1. At the hearing it was agreed between the parties and the Tribunal, that the Tribunal would give an interim decision as to whether the case involved direct or indirect discrimination under the Act, but that the Tribunal would not consider the reasonableness of any discrimination until further submissions were made by the parties.

1. Australian health practitioners are regulated by a national scheme established by the Health Practitioner Regulation National Law 2009 (QLD). This law is applied in the ACT by section 6 of the Health Practitioner Regulation National Law 2010 (ACT).
2. The National Law establishes the Australian Health Practitioner Regulation Agency (AHPRA). AHPRA consists of several boards including the Medical Board of Australia (MBA), which is responsible for, among other things, registration of medical practitioners.
3. The AMC is responsible for developing accreditation standards and policies, and for the assessment of international medical graduates for general or specialist registration.
4. Graduates from Australia and New Zealand must obtain provisional registration and complete 12 months supervised training before becoming eligible for unconditional registration.
5. In order to work as health practitioners in Australia, international medical graduates (IMGs) must have their qualifications formally recognised and be registered by the MBA.
6. There are three pathways by which IMGs can become registered: the Competent Authority pathway, the standard pathway and the specialist pathway. The Applicant is only eligible for the 'standard pathway': his qualifications are from an institution listed in the International Medical Education Directory, but not from a Competent Authority in Canada, Ireland, New Zealand, the UK, or the US, and he applied for general (not specialist) registration.
7. To complete the standard pathway, IMGs must be certified as having passed theoretical and clinical exams set by the AMC, secure provisional registration and an offer of suitable employment, and complete 47 weeks of supervised practice (an internship).
8. The approaches and needs of medical systems vary between countries; graduate training is specifically tailored to the health system of the country in which the education is given. The requirements imposed upon IMGs are designed to ensure that they have the knowledge and practical experience of the Australian system needed to safely practice in Australia.
9. Responsibility for training medical practitioners in Australia is shared between the Commonwealth and the States and Territories. The Commonwealth funds university medical education, while the States and Territories fund internships in public hospitals.
10. In the first decade of this century there was a dearth of medical graduates and thus internships were readily available. Since additional funding and incentives were introduced in 2006, the number of medical graduates has dramatically increased. Since 2013 the number of graduates has exceeded the number of internships available.[1]
11. To address this situation, the States and Territories have reached a number of inter-governmental agreements on the availability of internships.
12. As a result of such an agreement, the Respondent implemented the priority system referred to above with the intention of preferring ANU graduates over graduates of other Australian universities and preferring Australian graduates over international graduates.
13. Professor Bowden for the Respondent gave evidence that the reason for distinguishing between Australian and international graduates in the provision of internships is that Australian graduates are specifically trained for the Australian medical system and represent the best return on investment by the Commonwealth and Territory governments, which fund medical students' education and internships.[2]
14. The Respondent also notes that the preferential treatment given to graduates of Australian universities is the product of consensus between State and Territory governments across Australia, and is not solely implemented by the Respondent. This point is not of itself persuasive; the mere fact that multiple entities (governmental or otherwise) engage in certain conduct does not preclude that conduct being unlawful.
15. The category for IMGs was removed in the 2014 intake for positions commencing in 2015 so that international graduates are now entirely excluded from consideration.

Discrimination Act 1991 (ACT)**

1. The Act prohibits discrimination on the grounds of certain attributes including race (section 7(1)(h)). The Dictionary to the Act provides that 'race' includes 'colour, descent, ethnic and national origin and nationality' (emphasis added).
2. Under section 7(2) of the Act, a reference to an attribute in section 7(1) includes:
   • (a) a characteristic that people with that attribute generally have; and
   • (b) a characteristic that people with that attribute are generally presumed to have; and
   • (c) such an attribute that a person is presumed to have; and
   • (d) such an attribute that the person had in the past but no longer has.

1. Section 8 of the Act defines conduct that constitutes discrimination:
   1. What constitutes discrimination

(1) For this Act, a person discriminates _against another person if - _

(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or

(b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.

(2) Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.

_(3) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include - _

(a) the nature and extent of the resultant disadvantage; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.

