1. On 16 January 2015, Senior Member Anforth released an interim decision in this matter (‘the Interim Decision’), finding that the Respondent had both directly and indirectly discriminated against the Applicant on the grounds of his race by implementing the priority policy and placing the applicant in Category 8.
2. The Tribunal left open the question as to whether the indirect discrimination was ‘reasonable’.
3. The Human Rights and Discrimination Commissioner makes this submission on the relevant legal tests for determining reasonableness, particularly by reference to the ACT Human Rights Act 2004.
4. Senior Member Anforth summarised the facts in the Interim Decision as follows.
5. The Respondent claims that the discrimination arises from the manner in which his applications were assessed for an internship and for a resident medical officer (RMO) position during 2014 at Canberra Hospital.
6. The Applicant is a 51 year-old migrant from China who arrived in Canberra in 2001. He is a permanent resident of Australia who seeks general registration to practice as a health practitioner in Australia. He holds a MBBS and Master’s degree in neurology from the Tianjin Medical University in China. His degrees have been formally recognised by the relevant authorities in Australia. He has satisfied all the requirements for registration as health practitioner in Australia except that he needs to complete a one year internship.
7. The Respondent, ACT Health, is faced with the problem that there are more applications from medical graduates for internships and second year graduates for RMO positions, than training positions in the ACT. The Respondent developed a policy to guide the allocation of internships which has been approved by the ACT Health Minister. This policy creates priority Categories 1-8 which depend upon the geographic location of the university from which an applicant’s medical qualification was obtained.
8. Category 1 is limited to ANU graduates. All internationally trained graduates are automatically in Category 8. The categories in between deal with graduates of other Australian universities.
9. In 2014 there were only enough training positions in the ACT for applications in Category 1 with a few left over for Category 2. There is no prospect of a Category 8 graduate being allocated a training position.
10. The Applicant complained that the automatic allocation to Category 8 of internationally trained graduates is unlawful discrimination on the basis of nationality.