting section 75, a court or tribunal is required to do so consistent with section 32 of the Charter - that is to, so far as it is possible to do so consistently with their purpose, interpret the relevant provisions in a way that is compatible with human rights.
2. Relevant here, that task requires that particular regard be given to the section 8 Charter right which provides that every person is equal before the law and entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. Further the section 13 right not to have one's privacy unlawfully or arbitrarily interfered with is relevant given the Board sought personal medical information from and about Dr Rein.
3. Dr Rein referred me to a number of decisions regarding the interaction between discrimination law and the Charter or its equivalents in Victoria and elsewhere.[4] I have considered each of those.
4. Mr Cadman for the respondents contended that, when the provisions of the National Law are read alongside section 75 of the EO Act, no ambiguity arises and so section 32 of the Charter is not required to resolve the proper interpretation of section 75.
5. The President of the Tribunal recently discussed the authorities on the Charter interpretation question in Kuyken v Chief Commissioner of Police.[5] He summarised the proper approach as follows:

(1) s 32(1) does not permit the adoption of an interpretation that is contrary to the intention of the Parliament when it enacted the legislation;

(2) s 32(1) does not create a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and from the intention of Parliament when enacting the statute;

(3) a statute is constructed against the background of human rights and freedoms set out in the Charter in the same way that the principle of legality is applied;

(4) if the words of a statute are capable of more than one meaning, the court should give them whichever of the meanings best accords with the human rights in question; and

(5) it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and the apparent purpose of the enactment (citations omitted).

1. I respectfully adopt the same approach. I will now turn to section 75 of the EO Act and the relevant provisions of the National Law.

1. Section 75 states that it does not require the other statutory provision in issue to expressly authorise discrimination. The question is usually whether the relevant statutory provision necessitates or authorises the conduct which would otherwise be discriminatory.
2. Judge Ginnane (as he then was) considered the scope of section 75 of the EO Act against the backdrop of the Charter in Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development.[6]
3. His Honour said:

As previously noted, equal opportunity and discrimination legislation are beneficial legislation. Construing exceptions, or exemptions contained in them narrowly, may promote their purpose. However, that is not always the case. The purpose of exceptions in such legislation varies. They may have been included to provide the practical balance between competing public interests. They may, for instance, except conduct from the prohibitions contained in the legislation, in order to protect other important human rights that the equal opportunity, or discrimination legislation does not address or protect. In such circumstances, it would not be appropriate to read the exceptions narrowly rather both the principal enactment and the exception to it, should, in those circumstances, be given their ordinary meanings.

The statutory authority exceptions in the Equal Opportunity Acts serve a different purpose than the exceptions I have discussed in the previous paragraph. They reflect the power of Parliament to legislate so as to authorise conduct that is discriminatory. However, the common law principles of statutory interpretation require a clear expression of intent to interfere with human rights. Section 32(1) of the Charter adds to the strength of that common law principle.

The word "authorise" means to give authority or legal power to; to empower (to do something); to give authority for; formally sanction an act or proceeding.

The Tribunal, and its predecessors, have consistently adopted the interpretation of the statutory authority exception described in Wojcik v Roads Corporation, i.e. that the conduct is excepted if required, or permitted expressly, or by necessary implication by a statute.

The ordinary meaning of the statutory authority exception in the Equal Opportunity Acts extends to conduct permitted by an Act. Section 32(1) of the Charter, which is applicable to conduct after 1 January 2008, does not require that that ordinary meaning be departed from. Conduct expressly permitted by a statute is within the ordinary meaning of the exception. The express permission of conduct must also include within the permission, conduct necessary to enable the permitted conduct to occur.[7]

1. I respectfully adopt this approach to the interpretation of section 75 of the EO Act.
2. I am satisfied that, section 75, properly interpreted consistently with the Charter, demonstrates an intention on the part of Parliament to make lawful conduct which might otherwise be discriminatory under the EO Act. The task is to consider the relevant provisions of the other Act and whether they demonstrate that the conduct in issue is made necessary or authorised by those provisions.

1. The Board relied in part on section 55 when it refused Dr Rein's application for registration. Section 55 says relevantly:

(1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if -

(a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or

1. The Board relied on section 80 of the National Law when it required Dr Rein to attend a medical assessment. Section 80 says relevantly:
   • (1) Before deciding an application for registration, a National Board may -

(e) by written notice given to the applicant, require the applicant to undergo a health assessment, within a reasonable time stated in the notice and at a reasonable place.

