Wang v Australian Capital Territory¹ (“Wang”) concerns the discriminatory treatment of international medical graduates in applications for internships in Australian Capital Territory (ACT) hospitals. The decision is of note to Australian medical colleges.²

Background

Dr Qinlin Wang is a Chinese-born, and trained, doctor with Australian citizenship. Dr Wang completed the necessary Australian Medical Council examinations for recognition of his Chinese medical qualification in 2011. He then applied for an internship position at Canberra Hospital to commence in 2014. Such an internship is an essential requirement for any international medical graduate in order to qualify for registration as a medical practitioner in Australia.

The respondent, the Australian Capital Territory (ACT), is responsible for running the internship programs for ACT hospitals. In 2014 the respondent implemented a new Ministerial ‘internship policy’ (the Policy) that prioritised applicants for internships in ACT hospitals into eight categories. The first priority category was for ANU Medical School Graduates, followed by graduates of other Australian Universities. Overseas trained doctors were relegated to the last priority category. Resultantly, there was no real possibility of Dr Wang, or any other overseas trained doctor, obtaining an internship at the Canberra Hospital.

Dr Wang brought a claim against ACT for direct and indirect discrimination under section 8 of the Discrimination Act 1991 (ACT).

Findings

The Discrimination Act 1991 (ACT) (DA) prohibits discrimination on the grounds of certain attributes, including race. This is extended to discrimination based on a characteristic that people with a certain attribute generally have.3 It was agreed that it is generally the case that medical graduates obtained their degrees in their country of origin. Therefore, distinguishing applicants on where they obtained their medical degree amounted to distinguishing applicants on their race.

The Policy was found to be discriminatory due to the intention to distinguish between people of Australian ‘national origin’ and those that are not4 and the ACT was therefore found guilty of direct and indirect discrimination over its internship selection policy. Dr Wang was awarded $40,000 compensation for having suffered “considerable anxiety, embarrassment and humiliation5 as a result of the discriminatory conduct and is to be considered on his merits for the next internship intake. The consideration of Dr Wang’s merits must be free of assumptions to the effect that all ANU graduates would be superior candidates to the applicant on their merits just by reason of the fact that they are recent ANU graduates.6

Jurisdiction

Similar issues have been the subject of decisions of courts and tribunals throughout Australia in the context of differently worded discrimination statutes. As noted by the court in Wang, these differences in wording are of significance.7

For example, the case of Australian Medical Council v Wilson & Ors8 (“Wilson”) concerned a quota system imposed by the Australian Medical Council (AMC) on overseas trained doctors. The policy sought to accredit the first 200 candidates on the AMC examination. Dr Siddiqui, an Australian citizen who obtained his medical qualification in India, did not rate in the first 200 for his exams and was thus not accredited. Dr Siddiqui unsuccessfully challenged the policy under the Racial Discrimination Act 1975 (Cth) (RDA).

The RDA does not contain an extended definition of ‘characteristic’ or ‘attribute’ as appears in the DA. Sackville J took the view that unless the policy criteria explicitly mentioned national origin, as opposed to ‘overseas trained’, then no discrimination had occurred.9 The Tribunal in Wang distinguished Wilson, based on differences in legislation.10

Implications for Australian Medical Colleges

The decision of Wang should be noted by the Australian medical colleges. While the case focused on international medical graduates applying for Australian internships, there may be flow-on effects for applicants seeking fellowships with an Australian medical college.

The decision is consistent with the recent push from the Expert Advisory Group,11 endorsed by the Medical Board of Australia (MBA) and Australian Health Practitioner Regulation Agency (AHPRA), for action across the health sector to end discrimination, bullying and sexual harassment. Specifically, the Expert Advisory Group report included reference to specialist international medical graduate assessment and encouraged specialist medical colleges to ensure transparency and accountability in their assessment of international medical graduates and ensure these processes are free from discrimination, bullying and sexual harassment.12

Wang demonstrates that differentiating criteria which is not expressly discriminatory may act as a “proxy” for discriminatory criteria regardless of whether it is intentional or not.413 Therefore, the colleges should be aware that even where discrimination is not intended, if an application or selection process distinguishes applicants based on a factor which by implication ‘generally’ brings into play an “attribute” or “characteristic” noted in relevant discrimination legislation, the process or criteria may be considered discriminatory.

Given the history of the case, it is likely to be appealed. The Colleges should be aware of any appeal, and in the meantime, ensure all processes relating to applications and the review of applications from international medical graduates for a specific medical college are free from discrimination.14