1. The form of discrimination referred to in section 8(1)(a) is usually referred to as 'direct discrimination' and the form of discrimination referred to in section 8(1)(b) is usually referred to as 'indirect discrimination'. The reasonableness defences set out in section 8(2) and (3) apply only to 'indirect discrimination'.
2. Discrimination is prohibited in the context of both education and employment.
3. Section 10(1) makes it unlawful for an employer to discriminate against a person:
   • (a) in the arrangements made for the purpose of deciding who should be offered employment; or
   • (b) in deciding who should be offered employment; or
   • (c) in the terms or conditions on which employment is offered.

1. Under section 18 it is unlawful for an educational authority to discriminate against a person -
   • (a) by failing to accept the person's application for admission as a student; or
   • (b) in the terms or conditions on which it is prepared to admit the person as a student.

1. The Dictionary of the Legislation Act 2001 defines 'fail' to include 'refuse'.
2. The Dictionary of the Act defines 'educational authority' to include 'a body or person administering an educational institution', which in turn is defined as 'a school, college, university or other institution at which education or training is provided.'
3. For present purposes the Canberra Hospital is taken to constitute an educational institution that provides training for postgraduate interns and at the same time is their employer. Both sections 10 and 18 apply in this case.

Human Rights Act 2004 (ACT)

1. The HRA aims to protect and promote human rights in the territory.
2. For the purposes of the HRA 'human rights' means the civil and political rights listed in Part 3 and the economic, social and cultural right to education in Part 3A (section 5 HRA).
3. Section 27A of Part 3A provides that everyone has the right to access to further education and vocational and continuing training, and to enjoy those rights without discrimination (section 27A (2), (3)(a) HRA).
4. In so far as it is possible, territory laws should be interpreted in a way that is compatible with human rights (section 30 HRA).
5. 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 (section 40B (1)(a), (b) HRA).
6. Section 40(1) HRA states that 'public authority' includes:
   • (a) an administrative unit;
   • (b) a territory authority;
   • (c) a territory instrumentality;

(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Health Practitioner Regulation National Law 2010 (ACT)

1. Health practitioners in the ACT are regulated by the Health Practitioner Regulation National Law 2010 (ACT). Eligibility for registration is dealt with by section 52:
   1. Eligibility for general registration

_(1) An individual is eligible for general registration in a health profession if - _

(a) the individual is qualified for general registration in the health profession; and

(i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or

(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and

(c) the individual is a suitable person to hold general registration in the health profession; and

(d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and

(e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.

(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.

1. Section 53 provides that an individual is qualified for general registration if:
   1. Qualifications for general registration

_An individual is qualified for general registration in a health profession if - _

(a) the individual holds an approved qualification for the health profession; or

(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or

(c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or

(i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and

(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.

1. Section 66 provides for limited registration for the purpose of undertaking postgraduate training or supervised practice. The period of limited registration is limited to 12 months and may not be renewed more than three times (section 72).
2. The Act also establishes the AHPRA (section 23) and a number of National Boards including the Medical Board of Australia (section 31(1)).
3. Accreditation standards for a health profession may be developed by an external accreditation entity for the health profession or an accreditation committee established by the National Board (section 46). A National Board may also accredit programs of study which meet approved accreditation standards (section 48).

1. The ACT Civil and Administrative Tribunal ('ACAT' or 'the Tribunal') is a statutory body with the powers and jurisdiction vested in it by legislation.
2. ACAT is authorised to hear and determine complaints referred to it by the Human Rights and Discrimination Commissioner, whose office is part of the ACT Human Rights Commission.
3. The Commissioner is empowered to refer complaints to ACAT by section 53A of the Human Rights Commission Act 2005 (ACT). The complainant must have instructed the Commissioner to do so, and the Commissioner must notify both parties of the referral.
4. The Commissioner referred this matter to the Tribunal pursuant to instructions from the Applicant. Both parties were notified of the referral. The Tribunal accordingly has jurisdiction to hear this matter.

1. The Applicant asserts both direct and indirect discrimination on the basis of his race, or more specifically, his nationality.

