Amicus Submission: Wang v ACT Health

Indirect Discrimination

11.         As noted by the Tribunal in the Interim Decision, s 8 of the Act defines conduct that constitutes indirect discrimination:

8 What constitutes discrimination

(1)              For this Act, a person discriminates against another person if—

(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

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

12.         The Tribunal found that the area of discrimination in this matter is both employment under s 10 of the Discrimination Act, and education under s 18.[3]

13.         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.

14.         The Tribunal stated in the Interim Decision that the test in section 8(1)(b) is whether automatically allocating all International Medical Graduates (IMGs), including the Applicant to Category 8, is ‘likely’ to have the effect of disadvantaging them. The Tribunal answers this question by stating it is ‘transparently yes’.[4]

15.         At paragraph 129, the Tribunal noted 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. If the reason for this is that there were more meritorious applicants in Category 6 than in Category 3, the Tribunal was at a loss as to why the merits of applicants in Category 8 were not considered. There was no evidence before the Tribunal concerning this in the initial proceedings.

16.         At paragraph 130 of the Interim Decision, the Tribunal noted that 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 found 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).

17.         The Tribunal now seeks further evidence on whether this conduct is reasonable.