1. The respondents contended that the National Law is an Act captured by section 75(1)(a) of the EO Act. I accept that is correct. The respondents further contended that sections 55 and 80 specifically authorised its conduct when it assessed and decided on Dr Rein's application for registration. Accordingly, they said that section 75 of the EO Act applies to permit discrimination.
2. As set out earlier, I have proceeded on the assumption that, when her application for registration was refused by the Board, Dr Rein was treated unfavourably because of a 'disability'. The definition of that term in the EO Act includes a mental or psychological disease or disorder.[8] I have also assumed that requiring her to attend a medical examination was either direct or indirect discrimination on the basis of a disability.
3. Section 55 of the National Law expressly allows a body such as the Board to decide that a person is not suitable for registration based on its assessment of how the person's impairment would affect the person's capacity to practice safely. The term 'impairment' in relation to a person who has applied for registration is defined to mean the person has a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to affect the person's capacity to practice the profession.[9] Arguably the meaning of the term 'impairment' is not as wide as the term 'disability' in the EO Act given the requirement that the impairment, disability, condition or disorder must or must be likely to affect the person's capacity to practice.
4. I am satisfied that section 55 of the National Law authorises the Board to engage in what might otherwise be discrimination because it expressly allows the Board to decide to refuse registration where the Board is of the opinion that:
   • The relevant impairment, disability, condition or disorder is one which would affect the person's capacity to practice; and
   • The person's capacity is affected by the impairment, disability, condition or disorder to the extent that the safety of the public would or may be placed at risk.
5. I am satisfied that, if a Board reached the opinions set out above about a person, that would be unfavourable treatment or potentially unfavourable treatment of the kind the EO Act addresses. Given the opinions and consequent decision about the person turn on a matter which would fall within the EO Act definition of 'disability', I am satisfied that section 55 grants to the Board a discretion to engage in conduct which would or could breach the EO Act prohibition contained in section 36. On the plain words of the section, the Board is authorised to act in a discriminatory manner.
6. As discussed by Judge Ginnane, conduct expressly permitted by a statute is within the ordinary meaning of the words of section 75 of the EO Act. While I acknowledge such conduct might infringe on the section 8 Charter right, that does not allow me to interpret section 75 in a restrictive manner or in a way which would create an exception to its broad application.
7. Dr Rein contended that, given section 75(3) made express reference to certain provisions taking precedence over section 75(1), other exceptions must be available. I consider that, had Parliament intended that section 75 not apply to section 36 of the EO Act, it could readily have addressed that expressly. Neither the plain words of the section or the Charter allow me to infer such a further exception applies.
8. Given the express words of section 75 of the EO Act and those contained in section 55(1)(a) of the National Law, section 32 of the Charter does not require me to read down either provision or change their plain meaning. There is no ambiguity to be resolved by the Charter. The conduct in issue, while arguably discriminatory, is clearly authorised by the National Law.
9. On its face, section 80 of the National Law empowers the Board to act in a manner which might breach section 36 of the EO Act. That is because requiring a person to attend a health assessment may be unfavourable treatment which gives rise to a claim of direct discrimination. It may also amount to indirect discrimination because the imposition of that requirement has or is likely to have the effect of disadvantaging persons with a disability.
10. However, for the same reasons as set out above, I am satisfied that the specific conduct is expressly authorised by the National Law even though it might amount to prohibited discrimination. As for the section 13 Charter right, given the express words of section 80 and its place in the registration context, it is difficult to see how imposing a requirement to attend a health assessment would be either unlawful or arbitrary. The Charter does not empower me to interpret section 80 differently where the words of the provision are so clear and unambiguous.
11. For these reasons I am satisfied that the acts of discrimination about which Dr Rein complains fall within the general exception contained in section 75 of the EO Act. The consequence is that the conduct in issue is not prohibited by the EO Act and so no adverse finding may be made against the respondents.

1. As I read the submission Dr Rein handed up at the hearing, she asked the Tribunal to consider her claims under both the EO Act and the Charter. I have assumed that her Charter based claim is that, by engaging in the conduct in issue, the respondents breached her section 8 Charter rights.
2. Dr Rein had not made this plain in her applications to the Tribunal and so the respondents had not had an opportunity to consider the position in any detail. The following discussion proceeds with that understanding.
3. It is convenient to set out section 8 in full:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

1. Section 38 of the Charter says, relevantly, that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. For the purposes of this discussion, I will proceed on the basis that the respondents fall within the meaning of public authorities and so are bound by the Charter.
2. Claims under the Charter may be brought where they fall within section 39(1). It says:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