1. To establish direct discrimination under section 8(1)(a) of the Act, the Applicant must prove that he was (a) treated (b) unfavourably (c) in employment or education (d) because he had an attribute protected by the legislation.
2. The first three requirements are readily satisfied on the facts of this case and are not denied by the Respondent.
3. There is no doubt that by placing his application in Category 8 the Respondent acted or behaved towards the Applicant in some manner ('to treat'),[3] and that the result of that conduct was unfavourable to the Applicant.[4] In particular, the Applicant has been unable to gain employment as an intern or in a position equivalent to that he held in China, and as a result of this has suffered financially as well as suffering physically and mentally from stress.[5] The conduct occurred in the context of the Applicant seeking employment to further his education.
4. The test for discrimination is an objective one revolving around the question of why the aggrieved person was treated as they were.[6]

1. It is not necessary to prove an intention to discriminate on the part of the Respondent,[7] but the discriminatory action must be deliberate in the sense that 'the act which constitutes discrimination must be advertent and done with knowledge of the [attribute].'[8] In this case, the Respondent knew that the Applicant was an IMG. The Respondent deliberately placed the Applicant in Category 8 for this reason.
2. The Tribunal also notes that the determination of whether discrimination has occurred is not a comparative exercise between the treatment of the complainant and the treatment of others.[9] What is relevant is whether the particular treatment occurred because the complainant had a certain attribute.[10]
3. If that reason (i.e. the complainant having a protected attribute) played a causative role in the conduct, and was not a trivial or insubstantial factor behind it, the conduct will be unlawful under the Act [11]. However, the reason need not be the dominant or substantial reason for doing the act.[12]
4. On the face of the policy, the Respondent's priority list distinguishes between applicants on the basis of where they graduated from medical school.
5. The Applicant suggests that persons of foreign origin 'generally' attend medical schools in their home country. Placing IMGs in Category 8 amounts to racial discrimination as it accords them the least favourable treatment. This argument hinges on the following two points.
6. First, 'nationality', 'national origin' and 'ethnic origin' are components of 'race' as defined by the Act.
7. Second, the Applicant (relying on Gama v Qantas Airways Ltd [2006] FMCA 1767 at 306) argues that:
   • (i) the majority of Australian and New Zealand graduates would identify themselves as being of the same, or similar, ethnic or national origin [or nationality] as one another; and
   • (ii) the majority of IMGs would identify themselves as being of a different ethnic or national origin [or nationality] to Australian and New Zealand graduates.[13]

1. If persons of international origin were automatically placed in Category 8, the Applicant submits that there could be no denial that direct racial discrimination had occurred.
2. The Respondent draws a distinction between the national origin of a person and the location of the medical school from which they graduated. The Respondent points to the fact that each category in the priority list is open to graduates of all races and national origins. It is said that people of Australian and non-Australian ethnic ,or national origin, or nationality are categorised according to where they graduated.
3. The Respondent argues that while students are more likely to complete their primary and secondary education in their country of birth, globalisation and incentives for international study mean that many tertiary students obtain their qualifications (in whole or in part) from international institutions. This is reflected in reliance of Australian universities on fee-paying international students for a significant proportion of their revenue - a matter of common knowledge.
4. Further, the Respondent has given evidence that both Australian and full-fee paying students of international origin were guaranteed placements in 2013 if they fell within Category 1. Of the 96 applicants offered internships commencing in 2014, 85 were permanent residents and 11 were temporary residents.[14]
5. The Respondent submits that a distinction by reference to the place where a person was educated is not a distinction based on national origin or nationality.
6. The Respondent relied upon the decision of Siddiqui heard by the Human Rights and Equal Opportunity Commission (HREOC).[15] This case concerned a quota system imposed on 'over-seas trained doctors' under which they were all required to sit exams not required of domestic medical graduates and then only the top 200 were admitted each year. Mr Siddiqui was an Indian medical graduate. He complained that the quota system and exams were discriminatory based on race.
7. The Commission held that the quota system and exams were not an act based on 'national origin' as it was based on where the person had been trained and applied equally to Australian citizens who trained overseas. Imposing the requirement therefore did not amount to racial discrimination based on national origin.
8. The Tribunal notes that the HREOC, now the Australian Human Rights Commission is not a court and its decisions do not bind the Tribunal.
9. The difficulty the present Tribunal has with the Respondent's argument and the Siddiqui decision, is that it rises no higher than the proposition that IMGs are not necessarily prejudiced by the categories in the policy because they could elect to re-study under graduate or post graduate medicine at the ANU and thereby bringing themselves within Category 1. It must be remembered that the policy is dealing with medical graduates who, by definition have already completed their undergraduate education.
10. So much can be accepted, but the test in section 7(2) of the Act is not whether the policy in question 'necessarily' discriminates against a person on the basis of nationality; it whether the policy discriminates on the basis of 'a characteristic that people with that attribute generally have'.
11. Put another way, is it the case that graduates of a medical university of China (or other nation) are 'generally' of Chinese nationality (other nationality). The test is not whether a graduate of a Chinese university is 'necessarily' of Chinese nationality. It only has to be 'generally' the case.
12. In the view of the Tribunal, it is beyond trite and warrants no argument, that it is 'generally' the case that graduates of a Chinese medical school are 'generally' of Chinese nationality (and the same is also true of other nations).
13. When section 8 makes unlawful discrimination on the basis of nationality (in employment or education), it might be argued that the section is not intending to make unlawful discrimination on the basis of national origin per se. It might be argued that the intention is only to make unlawful, discrimination directed to single out a specific nationality.
14. It is clear enough that if a policy purported to discriminate in education or employment against people of a specific nationality, then section 8 would be breached i.e. a policy that people of X nationality are not welcome at this school, would be plainly offensive to section 8 and to the community generally. Thus it would not be open to the Respondent to explicitly include Chinese graduates in Category 8.
15. But the policy does not single out any particular nationality per se, and does not differentiate between any nationalities except to the extent that they are not of Australian nationality. Is this an unlawful act of direct discrimination for the purposes of section 8(1)(a) of the Act? The answer must still be, yes. A policy that said that only people of Australian nationality were welcome at this school or to apply for employment, would be offensive to section 8(1)(a) and to the community generally.
16. There may be reasons for the present state of this policy, but that is irrelevant to whether direct discrimination has occurred under section 8(1)(a). The legislature has ordained that such forms of discrimination are not to be tolerated in our society. It is not open to a Minister acting in an executive capacity, or to any public administrator to side step that law because they perceive parochial economic advantages in doing so.
17. On the basis of the above considerations, the Tribunal is satisfied that the Respondent's conduct constitutes unlawful discrimination under section 8(1)(a) of the Act.
18. The Tribunal notes the Respondent's reliance on Australian Medical Council v Wilson & Ors [1996] FCA 1618 which was determined under the Commonwealth Racial Discrimination Act 1975 (RDA). It is an earlier appeal in the Siddiqui matter.
19. The Human Rights Commission found the policy to be indirectly discriminatory and an appeal found its way to the Full Federal Court.
20. The RDA defined direct discrimination in section 9(1) RDA and indirect discrimination in section 9(1A) RDA.
21. The decision in Wilson is distinguishable on four grounds:

