Equal Opportunity Tribunal of New South Wales CITATION: Hoy -V- Illawarra Area Health Service [1996] NSWEOT COMPLAINANT: Dr Stephen Hoy RESPONDENT: Illawarra Area Health Service NUMBER: 21 of 1994 Ms Penny Goode ( Judicial Member ) TRIBUNAL: L Mooney M Luger GROUNDS OF COMPLAINT: Race discrimination in employment DATES OF HEARING: 09/18/1995; 09/19/1995; 03/12/1996; 06/21/1996 DATE OF JUDGMENT: 09/19/1996 Complainant: Self-represented LEGAL REPRESENTATIVES: Respondent: Ms J Redfern Hunt & Hunt JUDGMENT IN FAVOUR OF: The Complainant, Dr Hoy, is an Australian national of Chinese racial origin. By letter dated 26 November 1991, he lodged a complaint with the President of the Anti-Discrimination Board ("the ADB") alleging that the Respondent, the Illawarra Area Health Service ("the IAHS"), had discriminated against him on the ground of his race, primarily by declining his application for employment as a permanent Visiting Medical Officer ("VMO") Specialist Anaesthetist. Notwithstanding the fact that the alleged discriminatory treatment occurred more than 6 months before the complaint was lodged, the President of the Board elected to accept the complaint out of time upon being satisfied that "good cause" had been shown within the meaning of s. 88(4) of the Anti-Discrimination Act ("the Act"). In due course, conciliation having been unsuccessful, the President informed the Complainant that he had declined to entertain the complaint further since, in his view, it was lacking in substance (see s.90(1) of the Act). Thereafter, the Complainant exercised his right under s.91(1) of the Act to require that the complaint be referred to the Tribunal and the President referred the complaint on 30 May 1994 (see s.91(2) of the Act). Pursuant to s.96 of the Act, we are required to hold an inquiry into each complaint referred to us under s.91(2) and must form our own opinion on the merits or otherwise of the complaint. In doing so, we must confine our attention to the evidence and the inferences which can properly be drawn from it. In this regard, we are not permitted to attach any weight to the opinion the President may have formed during the course of his investigation into the complaint. Background to the Complaint The background to the complaint is important. Unless stated otherwise, the following brief facts are not in dispute. The Complainant attended Nunawading High School in Victoria and in 1969 graduated from the University of Melbourne with a Bachelor of Medicine and Surgery. Thereafter, until 1973, he worked at various hospitals in Australia gaining postgraduate training and experience in General Medicine, Surgery, Pediatrics, Obstetrics and Gynaecology, Anaesthetics, and Casualty Medicine. From 1974-1977 he studied Anaesthesiology at the University of Pittsburgh Health Science Centre Hospital, the University of Utah Medical Centre Hospitals, and the University of Texas Health Science Centre and Parkland Memorial Hospitals. In 1976 he qualified as a Fellow of the American College of Anaesthesiologists and in 1978 he received a Diploma from the American Board of Anaesthesiology. Thereafter, he worked as a Staff Anaesthetist at Kaiser Hospital until 1980 and as a VMO Anaesthetist at various hospitals in California until 1988. After returning to Australia sometime in 1988, he registered with the Medical Board of NSW as a specialist anaesthetist. He also attained recognition as a specialist anaesthetist from the Specialist Recognition Advisory Committee entitling him to be recognised, for the purposes of the Health Insurance Act, as a specialist anaesthetist. Thereafter, he performed casual work as a locum Anaesthetist in Australia at Royal Canberra and Woden Valley Hospital and Bowral Hospital. Sometime in August 1990, the Complainant read an advertisement placed by the Respondent in the Sydney Morning Herald seeking VMO Specialists in a number of areas including Anaesthetics. He said he responded to this advertisement but his application was ignored. This is disputed by the Respondent. The Complainant also said that sometime in September 1990, he responded to another advertisement placed by the Respondent in the Sydney Morning Herald seeking VMO Specialist Anaesthetists only. It is common ground that he responded to this advertisement and that Dr Noonan, the Respondent's Medical Director at the time, invited him to work as a VMO Anaesthetist on a temporary basis initially for a period of three months. This was later reduced to one month at the Complainant's request. The Complainant said that he only accepted the temporary appointment because Dr Noonan had guaranteed him the permanent position provided he satisfactorily performed his duties during the one month trial period. While this is disputed by the Respondent, it is common ground that the Complainant worked for the Respondent as a VMO Anaesthetist, without incident, for a period of one month until sometime in January 1991. Thereafter, it is not in dispute that the Complainant was interviewed by the Medical Appointments Advisory Committee ("the MAAC") for a permanent position as a VMO Anaesthetist on 25 February 1991 and that, although he was the only applicant at the time, he was unsuccessful. It is, however, disputed that after the interview Dr Noonan telephoned the Complainant and said words to the following effect: "You did not get the job. We are going to re-advertise. You can continue to work until such time as a real Aussie applies." By letter dated 15 March 1991, the Complainant was formally advised by Mr Rasa, the Respondent's Chief Executive Officer at the time, that his application had been unsuccessful. The only reason given in the letter is set out below: "The Board's primary concern in its decision to readvertise the position is based on its desire to establish the Illawarra Regional Hospital as a teaching hospital and, therefore, ensure a staff complement of Specialists and Anaesthetists who are members of the FFARACS." At the time, the FFARACS was the Fellowship of the Faculty of Anaesthetists, Royal Australian College of Surgeons. It is hereinafter referred to as "the Australian Fellowship". The Complainant's Case Although the Complainant was not represented at the hearing, his case was prepared in a meticulous and thorough way. In his Points of Claim, he alleges that the Respondent's conduct contravened both the Anti-Discrimination Act (NSW) and the Racial Discrimination Act (Cth). Since, however, the Tribunal's jurisdiction does not extend to alleged breaches of the Commonwealth Act, our findings must necessarily be confined to the alleged contraventions of the NSW Act. Although it is not expressly spelt out in either his Points of Claim or his submissions, we understand the Complainant's case to be that the Respondent unlawfully discriminated against him on the ground of his Chinese origin pursuant to s.8 of the Act in the following ways: (1) In respect of the position for a VMO Anaesthetist advertised in August 1990, by ignoring his application altogether. (2) In respect of the position for a VMO Anaesthetist advertised in September 1990: (a) by requiring him to undergo a trial period when offering him temporary employment in December 1990; and (b) by declining to appoint him as a permanent VMO Anaesthetist. With respect to the conduct referred to in each of the abovementioned categories, we understand the Complainant's case to be that the Respondent engaged in direct discrimination within the meaning of s.7(1) of the Act (in force at the relevant time). With respect to the conduct referred to in category 2(b), we understand the Complainant's case to be that the Respondent also engaged in indirect discrimination within the meaning of s.7(2) of the Act (in force at the relevant time). In this regard, it is only necessary for the Complainant to succeed in establishing either direct discrimination or indirect discrimination. The indirect discrimination case is pressed by the Complainant on the basis that the Respondent imposed a condition on him that in order to be accepted as a permanent VMO Anaesthetist, he