Waters v Public Transport Corporation [1996] FCA 591 | Case summary

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. 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. 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. Article 5 of the Convention provides: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the employment of the following rights: 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. 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. 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. 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. Mr Melham then went on to refer to Australian Iron and Steel Pty Ltd v Banovic (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. 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. 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) 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. 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. 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) 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". 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. 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. The Commission's Decision 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. 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. 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. 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. 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. 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. As to s 9(1A)(c) the Commission said: 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. 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. 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 Section 9(1) - "act ... based on" This expression was considered by the South Australian Full Court in ALRM v State of South Australia (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) 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. 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. 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. Section 9(1A)(a) - "person requires" 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. Section 9(1A)(a) - What was the requirement? 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. Liability of Commonwealth Minister - Section 17 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" 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) 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. 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. 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". 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. 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. 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. 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. 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. 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. 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. 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. Section 9(1A)(b) - "does not or cannot" 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. 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. In my opinion the Commission was correct in looking back to see whether the requirement was in fact complied with. Section 9(1A)(c) - "equal footing" 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. 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. 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. 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

(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." 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) 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." 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. 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) 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.) 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) 173 CLR 349, at 357-8, per Mason J. and Gaudron J. 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." 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. 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). 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. 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. Some General Propositions 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)). 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. 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". 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). 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 C.J. 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. 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. 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). 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 C.J. 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]". 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 C.J. 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. In James v Eastleigh Borough Council [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'". 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. 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 [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". 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). 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". Lord Cross said this (at 365): "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." 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. 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. 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. 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. 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. 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". 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." 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. 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. 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. 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. 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. Section 9(1) of the RD Act: The Quota 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. 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. 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. 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. 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. 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. Section 9(1A)(a): The Quota and its Application 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. 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 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. 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. 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. 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. 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. 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 [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. 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 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. 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). 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." 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. 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. The broader interpretation of s.9(1A)(c) seems to me to be justified by a number of considerations: l 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. l 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. l 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. 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." 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. 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. 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. 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. 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. 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.) Conclusion In the result, I agree with the orders proposed by Heerey J. I certify that this and the preceding 37 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Dated: Heard: 4-6 March, 1996 Place: Melbourne Decision: 17 July 1996 Appearances: Dr J.A. Scutt, instructed by Martin Willoughby-Thomas, barrister & solicitor, appeared for Dr B. Siddiqui. Mr P.D. McClellan Q.C., instructed by Mallesons Stephen Jaques, solicitors, appeared for the Australian Medical Council. Mr. R.R.S. Tracey Q.C., with Mr. A.L. Cavanough, instructed by the Australian Government Solicitor, appeared for the Commonwealth Minister for Health.

Waters v Public Transport Corporation

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (17)

Cases Cited (9)

Cited By (5)