The ACT Civil and Administrative Tribunal has found that the Australian Capital Territory engaged in an act of discrimination by implementing a policy which had the effect of discriminating against internship candidates on the basis of race.

The Background

The matter involved an application by Dr Wang, a neurologist and Australian citizen who had obtained his tertiary qualifications in China. Dr Wang had unsuccessfully applied for an internship role with Canberra Hospital which consequently left him unable to register as a medical practitioner in Australia.

Dr Wang argued that the internship program for which he applied had moved from a merits based selection to a program which instead selected employees based on a new ACT government policy.

The ACT’s internship policy prioritised applicants for hospital internships by allocating categories for placement based upon where the applicant graduated, specifically offering guaranteed first-round offers to graduates from the Australian National University (ANU). Australian and New Zealand graduates occupied the next six categories. Only one category allowed for overseas graduates, which was the last and had the least chance of success, with Dr Wang arguing that this gave him “no real” or practical possibility of obtaining an internship.

The Tribunal’s Decision

During the hearing, the ACT argued that the needs of patients in ACT hospitals would be best met by people trained in the environment in which they would be working. However, this was rejected by the Tribunal on the basis that there was “neither evidence nor common sense to support these assertions”.

The Tribunal found the policy imposed a disadvantage on overseas-trained doctors by comparison to doctors trained in Australia, with the consequence that overseas trained doctors had little to no chance of being offered an internship at an ACT hospital.

As it was accepted by the Tribunal that generally, medical graduates obtain their qualifications in their country of origin, by distinguishing internship candidates by where they graduated, the ACT was by proxy discriminating on the grounds of national origin “notwithstanding that there may be exceptions”.

The ACT Government was ordered to compensate the doctor $40,000 for anxiety, embarrassment and humiliation, and will be forced to consider him on his merits for their next internship intake in a process “free of any assumptions” that domestic graduates are superior to those trained overseas.

A Wake-up Call for all Employers

The case shows that employers large and small can sometimes get it wrong despite their best intentions, and serves as a timely reminder to employers to be conscious of potential discrimination risks encased in their policies.

Indirect discrimination is a silent killer – hard to identify, sometimes difficult to avoid, but as dangerous to your business and reputation as any explicit act of direct discrimination. We recommend that employers regularly have their policies reviewed by employment relations specialists to ensure that they are not engaging in discriminatory acts against employees or candidates by implementing or enforcing such policies.

Wang v Australian Capital Territory [2016] ACAT 71