was required to have the Australian Fellowship. He alleges that a substantially higher proportion of persons of non-Chinese origin were able to comply with this requirement, that it was not a reasonable one in the circumstances and that he was unable to comply with it. The differences between the two forms of discrimination were analysed by the High Court in Waters & Ors v Public Transport Corporation (1991) EOC 92-390; for example, in their joint judgment, Dawson and Toohey JJ expressed the following view at EOC p.78, 693: "The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable." See also Mason CJ and Gaudron J at EOC pp. 78, 672-78, 673 and Dawson J in Australian Iron & Steel Pty Ltd v Banovic & Anor (1989) EOC 92-271 at pp. 77, 736-77, 737. Relevant Sections of the Act At all relevant times, the term "race" was defined in s.4 of the Act to include "colour, nationality and ethnic or national origin". At all relevant times, ss.7 and 8 of the Act provided: 7. (1) A person discriminates against another person on the ground of race if, on the ground of - (a) his race; (b) a charcateristic that appertains generally to persons of his race; or (c) a characteristic that generally imputed to persons of his race; he (d) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race; or (e) segregates him from persons of a different race. (2) A person discriminates against another person on the ground of his race if he requires the other person to comply with a requirement or condition - (a) with which a substantially higher proportion of persons not of the same race as the other person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the other person does not or is not able to comply. Inquiry under Section 8 of the Act It seems clear that the inquiry under s.8 of the Act is directed to the ground of the alleged differential treatment afforded to the Complainant. In this regard, even if the Respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory within the meaning of s.8(1) and/or s.8(2) of the Act. This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority: see, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation (supra) at EOC p.78, 674 and the judgment of Clarke JA in Waterhouse v Bell (1991) EOC 92-376 at pp. 78, 589-78, 590. Further, provided that an operative ground of the differential treatment is one of those mentioned in s.7(1) or s.7(2) of the Act, it does not matter that there may have been an additional ground which falls outside s.7: see Waterhouse v Bell (supra) per Clarke JA at EOC pp.78, 588 - 78, 589 and Holdaway v Qantas Airways Limited (1992) EOC 92-395 at pp. 78, 809-78, 810. Thus, for example, in relation to the Complainant's primary claim that the Respondent unlawfully discriminated against him by declining to appoint him as a permanent VMO Anaesthetist, provided the Complainant can establish that his race was an operative ground of the decision, he is still entitled to succeed even though there may have been additional reasons for declining to appoint him which do not contravene the Act. (Cf. s.4A of the present Act which did not come into effect until 8 August 1994.) Evidence and Our Findings In order to determine the issues raised by the various claims of unlawful discrimination, it is necessary to consider the evidence presented in the respective cases for the Complainant and the Respondent in some detail. We discuss the evidence and our findings in respect of each claim below. The Position Advertised in August 1990 As mentioned previously, the Complainant said that he had lodged two applications with the Respondent, one in response to a general advertisement which appeared in August 1990 seeking VMO's in a number of areas including Anaesthetics, and the other in response to an advertisement which appeared in September 1990 seeking VMO Specialist Anaesthetists only. He alleges that the Respondent ignored the earlier application and that it did so because of his Chinese origin. This is denied by the Respondent. It contends that the Complainant only responded to one advertisement, namely that which appeared in September 1990. Although we accept that two advertisements may have appeared in the Sydney Morning Herald on two different occasions, it is significant that the closing date for each position is specified as 28 September 1990. The first advertisement refers to Position Number 6253AS and the second to Position Number 6251AS. Dr Noonan said that on 27 September 1990 he received the Complainant's handwritten application, dated 25 September 1990, in response to the position advertised in September 1990, that is position Number 6251AS. This 5 page application is Annexure "B" to Dr Noonan's statement of 4 September 1995. Interestingly, although neither the Respondent nor the Complainant drew our attention to it, the cover sheet of the Complainant's application for Position Number 6253AS is also annexed to Dr Noonan's statement as part of Annexure "B". An identical copy of Annexure "B" also appears as part of Tab 7 to the President's Report. Under the heading "Section A - Personal" which appears on the cover sheet of the Complainant's application for Position Number 6253AS, the handwritten words "Please see accompanied application" have been inserted. Not only is the handwriting the same as that which appears in the application for Position Number 6251AS but it bears the Respondent's date stamp of 27 September 1990. We infer from this that the Complainant had in fact applied for both positions on 25 September 1990 and that to avoid supplying the same details twice, he had simply attached the cover sheet for Position Number 6253AS to the form he had completed for Position Number 6251AS. Accordingly, when Dr Noonan wrote to the Complainant on 30 October 1990 to advise him that he had received his application and to invite him to contact him to arrange an interview, we are satisfied that he was, in effect, referring to the two applications for the position of VMO Anaesthetist which were received on 27 September 1990. We also accept Dr. Noonan's evidence that he received no reply to his letter of 30 October 1990 and, accordingly, that on 20 November 1990 he instructed Dr Lim, the Respondent's Acting Medical Superintendent at the time, to write to the Complainant to arrange a time for an interview. Although it is not in dispute that the Complainant contacted Dr Noonan in late November 1990, Dr Lim's letter of 20 November 1990 makes it clear that prior to this several attempts had been made by both post and telephone to contact him regarding the position of VMO Anaesthetist. Taking into account the endeavours made by both Dr Noonan and Dr Lim to arrange an interview with the Complainant, we do not accept that his application for Position Number 6253AS which was advertised in August 1990 was ignored. It therefore follows that we do not accept his claim that the Respondent ignored his application on the ground of his Chinese origin. We turn now to discuss the circumstances surrounding the Complainant's temporary appointment. The Complainant's Temporary Appointment We understand the Complainant's case to be that the Respondent afforded him less favourable treatment than persons of non-Chinese origin by requiring him to undergo a trial before appointing him as a VMO Anaesthetist. In order to determine this claim, it is necessary to consider the conflicting evidence relating to the Complainant's temporary appointment. Before doing so, however, it is convenient to determine whether Dr Noonan told the Complainant after his unsuccessful interview by the MAAC that he could continue to work until such time as "a real Aussie" applied for the position. Dr Noonan denied that he had said this to the Complainant and said he had no concerns about hiring persons of Chinese origin. If we accept the Complainant's evidence on this point it would of course strengthen his case considerably as it would tend to show that Dr Noonan was motivated by an anti-Chinese bias. Dr Noonan impressed us as a credible, candid and forthright witness. Having had the opportunity