(a) the case on appeal to the Full Federal Court concerned only the Commission's findings of indirect discrimination; the Commission did not find direct discrimination and so this issue did not arise on appeal for the Full Court;

(b) the RDA contained no equivalent to section 7(2) of the Act that applies in the ACT to both direct and indirect discrimination;

(c) the RDA contains a comparative test that is not present in the Act;

(d) the case turned on the evidence that was before the Human Rights Commission on that occasion.

1. All members of the Full Federal Court concurred in the construction of the RDA that preserved a strict distinction between 'direct' (section 9(1)) and 'indirect discrimination (section 9(1A).
2. Black CJ concurred with the orders and terms of Heerey J and agreed generally with the reasons of Sackville J.
3. In relation to direct discrimination the only observation by Heerey J was at [73] that:

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.

1. Sackville J addressed the issue of direct discrimination at greater length. At [43] he said:

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...

1. Sackville J noted at [47] that the explicit basis for the quota and requirement for examination made no reference to nationality, but was framed by way of exclusion, namely all those who were not graduates of domestic universities were caught in the quota and required to undertake the examination.
2. Sackville J then adds the surprising statement:

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.

1. The statement is surprising firstly, because the Ministerial request for the imposition of the quota was in evidence and it explicitly said that the motive for the policy was to reduce the number of overseas trained doctors. His Honour says in paragraph [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.

1. It is self-evident that the sets of medical graduates trained in Australian or New Zealand on the one hand; or trained over seas on the other, spans the field of options. To impose a quota and examinations only on doctors trained overseas is exactly the same logic statement as exempting or preferring doctors trained in Australia or New Zealand.
2. Sackville J appears to take the view that unless the policy criteria explicitly mention national origin, as opposed to overseas 'trained', then no discrimination occurs:

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.

