|Posted by imdontario on July 5, 2016 at 12:40 AM|
Monday 04 July 2016, 9:44AM
After more than two years of legal wrangling, the verdict is in: The Australian Capital Territory did racially discriminate against an experienced Chinese-born doctor whom it overlooked for a hospital internship.
In a landmark ruling that could have knock-on effects for selection policies elsewhere, a territory tribunal awarded Dr Qinlin Wang $40,000 compensation and found the Australian Captial Territory (ACT) guilty of discrimination over its internship selection policy.
Dr Wang, aged in his 50s, will be eligible for even more money should he not be considered for future internship intakes based on his merits, ACT Civil and Administrative Tribunal senior member Allan Anforth ruled on Thursday.
Eight-tier ladder of preference
The long-running saga centred on a ministerial policy implemented in 2014, which prioritised ACT hospital internship applicants based on where they finished university.
ACT runs the internship programmes for the territory's hospitals.
Graduates of Canberra's Australian National University were given first preference on an eight-tier ladder.
Graduates of other Australian universities formed categories two to six, while graduates from New Zealand universities formed the seventh category and overseas-trained doctors formed the eighth and last category.
The policy meant there was "no real possibility" of Mr Wang - nor any international medical graduate (IMG) - securing an internship, Mr Anforth said.
Dr Wang, who migrated to Australia in 2001 with 16 years' experience and time as the director of neurology at a Chinese medical university, was knocked back in 2014, having completed the necessary examinations, and took his case to court.
He claimed the policy was directly discriminatory on the basis of race because it amounted to a refusal to consider him for an internship based on his national origin.
'Not discriminatory' - ACT
The ACT argued that the policy was not racially discriminatory because foreign-born students could graduate from Australian universities and vice versa.
But Mr Anforth struck that argument down, saying it focused on exceptions rather than the rule. In general, he said, graduates of foreign universities are foreign-born.
"The discrimination is solely based on the location of their educational history which by implication generally brings into play their national origin," he said in an 84-page written ruling.
Assertion over graduate quality struck down
Mr Anforth also struck down an assertion by the ACT that ANU graduates were of higher quality and better suited because of "subtle differences" in local practice, calling it "only an assumption".
He ruled there was no evidence for the claim, adding that it was "offensive to other domestic and overseas universities and even more so to well-qualified experienced overseas doctors".
'Motivated by desire to promote medical school'
Mr Anforth said the policy appeared to be largely driven by "a motivation to promote the economic and academic viability of the ANU Medical School" and a misunderstanding of discussions at a meeting of the Council of Australian Governments.
He said the policy was "intrinsically discriminatory on the basis of race" and robbed the people of the ACT of access to experienced overseas practitioners and the best graduates from Australia and the globe.
Informed that the IMG category has since been removed, Mr Anforth ruled this only made the policy more discriminatory because it means overseas trained doctors aren't considered at all.
Awarding Dr Wang $40,000, he said the former neurosurgeon had suffered "considerable anxiety, embarrassment and humiliation".
Not over yet
The ruling is the most substantive development in the case's long history.
At one point, following an interim decision in Mr Wang's favour, the ACT appealed to the Supreme Court to have Mr Anforth recuse himself for perceived bias.
The ACT alleged Mr Anforth had a direct personal interest in the case after he was overheard discussing discrimination in the medical profession with a witness.
He allegedly told the witness that a medical college in which his daughter was involved had been criticised for discriminating against women and against those tutored by overseas-trained specialists.
Mr Anforth dismissed the bid, saying he was required to "have an open mind to the issues, not an empty mind".
The ACT Supreme Court rejected the application and Dr Wang's case was re-heard after the interim decision was quashed.
ACT expected to appeal
Yet the latest decision is unlikely to be the final development. Bill Madden, a prominent medico-legal expert, says he expects the ACT to appeal the verdict.
The decision could have flow-on effects for intern selection policies elsewhere, he says, but it's too early to say.
For a start, the option is open to the ACT to amend relevant legislation to exempt medical selection policies from discrimination provisions.
The decision: Wang v Australian Captial Territory (Discrimination)  ACAT 71