to observe both Dr Noonan and the Complainant give evidence, we do not accept that Dr Noonan said the words attributed to him. Had he made such a comment, it is reasonable to expect that the Complainant would have made reference to it in his original complaint to the ADB or in his subsequent correspondence. In cross-examination he said he was devastated by Dr Noonan's comments yet he appears not to have raised the allegation until his statement dated 13 July 1995, over 4 years after the event. We do not find the Complainant's evidence convincing on this point and have no difficulty in preferring that given by Dr Noonan. In relation to the Complainant's temporary appointment, Dr Noonan wrote to the Complainant on 29 November 1990 offering him an appointment as a VMO Specialist Anaesthetist, for an initial period of 3 months, for the express purpose of providing leave relief to the Division of Anaesthetics. In the letter he said: "During that period and subject to you performing your duties to the satisfaction of the Division of Anaesthetics, a VMO position will be advertised and you are welcome to apply." The Complainant said that the letter misrepresented the oral agreement he had reached with Dr Noonan before the letter was drafted. He maintained that Dr Noonan had told him that although his qualifications had been accepted by the Board of the IAHS, he needed to undergo a trial period of 3 months before the permanent position could be offered to him. In response to this, he said that he had told Dr Noonan that because he was only interested in the permanent position he was not interested in providing vacation relief. Accordingly, he said they had agreed on a trial period of one month. In cross-examination he went further than this by stating that he had made it very clear to Dr Noonan that he was only willing to undergo the one month trial if, subject to satisfactorily performing his duties, it would automatically result in a permanent appointment. When asked why he had not included this in his statement dated 13 July 1995, he said he had simply forgotten to do so. Significantly, he also omitted to include this in his complaint to the ADB. It is common ground that the Complainant did not reply to Dr Noonan's letter of 29 November 1990. In cross-examination, he said he had not done so because the letter did not represent the oral agreement he had reached with Dr Noonan. Dr Noonan was unable to recall the details of his oral discussions with the Complainant but denied that he had told him his qualifications had been accepted by the Board. He said he did not have the authority to make permanent appointments and believed he would have advised the Complainant of this fact and that the decision was a matter for the MAAC. It emerged in evidence that this Committee makes recommendations to the Board of the IAHS in relation to medical appointments but that the Board has the final say. Rather than responding in writing to Dr Noonan's letter of 29 November 1990, it appears that the Complainant spoke to Dr Lim to express his concerns about the terms of his appointment. In his letter of 4 December 1990, Dr Lim states the following: "I have discussed your concern regarding the three months temporary appointment with Dr Noonan and he has agreed that it should be reduced to one month after which a decision will be made concerning a permanent appointment." Nothing is said in Dr Lim's letter to suggest that the Complainant would automatically have been appointed to the permanent position if he performed his duties satisfactorily during the one month period. Indeed, neither Dr Lim nor Dr Noonan had the authority to give such a guarantee. Dr Noonan said that he was only authorised by the Board to make temporary appointments for a maximum of 3 months. In view of the Respondent's pressing need to provide leave relief and the Complainant's obvious reluctance to accept a temporary appointment longer than one month, we accept that both Dr Noonan and Dr Lim may well have led the complainant to believe that it was likely that he would get the permanent position. In fact, Dr Noonan said that as of the date of the Complainant's attendance before the MAAC he thought he would be appointed to the position. However, we do not accept that either Dr Noonan or Dr Lim guaranteed him the permanent position provided he performed his duties satisfactorily or that the Complainant imposed such a condition. Similarly, we do not accept that by offering the Complainant temporary appointment for a one month period the Respondent was, in effect, requiring the Complainant to undergo a trial. Nowhere in the correspondence is it referred to as such. However, given the circumstance that the Complainant was the only applicant for the position, it is understandable that he construed it as such. This being the case, it is unfortunate that the Complainant did not write to either Dr Lim or Dr Noonan setting out what he understood to be the agreed terms. The Tribunal accepts that when Dr Noonan offered the Complainant temporary appointment as a VMO Anaesthetist in November 1990, he had already decided to readvertise the position in December 1990. Indeed, it is clear from his letter to the Complainant dated 29 November 1990 that the Complainant was advised of this. It is also clear from both Dr Noonan's evidence and the Minutes of the MAAC meeting held on 25 February 1991 that it was necessary for a whole range of medical appointments to be deferred until after the Christmas/January period because of some industrial unrest. Given this circumstance and the fact that the Complainant was the only applicant for the VMO Anaesthetist position, we accept that it was reasonable for Dr Noonan to readvertise the position in December 1990 to attract a wider pool of applicants. We do not accept the Complainant's submission that in reaching this decision Dr Noonan was influenced by the Complainant's Chinese origin. Similarly, we also reject the Complainant's submission that because of his Chinese origin Dr Noonan would have ignored his application altogether had there not been a pressing need to provide leave relief. We accept Dr Noonan's evidence that at the time he appointed the Complainant as a temporary VMO Anaesthetist, he intended to refer his application for the permanent position to the MAAC. Clearly, his application was referred to the MAAC even though he did not reapply for the position in December 1990. Even if the Complainant's temporary appointment is more correctly characterised as a trial, we do not accept that the imposition of such a term contravened either s.8(1) or s.8(2) of the Act. In this regard, we accept Dr. Noonan's evidence that several doctors in the Division of Anaesthetics had undergone a trial before their appointment and that the requirement that they do so did not depend on either their racial origin or whether they had the Australian Fellowship. He said it depended on a number of circumstances including the perceived abilities, experience and references of the particular individual. We turn now to discuss the Complainant's primary claim that the Respondent unlawfully discriminated against him by declining to appoint him as a permanent VMO Anaesthetist. Since the Complainant alleges that the Respondent engaged in both direct and indirect discrimination we propose to consider the issue of direction discrimination first and to proceed only to a consideration of indirect discrimination if we make no finding that the Respondent directly discriminated against the Complainant. The Complainant's Unsuccessful Application for the Permanent Position: Direction Discrimination To support his claim that the Respondent directly discriminated against him by declining to appoint him to the permanent position, we understand the Complainant to be relying, first, on the remark made to him by Dr Noonan when he informed him that he had been unsuccessful; and, secondly, on a number of circumstantial matters which he maintains cast sufficient doubt on the genuineness of the reasons given by the Respondent so as to ground