1. This is an important point, because it is the point of departure between the RDA and the Act. In the ACT, section 7(2) defines the attribute of nationality by reference to a characteristic that people of that nationality 'generally', but not 'necessarily' possess. Neither Sackville J, nor the other members of the Full Court, considered whether doctors trained 'over seas' would 'generally' (and not necessarily) have a different nationality. They did not consider this point because the equivalent of section 7(2) of the Act does not appear in the RDA.
2. The decision in Wilson is not binding in the present case. Quite apart from the significantly different statutory provisions in question, the Tribunal acknowledges that reasonable minds can differ on issues of statutory construction and factual evaluation, but confesses that it is most unconvinced by the logic Sackville J in that case.

1. To establish indirect discrimination pursuant to section 8(1)(b), 8(2) and 8(3) of the Act, the Applicant must prove that the Respondent imposed a condition or requirement upon the Applicant which unreasonably disadvantages people of his nationality.
2. While 'condition or requirement' is not defined by the Act, the High Court has held that:

'the words 'requirement or condition' should be construed broadly so as to cover any form of qualification or prerequisite... Nevertheless, it is necessary in each particular instance to formulate to actual requirement or condition with some precision.'[16]

1. The 'condition' imposed on medical graduates who wish to be given priority for an internship (and, as a practical matter, in order to be considered at all) is that they graduate from the ANU or another Australia medical school.
2. Disadvantage for the purpose of section 8(1)(b) occurs where treatment is unfavourable to the complainant's interests.[17] Comparison between the treatment of the Applicant and other medical graduates is not necessary to establish disadvantage, it is sufficient that the Applicant was disadvantaged by the condition.[18] In any event the comparative disadvantage with graduates of Australian universities is obvious.
3. The Respondent concedes that implementing the priority list favouring domestic graduates over persons with international qualifications imposed a condition or requirement upon the Applicant which had the effect of disadvantaging him.[19]
4. However, the Respondent denies that the Applicant's nationality was a causative factor preventing him from satisfying that condition.
5. The Applicant argues that even if the priority list does not overtly discriminate against persons of foreign nationalities, it has that effect in practice, and thus its application by the Respondent amounts to indirect racial discrimination.
6. Section 7(2) of the Act applies to indirect discrimination under section 8(1)(b) in the same manner that it applies to direct discrimination under section 8(1)(a) and hence, for the reasons given above, discrimination on the basis of graduating from any university in China does invoke or connote discrimination on the basis nationality.
7. The test in section 8(1)(b) is whether automatically allocating all IMG's including the Applicant to Category 8 is 'likely' to have the effect of disadvantaging them. Again, the answer is transparently 'yes'.
8. The Tribunal acknowledges that the construction it has adopted is a broad one which encompasses all graduates of non-Australian universities as the group discriminated against. Any narrower approach would defeat the objectives of the legislation. These include:

(a) to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs; and

(d) to promote recognition and acceptance within the community of the principle of equality of opportunity for all people.[20]

1. The Tribunal also notes an apt statement by the Equal Opportunity Commission of NSW in relation to that State's discrimination legislation, that:

'The Anti-Discrimination Act does not require that people be employed in inappropriate circumstances to do work which they cannot do; it requires that people be given every opportunity to show what they can do and be allowed their chance at employment...'[21]

1. The situation facing the Applicant is one in which, no matter how excellent his qualities and qualifications, the Applicant cannot be selected for an internship until the least meritorious domestic graduate has been offered the position. The Respondent agrees that this is the situation at hand.[22]
2. The Applicant is condemned to suffer this fate for no other reason than that he was born and educated in his home country of China.
3. The Tribunal notes that in the 2013 intake of interns the number of positions offered within categories did not strictly correlate to the priority of the Categories. For instance, more positions were offered to candidates in Category 6 (inter-State graduates) than to candidates in Categories 3 and 4 (ANUMS graduates applying to ACT and elsewhere) even though Category 6 is of lower priority.[23] If the reason for this is that there were more meritorious applicants in Category 6 than in Category 3, the Tribunal is at a loss as to why the merits of applicants in Category 8 were not considered. There is no evidence before the Tribunal concerning this.
4. The condition imposed by the Respondent that internship applicants graduate from an Australian university (and preferable the ANU) operates in practice to deprive persons such as the Applicant of foreign origin (and thus education) of the opportunity for employment and training as interns. The Tribunal finds that the Respondent's conduct in implementing the priority system constitutes indirect discrimination within the meaning of section 8(1)(b) of the Discrimination Act 1991 (ACT).