1. As a consequence of Bell J's decision in Goode v Common Equity Housing,[10] it is clear that, in respect of an act or decision of a public authority, where an applicant may seek relief or remedy for unlawfulness under one Act (such as the EO Act), then a claim for relief or remedy for unlawfulness may also be made under the Charter.
2. The Charter defines discrimination to mean 'discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act.'
3. It is arguable that, if section 75 of the EO Act applies, a claim based on section 8 cannot be brought because there is no discrimination. That argument depends on a finding that the definition of 'discrimination' includes the exceptions and specifically section 75.
4. An alternative position is that, given the definition of discrimination makes no reference to section 75 or any other exceptions, it ought not to be read down. That would mean Ms Rein's claim of a breach of the section 8 Charter right could proceed because, if section 75 did not apply, it might be contended that the Board's decisions interfered with the enjoyment of her human rights without discrimination or mean that she did not have equal and effective protection against discrimination.
5. These competing readings of the section 8 Charter right were the subject of submissions before the Supreme Court in Kuyken, however, his Honour Justice Garde did not decide which reading was correct.[11] The parties did not have the opportunity to make submissions on the question here.
6. I will leave that dispute to one side for now and proceed on an assumption that a claim may arise under section 8 of the Charter.
7. Section 7 of the Charter provides that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account certain matters. They include:
   • The nature of the right;
   • The importance of the purpose of the limitation;
   • The nature and extent of the limitation;
   • The relationship between the limitation and its purpose and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
8. It is plain from section 7 that Charter rights are not absolute. They may be made subject to reasonable limits provided that those limits may be justified on the bases set out above.
9. For the reasons set out earlier in the context of the application of section 75 of the EO Act to sections 55 and 80 of the National Law, the exercise of the Board's powers under those provisions may be able to be justified when one takes into account the express powers granted to the Board in respect of the assessment of registration applications and the power to require attendance at medical examinations. The right to be free from discrimination does not equate to a right to registration. Where the Board is required to determine whether a person ought to be registered taking into account public safety, it might be justified to give proper consideration to whether any disability or impairment might affect the applicant's capacity to practice safely.
10. Of course, the manner in which that assessment is made by the Board in an individual case may give rise to a question about whether there has been a breach of the section 8 Charter right. In particular, there may be a question about whether there was any less restrictive means reasonably available to achieve the purpose of protecting the safety of patients in an individual case. That could only be determined by examining in detail the circumstances leading to the registration refusal decision.
11. The Review and Regulation proceeding will include a consideration of the material available to the Board at the time it made its decision and any further material. The Tribunal will then make a fresh decision.
12. At present, it seems to me most appropriate that proceeding be heard and determined, particularly given that what Dr Rein seeks most is registration. That is because the Tribunal's decision may be different to that which was made by the Board. Also, whatever the outcome of the proceeding, findings of fact may be made as to matters which may bear on the question of the availability of less restrictive means.
13. I consider it appropriate to strike out the part of the claim which concerns the Charter based claims to allow the Review and Regulation proceeding to be completed. If Dr Rein wishes to seek reinstatement of that part of this proceeding only, she may make an application with a supporting affidavit and other material. Any such application would then be listed for hearing. I will allow until the end of this year for any such application to be made on the basis that the Review and Regulation proceeding ought to be completed by then. If further time is required, the parties could seek consent orders to ensure that proceeding has been completed and Dr Rein has time to consider her position.

1. Given my decision that section 75 of the EO Act applies to the conduct in issue when taken at its highest and assuming the alleged discriminatory conduct could be proven, the respondents have a complete defence to Dr Rein's claim. The consequence is that the claims under the EO Act are misconceived and lacking in substance in the sense referred to in section 75(1)(a) of the VCAT Act. Accordingly, I will make an order dismissing that part of the proceeding.
2. As set out above, I will strike out the Charter based claims with a right to apply for reinstatement before 31 December 2016. Any such application would be listed for hearing.

1. Dr Rein expressed significant concerns about her treatment by the Board and its predecessors over many years. She raised concerns about the manner in which a hearing about her recent application for registration was conducted. As discussed at the hearings on 5 May 2015 and 15 June 2016, the correctness or otherwise of the Board's most recent decisions was not a matter for me to decide.
2. Dr Rein sought referral of the Charter interpretation question to the Supreme Court. Section 33 of the Charter provides that a referral may be made to the Supreme Court if, in a proceeding, a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. A referral may be made if a party has applied for referral and the court or tribunal considers the question is appropriate for determination by the Supreme Court. Given the findings I have made as to the interpretation of section 75 of the EO Act and sections 55 and 80 of the National Law and their application here, such a referral is not necessary or appropriate. The Charter questions I have left open are not suitable for referral.

[1] Discrimination may include an attribute the person is presumed to have - see section 7(1)(d). See section 8 of the EO Act in respect of direct discrimination and the definitions of 'qualifying body' and 'occupational qualification' in section 4. There was no dispute that the Board is bound by section 36 of the EO Act.

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

[3] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074; Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683.

[4] Momcilovic v The Queen [2011] HCA 34; R v Fearnside [2009] ACTCA 3; Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48; Allatt & ACT Government Health Directorate [2012] ACAT 67; Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547; Kracke v Mental Health Review Board & Ors [2009] VCAT 646.

[5] [2015] VSC 204 at paragraphs 75 to 78.

[6] [2012] VCAT 1547.

[7] At paragraphs 539 to 543 - citations omitted.

[9] See definition in section 5 of the National Law.

[10] [2014] VSC 585 at paragraph 39.