the inference that his Chinese origin was an operative factor in the decision not to appoint him. In order to determine this claim, it is first necessary to discuss the circumstances leading to the Respondent's decision to decline the Complainant's application and the reasons advanced by the Respondent for this decision. The documentation before us shows that the advertisement which appeared in the Sydney Morning Herald on 27 December 1990 is identical to the advertisement for a VMO Specialist Anaesthetist which the Complainant responded to in September 1990. Both advertisements specify the minimum qualifications as "FFARACS or equivalent". Although it is not entirely clear what the Respondent was prepared to accept as an equivalent qualification to the FFARACS, the evidence shows that, on the advice of the College of Anaesthetists, it accepted the Complainant's specialist qualifications from the United States as equivalent to the Australian Fellowship as far as entitlement to specialist status was concerned (our emphasis added). The other advertisement the Complainant responded to is a more general one specifying the qualifications required as "appropriate high degree, registered with NSQAC". The Complainant was, at the relevant time, recognised by the National Specialist Qualifications Advisory Committee (i.e NSQAC) as a specialist anaesthetist. Dr Noonan said this advertisement was just a "tidy up" procedure. In any event, we understand the Complainant's unsuccessful application to relate to the specific advertisement for a VMO Specialist Anaesthetist requiring the minimum qualifications to be "FFARACS or equivalent". According to the job description set out in this advertisement, the successful applicant would have been required to provide anaesthetic services to Wollongong, Port Kembla, Shellharbour and Bulli Hospitals and to participate in an after hours on-call roster service. The job description makes no mention of the need to have experience of the Australian training scheme. Unlike a VMO appointed to a private hospital, the appointment of the successful applicant would have been governed by the Public Hospitals Act 1929 and, most likely, would have been for a five-year period. Prior to the meeting of the MAAC on 25 February 1991, Dr Britton, the Acting Director of Medical Services in Dr Noonan's absence in January 1991, wrote to the Complainant on 18 January 1991 to confirm that his temporary appointment had been extended until 31 March 1991. She also asked him to liaise with another anaesthetist, Dr Boone, to arrange lists and to arrange to meet Dr Gregory, the Head of the Department of Anaesthetics. Her letter suggests that, as of 18 January 1991, the Complainant was still working as a temporary VMO and, aside from a period in February 1991 when he had a prior engagement overseas, he would continue to do so until the meeting of the MAAC. It is difficult to reconcile Dr Britton's letter with the Complainant's evidence that he only worked for the Respondent for a period of one month until approximately 11 January 1991. He said that he had not accepted any more work after this time. Whichever is the true position, it is unfortunate that the Complainant was unable to meet or talk with Dr Gregory. It is also unfortunate that the Respondent has no record of the Complainant furnishing the specific information requested by Dr Noonan in his letter of 29 November 1990, viz. the specific clinical privileges he required and a statement including his training and level of activity in all areas of specialist practice. The importance of the information was stressed by Dr Noonan at the conclusion of his letter when he stated that it was necessary for it to be completed in detail at least once for the purpose of securing a future appointment. The Complainant said that although he did not respond to Dr Noonan's letter, he thought he had subsequently given the information to either Dr Noonan or Dr Lim. Whether the Complainant did or did not furnish the Respondent with the information requested, we accept that he was casual in the way he presented his application. It is clear that he made no endeavour to include details of his relevant experience in either section D of his initial employment application dated 25 September 1990 or when initially requested to do so in writing by Dr Noonan. Instead, he appears to have assumed that it was the Respondent's responsibility to seek and clarify these details. When the Complainant was eventually interviewed by the MAAC on 25 February 1991, he presumably knew that there were no other applicants for the position. Given that there was no one else competing for the position and that there had been no complaints about his work during his temporary appointment, the Complainant may have mistakenly believed that he could afford to adopt a casual approach to the interview. In this regard we accept that he may not have fully comprehended the importance of presenting his application in its best possible light to the MAAC. Regrettably, he appears to have assumed that in the absence of any criticism of his work he would get the permanent position regardless of how he fared at the formal interview. It is apparent from the Minutes of the Meeting and Dr Noonan's evidence that the MAAC was a large committee comprised of members of the Board of the IAHS, the Respondent's Chief Executive Officer, Medical Staff Council Representatives, Dr Noonan, Professor Gibb who was the representative from the College of Anaesthetists, and representatives, including Dr Gregory, from the appropriate clinical divisions of the IAHS. The relevant item from the Minutes of the Meeting reads as follows: "Dr Stephen Hoy presented for interview. Professor Gibb indicated that his primary qualifications were acceptable to the F.F.A.R.A.C.S. for specialist appointment but that he was not a Fellow of the College of Anaesthetists. The committee considered at length the various options for filling a VMO position and it was resolved to recommend to the Board that the position not be filled at this time and that it be readvertised in the immediate future and that Dr Hoy be invited to apply." As mentioned earlier in this decision, the Complainant said that when Dr Noonan rang him to tell him that he had been unsuccessful he said that he could continue to work until such time as a "a real Aussie" applied for the position. Although we do not accept that Dr Noonan said this, we can readily understand how shocked and upset the Complainant must have been to discover that his application had been unsuccessful. Dr Noonan gave evidence that he told the Complainant that he was going to readvertise the position and that he should apply. He also said that he thought he had told him that " things hadn't gone very well at the interview" and that the Board had resolved to readvertise the position on the basis that they wanted, in preference, to appoint someone with the Australian Fellowship. Unfortunately, Mr Rasa's letter of 15 March 1991 makes no mention of the Complainant's performance at the interview. In an endeavour to explain this omission, Ms Redfern invited us to presume that the Respondent had not wanted to unduly offend the Complainant. The Complainant, on the other hand, denied that Dr Noonan had told him that the interview had not gone very well and submitted that the reason given by the Respondent that he did not have the Australian Fellowship was a sham to disguise the real reason, namely his Chinese origin. Significantly, it is the Respondent's case that there were five reasons why the Complainant was not appointed to the permanent position. They are as follows: ° He was not an impressive candidate ° He did not have sufficient experience in Australian teaching hospitals ° The position had not been sufficiently advertised ° He did not have the Australian Fellowship ° The Respondent was seeking to raise the standards of the Illawarra Regional Hospital so that it could be accredited as a teaching hospital. The Complainant submits that none of these reasons has any credibility and that