1. The Applicant considers that he has been unlawfully excluded from eligibility for a position as Resident Medical Officer (RMO) of the Canberra Hospital. He believes the ground for his exclusion is his race.
2. The Applicant also applied for RMO positions in other jurisdictions. He stated that 'ACT Health was the only organization to cut me out of the RMO recruitment process completely'.[24] The Applicant has provided evidence in the form of emails from Health authorities in New South Wales, the Northern Territory, Queensland, South Australia, and Tasmania acknowledging his application for RMO or similar junior medial officer positions in those States and Territories.[25]
3. The Applicant asserts that these emails are evidence that holders of AMC certificates are eligible for RMO positions. His reasoning is that AMC certificate holders like himself have two paths to obtain registration: either an internship or an RMO position - and thus that completion of an internship and registration are not pre-requisites for RMO positions.[26]
4. Based on his belief that he satisfies the selection criteria for an RMO position, the Applicant has concluded that the Respondent's rejection of his application was based on his race.
5. The Applicant's email correspondence demonstrates only that the Applicant completed the application in those States and Territories, not that he fulfils the selection criteria or other requirements for the position.
6. Evidence from Professor Bowden and the ACTPS Medical Officers Enterprise Agreement 2011-2013 indicates that RMO positions in the ACT require the office-holder to have completed an internship and hold unconditional registration to practice.[27] Professor Bowden's evidence is particularly persuasive as he is the Chief Medical Administrator of ACT Health, responsible for overseeing recruitment and training of medical personnel.[28]
7. The evidence [29] indicates that RMO positions are designed for postgraduates in their second or third postgraduate year. Such persons have gained registration after completing an internship in their first postgraduate year.
8. The pre-selection questions also indicate that registration is necessary for the RMO position. Question 2 asks applicants to select their medical qualification from a list consisting of:
   • Australian Trainee;
   • Doctors with Australian General Registration;
   • Overseas trained and eligible for limited registration via the Competent Authority Pathway, i.e. doctors trained in NZ, UK, Ireland, Canada and USA;
   • Overseas trained with postgraduate qualifications and in final 2 years of Fellowship;
   • Overseas trained with Limited Registration who is currently working in Australian Hospital;
   • None of the above.

1. On the evidence before the Tribunal the Applicant falls into the last category, 'none of the above', which indicates he is not eligible for the position.
2. The Applicant is not registered, nor is he eligible for registration as he has not yet completed an internship in Australia. The MBA guidelines on registration clearly and repeatedly state this is a requirement additional to achieving an AMC certificate:

'An AMC certificate is awarded to international medical graduates who have successfully completed all components of the AMC examinations (standard pathway). These medical practitioners are required to satisfactorily complete 12 months supervised practice in Australia before being eligible for general registration.'[30]

1. Contrary to the Applicant's expressed belief, completing an internship overseas does not mean that the person need not undertake an internship in Australia.[31]
2. The Tribunal accepts the Respondent's evidence that RMOs in the ACT must be registered (or at least be eligible for registration) to practice in Australia. As the Applicant is not registered and is not eligible to be registered, the Tribunal concludes that the ACT's rejection of his application was due to his not meeting fundamental selection criteria. This does not constitute discrimination on the basis of his race or any other protected attribute under the Discrimination Act 1991 or the Human Rights Act 2004.
3. Similarly, imposing the condition upon eligibility for RMO positions that candidates must be registered to practice and have completed an internship does not constitute an act that indirectly discriminates against persons of the Applicant's race.
4. There is the obvious connection between eligibility for RMO positions and eligibility for internships as only persons who have completed internships are eligible for RMO positions. However, the selection process for RMO positions does not involve application of the priority list. The primary consideration is whether candidates are appropriately qualified, which the Applicant is not.
5. There is no evidence before the Tribunal to indicate that the Respondent places any condition of race upon persons applying for RMO positions. The Applicant's ineligibility for the RMO position is an immediate consequence of the Respondent's refusal to admit him into an internship.
6. Therefore, in relation to the RMO positions the Tribunal concludes that the Respondent has not breached section 8(1)(a) or section 8(1)(b) and (2) by directly or indirectly discriminating against the Applicant on the basis of his race.

