Australia: Hospital internship policy found to be discriminatory: Wang v Australian Capital Territory (Discrimination)[2015] ACAT 5

A Chinese born doctor, Dr Wang, who applied for an internship with Canberra Hospital was found to have been both directly and indirectly discriminated against by reason of his race under a policy which prioritised candidates for internships.

The Health Practitioner Regulation National Law establishes the Australian Health Practitioner Regulation Agency (AHPRA). AHPRA consists of several boards including the Medical Board of Australia (MBA), which is responsible for, among other things, registration of medical practitioners.

Graduates from Australia and New Zealand must obtain provisional registration and complete 12 months supervised training before becoming eligible for unconditional registration.

In order to work as health practitioners in Australia, international medical graduates (IMGs) must have their qualifications formally recognised and be registered by the MBA.

There are three pathways by which IMGs can become registered: the Competent Authority pathway, the standard pathway and the specialist pathway. Dr Wang was only eligible for the 'standard pathway': His qualifications are from an institution listed in the International Medical Education Directory, but not from a Competent Authority in Canada, Ireland, New Zealand, the UK, or the US, and he applied for general (not specialist) registration.

To complete the standard pathway, IMGs must be certified as having passed theoretical and clinical exams set by the Australian Medical Council, secure provisional registration and an offer of suitable employment, and complete 47 weeks of supervised practice (an internship).

The approaches and needs of medical systems vary between countries; graduate training is specifically tailored to the health system of the country in which the education is given. The requirements imposed upon IMGs are designed to ensure that they have the knowledge and practical experience of the Australian system needed to safely practice in Australia.

Responsibility for training medical practitioners in Australia is shared between the Commonwealth and the States and Territories. The Commonwealth funds university medical education, while the States and Territories fund internships in public hospitals.

Since additional funding and incentives were introduced in 2006, the number of medical graduates has dramatically increased. Since 2013 the number of graduates has exceeded the number of internships available. To address this situation, the States and Territories reached a number of inter-governmental agreements on the availability of internships.

As a result of such an agreement, the ACT Government implemented a priority system with the intention of preferring ANU graduates over graduates of other Australian universities and preferring Australian graduates over international graduates.

Dr Wang arrived in Canberra in 2001 and is a permanent resident of Australia. He holds an MBBS and Master's degree in neurology from the Tianjin Medical University in China. His degrees had been formally recognised by the relevant authorities in Australia. He had satisfied all the requirements for registration as a health practitioner in Australia except that he needed to complete a 1 year internship and he applied to Canberra Hospital (as well as several other hospitals) for an internship.

Each year Canberra Hospital (and many others like it) is faced with the problem of more applications from medical graduates for internships and second year graduates for RMO positions, than training positions. The priority policy which is to guide the allocation of internships was approved by the ACT Health Minister. This policy created priority Categories 1-8 which depended upon the geographic location of the university from which an applicant's medical qualification was obtained. Category 1 is limited to ANU graduates. All internationally trained graduates were automatically in Category 8. The categories inbetween deal with graduates of other Australian universities.

At the time Dr Wang applied, 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 was no prospect of a Category 8 graduate being allocated a training position.

Dr Wang complained that the automatic allocation to Category 8 of internationally trained graduates was unlawful discrimination on the basis of nationality.

The ACT Government argued that the policy did not discriminate on the basis of race because it only took into account where a person trained, not their ethnicity.

Australian Capital and Administrative Tribunal (ACAT) Member Anforth did not accept this submission, stating

It is beyond trite and warrants no argument, that it is 'generally' the case that graduates of a Chinese medical school are 'generally' of Chinese nationality, and the same is also true of other nations.

The ACAT found:

  • Dr Wang had been discriminated against by reason of his race in contravention of section 8(1)(a) and 8(1)(b) of the Discrimination Act 1991 (ACT) (the Act) in automatically placing him in Category 8 of the Priorities Policy governing internships, however;
  • Dr Wang did not establish that the hospital had discriminated against him by virtue of his race in contravention of section 8(1) (a) or of section 8(1)(b) of the Act in relation to the RMO positions.

In the judgment, the ACT Health Minister was criticised for signing off on the policy which allowed hospitals to preference doctors trained in Australia and commented that the policy may also be in breach of the Constitution of Australia.

The tribunal has asked the ACT Government to justify the "reasonableness" of its conduct and criticised the ACT Health Minister for signing off on such a policy. ACAT Member Anforth said:

"It is not open to a Minister ... or to any public administrator to side step that law because they perceive parochial economic advantages in doing so."

Both parties have been given more time to make submissions in light of the findings of ACAT.

To ensure your recruitment and selection policies are not discriminatory, contact Rachael Sutton or Alicia Mataere in our Workplace Relations team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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