they are relied on by the Respondent in order to mask its unlawful conduct. We discuss the Respondent's reasons below. The MAAC's Assessment of the Complainant's Personal Qualities Evidence was given by Professor Gibb that the MAAC did not consider the Complainant to be an impressive candidate. At the time he was both a Professor of Anaesthetics at the University of NSW and the Director of the Department of Anaesthetics at St George Hospital, but was on the MAAC in his capacity as a representative of the College of Anaesthetists. He said the Complainant did not present well at the interview and that it was the MAAC's view that he did not have the qualities it was seeking, particularly the enthusiasm to further the Respondent's objective of raising the standards of clinical reaching within the IAHS with a view to the establishment of accredited Registrar Training Posts. Indeed, in his view, even if the Complainant had presented with the Australian Fellowship, it would not have made any real difference to the Committee's decision. Dr Noonan, on the other had, expressed the view that if the Complainant had presented with the Australian Fellowship, he would not have been "knocked" back. However, when asked earlier in his evidence why the MAAC had not supported the Complainant's appointment, he said that he suspected that it was "largely" on the basis of his presentation at the interview. Had the Complainant been more forceful at the interview, he was inclined to believe that he would have been appointed. He said that the Complainant was "hopeless" at selling himself, that his responses to questions were not lengthy, assertive or "voluminous in the amount of information that was given", and that his responses "may have left more questions unanswered than answered". Dr Noonan's evidence suggests that with the probable exception of Dr Gregory, the rest of the Committee did not support the Complainant's appointment. In fact Dr Noonan said that this was the reason why he personally abstained from voting. His evidence also suggests that Dr Gregory showed more sympathy for the Complainant's position than the other members of the Committee because he himself did not have the Australian Fellowship. By way of contrast, Dr Noonan suggested that Dr Kroek, who was the other representative from the Division of Anaesthetics, did not support the Complainant because he was part of a group of recent VMO appointments within the Division who were pushing for all new VMO's to have the Australian Fellowship. It is the Complainant's case that the Respondent's finding that he was not an impressive candidate is merely an excuse invented for the very first time 4 years after his interview by the MAAC. He relies on the fact that this finding is not mentioned anywhere in the reasons given by Mr Rasa on 15 March 1991, the Minutes of the relevant MAAC and Credentials' Committee Meetings or in any of the documentary material prepared by the Respondent during the course of the ADB's investigation into the complaint. Moreover, he submits that because Professor Gibb was unable to recall the actual interview we should place no weight on his evidence. Somewhat surprisingly, the MAAC's finding that the Complainant was not an impressive candidate appears to have been based solely on his presentation at the interview. Dr Noonan gave evidence that the Respondent's staff had told him the Complainant was very quiet. However, there is no evidence to suggest that their views were discussed by the MAAC or that they influenced its deliberations. It is also surprising that the documentary material mentioned above does not make any reference to the Complainant's perceived personal shortcomings. No explanation was given to us for this omission. However, given Mr Rasa's letter of 15 March 1991 and Dr Noonan's evidence that he did not think the Complainant would have been unsuccessful if he had presented with the Australian Fellowship, one probable explanation is that this was not the decisive reason for declining to appoint him to the position (see later under "The Australian Fellowship and Accreditation as a Teaching Hospital"). Based on the evidence given by both Professor Gibb and Dr Noonan, we are satisfied that the MAAC did not find the Complainant to be an impressive candidate. True it is that Professor Gibb was unable to recall the actual interview. However, he said he could remember the deliberations which took place after the interview and his recollection of the MAAC's assessment of the Complainant's qualities is generally consistent with the views expressed by Dr Noonan in his evidence. In any event, even if we were to reject Professor Gibb's evidence, we have no difficulty accepting the evidence given by Dr Noonan on this point. Not surprisingly, given Dr Noonan's greater involvement in the events leading up to and following the interview, he was better able to recall the way in which the Complainant responded to the questions asked of him. Like Professor Gibb, he also said there was some discussion about whether the Complainant had the qualities required to implement the Respondent's training programme and, although he did not expressly say that he was an unimpressive candidate or that he lacked the enthusiasm required to implement the proposed training programme, we can readily infer this from his evidence. Prior Experience in Australian Teaching Hospitals In her letter to the Anti-Discrimination Board dated 7 September 1992, Dr Britton said that members of the MAAC had advised her that the information given by the Complainant led them to believe he lacked paediatric and neonatal experience and had not participated in teaching programmes for Resident Medical Officers and anaesthetic trainees since his return to Australia. Since his return from overseas in 1988, the Complainant said that he had worked as a locum Specialist Anaesthetist at only one teaching hospital, Royal Canberra and Woden Valley Hospital, for a period of 2-3 months. From 1989-1990, he had also worked at Bowral District Hospital for approximately 12 months as a Specialist Anaesthetist but this was not a teaching hospital. Dr Noonan said that at the interview members of the MAAC asked the Complainant questions about his experience as an Anaesthetist in America, that Dr Laing asked questions about his paedriatic experience, and that he thought Professor Gibb had questioned him about his training and experience since his return to Australia. Although the Complainant denied that he was asked any of these questions, we accept Dr Noonan's evidence on this point. In an interview lasting 15 minutes we do not accept that questions of this nature were simply not asked. Indeed, Professor Gibb gave evidence that the procedure that was followed by the MAAC seemed quite appropriate to him and was akin to that adopted by the Appointments' Committee at St George Hospital. He also said it was the practice at St George Hospital to readvertise a position if none of the candidates were considered suitable. Advertising of the Position The evidence shows that between August 1990 and 25 February 1991, the Respondent placed three advertisements in the Sydney Morning Herald seeking VMO Specialist Anaesthetists. The first advertisement, which appeared in August 1990, was a general one seeking VMO Specialists in a number of areas including Anaesthetics and the remaining two, which appeared in September 1990 and December 1990, were more specific seeking VMO Specialist Anaesthetists only. The only application for a VMO Anaesthetist in response to the three advertisements was that submitted by the Complainant in September 1990. In these circumstances, we see no reason to doubt the credibility of the Respondent's assertion that it wished to readvertise the position in order to attract a wider pool of applicants. The Australian Fellowship and Accreditation as a Teaching Hospital There is no dispute that the MAAC considered the Complainant's American specialist qualifications to be acceptable for the position. However, as part of the Respondent's objective for the Illawarra