1. The Applicant considers that the priority list is inconsistent with section 117 of the Commonwealth of Australia Constitution Act.[32] Section 117 provides that:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

1. This provision does not arise in the Applicant's circumstances as he is a resident of the ACT who is protesting his treatment by the Territory, not by any other State.
2. Additionally, this provision does not apply to the ACT or the Northern Territory as they are Territories not 'States' as defined by clause 6 of the Constitution.
3. The Tribunal notes, however, that the Priority List favours ACT graduates and residents over the graduates of other States, and that other States have similar Priority Lists which favour their own graduates and residents - a system which may prove to be inconsistent with section 117 if challenged within those States. This is a matter for others on another day.

1. The Applicant has established that the Respondent both directly and indirectly discriminated against him by reason of his race in contravention of section 8(1)(a) and 8(1)(b) of the Act in automatically placing him in Category 8 of the Priorities Policy governing internships.
2. The Applicant has not established that the Respondent discriminated against him by virtue of his race in contravention of section 8(1)(a) or of section 8(1)(b) of the Discrimination Act 1991 (ACT) in relation to the RMO positions.
3. Having reached this conclusion, pursuant to the agreement made between the parties and the Tribunal at the hearing of 25 November 2014, the Tribunal will await further submissions from the parties as to the 'reasonableness' of the Respondent's conduct in accordance with section 8(2) of the Discrimination Act 1991 (ACT); or for the parties to exercise such appeal rights in respect of this interim decision as they possess.
4. The Registrar is to provide a copy of this interim decision to the parties and relist the matter for directions.

[1] Statement of Professor Bowden, [40].

[2] Respondent's Submissions, [30]; Statement of Professor Bowden, [51]-[54].

[3] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379, [54].

[4] Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [22]-[24].

[5] Tribunal documents, section 1: Complaint to Human Rights and Discrimination Commissioner (28 October 2013), 11.

[6] Purvis v NSW [2003] HCA 62; (2003) 217 CLR 92, 163 [236] (Gummow, Hayne and Heydon JJ).

[7] Harrison v ACT Housing [2002] ACTDT 3.

[8] Jamal v Secretary of the Department of Health (1988) 14 NSWLR 252, 265.

[9] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379, [22].

[10] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379, [24].

[11] Almassey and Omari and ACT Multicultural Council Inc [2009] ACTDT 1, [42].

[12] Discrimination Act 1991 (ACT) section 4A(2).

[13] Tribunal Documents, Exhibit 2: Applicant's Submissions (15 September 2014) 3.

[14] Tribunal Documents, section 4: Letter from Dr P Brown to the Human Rights Commission (December 2013), section 6.

[15] Siddiqui v Australian Medical Council [2000] EOC 93-059 ('Siddiqui').

[16] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 185 in relation to the Anti-Discrimination Act 1977 (NSW).

[17] Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [24].

[18] Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [22].

[19] Respondent's submissions, [46], [47].

[20] Discrimination Act 1991 (ACT) section 4.

[21] Welsh v The Commissioner, Soil, Sand Conservation Service of NSW (1991) EOC 92-330, cited in Prezzi v Discrimination Commissioner [1996] ACTAAT 132, [48].

[22] Tribunal Documents, section 4: Letter from Dr P Brown to the Human Rights Commission (December 2013), section 6.

[23] Statement of Professor Bowden, [59] Table 3.

[24] Tribunal Documents, section 3: Letter from the Applicant to Ms K Gray in response to a letter from Dr P Brown (18 January 2014), section 4.

[25] Tribunal Documents, section 3.

[26] Tribunal Documents, section 3: Letter from the Applicant to Ms K Gray in response to a letter from Dr P Brown (18 January 2014), section 3.

[27] Respondent's Submission, [82]-[86] (ACTPS Agreement at [83]); Statement of Professor Bowden, [74].

[28] Statement of Professor Bowden, [3].

[29] ACT Health, Resident Medical Officer recruitment information (11 June 2014), available at http://health.act.gov.au/employment/medical-officer-training-recruitment/resident-medical-officers/ (accessed 9 December 2014).

[30] Tribunal Documents, section 3: Medical Board of Australia, 'Granting general registration to medical practitioners in the standard pathway who hold an AMC certificate', p1 Summary, p1 'General requirements' at [5], and p2 Specific Requirements at [2].

[31] Tribunal Documents, section 3: Letter from the Applicant to Ms K Gray in response to a letter from Dr P Brown (18 January 2014), section 3.

[32] Tribunal Documents, section 5: Application to the Tribunal, p 2.