Regional Hospital to attain status as a teaching hospital by the establishment of training positions supported by the Australian College of Anaesthetists, Dr Noonan said the MAAC felt it was desirable for the position to be filled by a specialist with the Australian Fellowship. He said the MAAC preferred this qualification for the following reason: "[It] would ensure that the specialist would have first hand experience of the Australian training scheme and would therefore have the understanding of the requisites for training medical officers and anaesthetic registrar for higher degrees." This explanation is consistent with Dr Britton's letter to the ADB dated 7 September 1992 and the Minutes of the MAAC meeting held on 3 August 1992. Professor Gibb said the MAAC's deliberations focused on the Respondent's desire to improve the standard of its registrar training with a view to the establishment of accredited Registrar Training Posts. However, as mentioned earlier in this decision, he said that even if the Complainant had presented with the Australian qualification, he did not think it would have made any real difference to the MAAC's decision. His recollection of the assessment made by the MAAC was that the Complainant's personal shortcomings were such that he would not have been suitable in any event. Professor Gibb's recollection of the MAAC's deliberations is clearly at odds with that given by Dr Noonan. Dr Noonan said that had the Complainant presented with the Australian qualification, he did not think the MAAC would have declined to appoint him. This view is consistent with the formal explanation for declining the Complainant's application given by Mr Rasa on 15 March 1991. Given that Mr Rasa's letter was written shortly after the interview, that Professor Gibb's recollection of events was not as clear as Dr Noonan's and that, as an external member of the MAAC he had less involvement in the deliberations, we are inclined to prefer the evidence given by Dr Noonan on this point. It follows from this finding that the decisive, but by no means the only, reason for not appointing the Complainant to the position was the fact that he did not have the Australian Fellowship. In circumstances where his specialist qualifications were regarded as acceptable for the position and his professional competence had not been questioned, the Complainant submits that this reason is a sham. He relies on a number of matters to support this submission. We summarise them below: 1. None of the advertisements for a VMO Specialist Anaesthetist, including those which appeared after the Complainant had been rejected for the position, stipulated "FFARACS only" or "experience of the Australian training scheme". 2. When responding to the Complainant's application, neither Dr Noonan nor Dr Lim mentioned the requirement that he have the Australian Fellowship or experience of the Australian training scheme. 3. The Minutes of the MAAC's meeting on 25 February 1991, when the decision was made to decline the Complainant's application, are equally silent on this point. 4. Only 41% of the Respondent's specialist anaesthetists had the Australian qualification. 5. The successful applicant for the position who was selected in August 1991 did not have the Australian qualification, nor did another VMO Anaesthetist appointed in 1992. 6. Five of the Respondent's anaesthetists had no specialist qualifications at all, including the anaesthetist appointed in 1992. 7. 71% of the Respondent's anaesthetists did not have experience in Australian teaching hospitals. 8. The evidence does not show that the appointment of anaesthetists with the Australian qualification either did facilitate or would have facilitated accreditation. 9. The Complainant's specialist qualifications from America satisfied the College's own requirements for the establishment of accredited training posts. 10. There were no Chinese anaesthetists in the Department of Anaesthetics. 11. The Respondent was, and still is, a community area health service in the Illawarra area. It is not a teaching hospital. Ms Redfern submits that the Complainant's submissions are flawed because they seek to elevate the Respondent's preference for the Australian Fellowship to a policy. She denies that this preference was a sham and relies primarily on the evidence given by Professor Gibb, Dr Noonan and Dr Loughman, a Senior Staff Specialist in Anaesthesia at the Prince of Wales Hospital, who gave evidence in his capacity as Chairman of the NSW Regional Committee of the Australian and New Zealand College of Anaesthetists. Before examining the Complainant's individual submissions, it is convenient to consider the credibility of the Respondent's reasons for "preferring' the Australian qualification. According to Dr Noonan, as of February 1991, the Board of the IAHS was a significant way through a process of rationalising the organisation of the hospitals under its authority with a view to establishing the Illawarra Regional Hospital as a teaching hospital. This evidence is supported by the Minutes of the MAAC meeting held on 3 August 1992 and Professor Gibb's evidence. Dr Loughman also expressed the view, which we accept, that although the expression "teaching hospital" has several meanings, in the context of the present case it relates to the training of anaesthetic trainees as part of a programme approved by the College rather than the training of undergraduates. Dr Loughman gave evidence that, as of February 1991, if a Department of Anaesthesia wished to establish an accredited Registrar Training Post, it needed to comply with certain minimum requirements laid down by the College. Like Dr Noonan, he said the appointment of a VMO Anaesthetist who had the Australian Fellowship (as opposed to some other specialist qualification) would have facilitated the establishment of such a Post. He gave two reasons for this. First, it would have provided a larger pool of anaesthetists from which a single Supervisor of Training, acceptable to the College, could be drawn. Ms Redfern submits that this is consistent with clause 2.3 of the College's Guidelines entitled "Guidelines for Hospitals Seeking Faculty Approval of Posts For the First Four Years of Vocational Training in Anaesthesia", viz, "There must be adequate supervision by specialist anaesthesia staff who possess the FFARACS or a qualification acceptable to the Board." Dr Loughman also said that, from the College's viewpoint, the Australian qualification was "very much the preferred qualification" for not only the supervisor of Training but all the senior members of a Department participating in the training programme. As of February 1991, he said the practical effect of this was that the greater the number of anaesthetists with the Australian qualification attached to a particular hospital the more likely it was that the College would grant accreditation. When asked to comment specifically on whether the Complainant's qualifications would have facilitated accreditation, Dr Loughman said that because the training in the United States was considerably different to that undertaken in Australia, his qualifications would have been viewed less favourably than the Australian qualification for two main reasons. First, holders of the Australian Fellowship were more familiar with the Australian training programme including the preparation of trainees for examinations and secondly, they were more likely to provide a sound training environment upon which trainees could model their practice. Nonetheless, in keeping with clause 2.3 of the College's Guidelines set out above, he said that in circumstances where a hospital is quite small and there are very few senior anaesthetists to teach the trainees, other specialist qualifications may be regarded as acceptable. He considered, however, that this principally related to a single Supervisor of Training and he could not envisage a situation where accreditation would be granted if there were no staff members with the Australian qualification. His evidence also suggests that because the Australian training has been modelled on, and developed parallel with, the system in the United Kingdom rather than the system in the United States, the Complainant would have less familiarity with the Australian system than holders of the English qualification. Although Dr Loughman did not know what the position would have been in February 1991, he said that if the Complainant were to apply for the Australian Fellowship now he would probably be required to undergo a 24-month training programme consisting of 12 months in an accredited training position, a pass at the final exam, and possibly 12 months in a provisional Fellowship Post followed by a post Fellowship exam. He said there were no waiting lists for the final Fellowship exam or, thereafter, for trainees to complete their training. Surprisingly, he did not know whether there was a waiting list for the entry training positions. Professor Gibb was able to shed some light on the matter. When asked to comment on the assertion made by the Complainant that he had found it "impossible" to get an accredited training position because of the long waiting lists, he said there was a definite limitation on the number of positions available. Based on Dr Loughman's evidence, we are satisfied that while the Complainant's American qualifications were accepted by the College as equivalent to the Australian Fellowship as far as specialist status and patient management were concerned, they were not viewed as equivalent in respect of the training undertaken. Indeed, were they viewed as equivalent in this respect, it would not have been necessary for the College to require the Complainant to undergo further training in order to attain the Australian Fellowship. We do not accept the Complainant's submission that Dr Loughman was not qualified to give evidence on this point. Given his position as Chairman of the NSW Regional Committee of the College and that he spent 15 months as an instructor at the University of Michigan, we accept that he was qualified to make the assessment that the American training was considerably different. We note that in making this assessment he did not suggest that the American system was inferior in any way. We now turn to discuss the extent to which the matters relied on by the Complainant cast doubt on the credibility of the evidence given by the Respondent's witnesses. We comment initially on the first two matters set out earlier in this decision. Given the concern of the majority of the MAAC on 25 February 1991 that the successful applicant have the Australian Fellowship, and therefore experience of the Australian training system, it is unfortunate that it was not adequately expressed in the advertisement for the position or communicated by either Dr Noonan or Dr Lim in their discussions with the Complainant leading up to the interview. This does not reflect favourably on the Respondent and gives the Complainant every reason to feel a deep sense of injustice. We do not, however, conclude from it that the Respondent's preference for the Australian Fellowship was a sham. Rather, we conclude that there was insufficient thought given to the matter by Dr Noonan and insufficient liaison between him and the various members of the MAAC prior to the Complainant's formal interview. In relation to the third matter, it is correct that the Minutes of the MAAC meeting on 25 February 1991 do not expressly mention the Respondent's "preference" for the Australian Fellowship. However, an analysis of other MAAC minutes shows that on other occasions when applicants have been unsuccessful no reasons were given either. In relation to the fourth to seventh matters, true it is that at the relevant time 59% (10 out of 17) of the Respondent's anaesthetists did not have the Australian Fellowship. Ms Redfern submits that the majority of these anaesthetists had practised in the Illawarra region for a number of years prior to being appointed to the IAHS and all had extensive experience in the Australian hospital system. While we accept this submission, we note that many of them did not have experience in Australian teaching hospitals. The evidence also shows that of the 5 anaesthetists who held the English qualification, the doctor who was ultimately selected for the position in August 1991 is the only one who did not have a history within the IAHS. He, however, had considerable practical and teaching experience in Australian hospitals and had been the Director of the Intensive Care Unit at Lidcombe Hospital. The Minutes of the MAAC held on 5 August 1991 show that he was one of two doctors who applied for the position. The Minutes do not make any mention of the qualifications, experience or racial origin of the other applicant, nor do they state why he/she was unsuccessful. We are of the view that a detailed analysis of those appointments made prior to 25 February 1991, including those where the successful applicants had no specialist qualifications, is of limited assistance in determining the credibility of the Respondent's "preference" for the Australian Fellowship. This is because De Noonan said that by February 1991 the Respondent was a significant way through the process of rationalizing the organisation of the various hospitals under its control with a view to attaining teaching hospital status by having, in effect, one hospital on multiple campuses. At the time of the Complainant's interview we are satisfied that the Board, the non-medical executive and the younger anaesthetists within the Division of Anaesthetics who were campaigning for all future VMO appointees to have the Australian Fellowship, were particularly keen to see this vision become a reality because the Respondent's plans for a teaching hospital diagnostic services block had been approved and an application for a $50 million grant had been made to the Government to carry out the plans. However, as clarified by Dr Noonan's evidence, it was obviously necessary for the various hospitals under the Respondent's control to keep operating. We are satisfied that by August 1991 when the vision had still not become a reality, the competing demands of providing anaesthetists to ensure that operating theatres and casualty and obstetric wards remained open meant, in effect, that the need to fill the position became more urgent. Similarly, when the second appointment was made in 1992 the Respondent had still not attained teaching hospital status. The woman who was appointed to the position did not have the Australian Fellowship either. However, the documentation included in her application suggests that she had concluded the entry training requirements for the Fellowship but, due to family difficulties, had not sat for the final exam. In relation to the seventh matter, it is not clear how many of the Respondent's anaesthetists did not have Australian teaching hospital experience prior to being appointed. The Complainant submits that 71% (12 out of 17) did not have any. However, this figure is probably inflated because it does not take into account the fact that those anaesthetists who held the Australian Fellowship must have had experience in Australian teaching hospitals. Whichever is the correct figure, we accept that considerably less than 50% had any such experience. However, in our view, this supports the Respondent's case because it is consistent with the Respondent's goal of increasing the number of its anaesthetists who held the Australian Fellowship and who therefore had adequate experience of the Australian teaching hospital system. In relation to the eighth matter, we do not accept the Complainant's contention that the appointment of anaesthetists with the Australian Fellowship had not in the past, and would not have in the future, facilitated accreditation. First, there is no evidence that, as of February 1991, the Respondent had ever sought accreditation from the College. Secondly, based on the evidence of Dr Noonan, Dr Loughman and Professor Gibb, we are satisfied that the Respondent genuinely and reasonably believed that the appointment of anaesthetists with the Australian Fellowship would have facilitated accreditation. In relation to the ninth matter, it is not entirely clear whether at the relevant time the Complainant's qualifications would have satisfied the College's minimum requirements, as set out in Clause 2.3 of the College's Guidelines, for the establishment of an accredited training post in a hospital complex the size of the Respondent. While it is clear that the Complainant's qualifications were regarded as the equivalent of the Australian Fellowship as far as entitlement to specialist status was concerned, we accept Dr Loughman's evidence that they were not regarded as the equivalent as far as training was concerned. As mentioned earlier, had they been the equivalent, it would obviously have been unnecessary for the Complainant to complete further training in order to attain the Fellowship. In relation to the tenth matter, we do not accept the Complainant's submission that because there were no Chinese anaesthetists in the Department we should conclude that there has been systemic discrimination within the IAHS against doctors of Chinese origin. He asserts that it is usual to have a large representation of Chinese doctors in radiology and anaesthetic practice. However, there is no evidence that at the relevant time this was the case in the Illawarra region. There is also no evidence that anaesthetists of Chinese or Asian origin were rejected by the Respondent or that they ever applied for VMO positions within the IAHS. The fact that the Respondent did not keep records of unsuccessful applicants in the period 1988-1992 is not surprising and we draw no adverse inference from it. In stating that during his appointment he had no concern about hiring doctors of Chinese or Asian origin, Dr Noonan referred to the appointment of Drs Jaimon and D'Sena, who were of Sir Lankan and Indian origin respectively. Significantly, both were anaesthetists in the Divisions of Anaesthetics at the relevant time. Dr Noonan also gave evidence that there were a number of other doctors of Asian origin who had been appointed to the IAHS prior to February 1991, including several of Chinese origin. In relation to the final matter, it is clear that the Respondent has still not attained the status of a teaching hospital. However, we accept that at the relevant time it was a genuine vision which had, as Dr Noonan explained, really "started to steamroll" because the NSW Government had approved plans for a teaching hospital diagnostic services block. We also accept that at the relevant time there was a campaign within the IAHS for all future VMO appointees to the Division of Anaesthetics to have the Australian Fellowship because it was considered that this would facilitate accreditation and, thereby, ensure that the Respondent attained teaching hospital status. The genuineness of this view was confirmed by Dr Loughman's evidence that the College very much preferred the Australian Fellowship. It follows from the above analysis that we are not satisfied that the Respondent's "preference" for the Australian qualification was a sham. Notwithstanding this, we acknowledge that the Complainant may have felt a deep sense of injustice because there were occasions both prior to and following his rejection when anaesthetists were appointed to the Division of Anaesthetics as VMO's even though they did not have the Australian Fellowship. This suggests that the Complainant was less favourably treated. However, there is no evidence to suggest that an operative ground of this disparate treatment was the Complainant's racial origin or a characteristic generally pertaining to or generally imputed to his race. In this regard, we accept the evidence of Dr Noonan and Professor Gibb that the Complainant's Chinese origin was neither discussed nor taken into account by the MAAC when considering his suitability for the position. Significantly too, the evidence does not disclose the presence of any systemic discrimination within either the Division of Anaesthetics or the Respondent generally against persons of Chinese origin. We now turn to discuss the Complainant's submission that by drawing a distinction between his American qualifications and the Australian Fellowship, the Respondent unlawfully discriminated against him on the basis of his racial origin. In support of this submission he relies on the decision of the Victorian Equal Opportunity Board in Murray v Ministry of Education (1992) EOC 92-469. In that case, the Complainant was a teacher of Indian racial origin who had obtained her teaching and academic qualifications in India. When she sought employment and registration with the Victorian Ministry of Education she was advised that, while her qualifications were acceptable, she would be required to do a further Bachelor of Arts at a Victorian academic institution. After completing this, she was then registered with the relevant Ministry and assigned a teaching position at a high school. The Board found that she was treated less favourably by the other staff at the school, and that this less favourable treatment was solely or substantially based on the fact that her ethnic origin and qualifications were Indian rather than Australian. The facts of the present case are quite different. Had the Complainant been admitted as a Fellow of the College and still been rejected for the position, he may have been able to successfully argue that because he was of Chinese origin and had first obtained his specialist qualifications in a country other than Australia, he had been unlawfully discriminated against on the ground of his race. However, there is no evidence in the present case that the Complainant's racial origin, as distinct from the nature of the training he had undertaken, was either a reason for the Respondent's "preference" for the Australian Fellowship or for the College's decision requiring him to undergo further training before admitting him as a Fellow. Moreover, there is no evidence that such admission is ever dependent upon an applicant's race. Any doctor who applies for membership and satisfies the conditions of the College can obtain the Fellowship. In fact, the evidence suggests that an anaesthetist of Australian racial origin who obtained his specialist qualifications in America and sought admission to the College would be treated in exactly the same way as the Complainant. The facts of the present case are more akin to those in Ebber v Human Rights and Equal Opportunity Commission & Ors (1995) EOC 92 - 709, where the Federal Court held that discrimination based on the quality of a person's educational qualifications did not amount to unlawful discrimination based on the person's national origin. In that case the applicants were German nationals who held German academic qualifications in architecture. Against a background where the academic standard of architectural qualifications from various German institutions had been fully assessed by the local registering authority, the applicants were advised that their qualifications were not equivalent to an Australian architectural degree. In circumstances where some, but not all, architectural qualifications from German institutions were recognised officially in Queensland, the Court held that a refusal of the relevant authority to recognise the applicants' qualifications did not amount to either direct or indirect discrimination within the meaning of s.9(1) or s.9(1A) of the Racial Discrimination Act 1975 (Cth). See also Australian Medical Council v Wilson & Ors (1996) 137 ALR 653. Accordingly we are not satisfied that, pursuant to s.7(1) of the Act, the Respondent directly discriminated against the Complainant in breach of s.8(1). We turn now to discuss the Complainant's case that the Respondent indirectly discriminated against him by requiring him to have the Australian Fellowship. The Complainant's Unsuccessful Application for the Permanent Position: Indirect Discrimination Pursuant to s.7(2) of the Act, the Respondent can only be said to have discriminated against the Complainant in contravention of s.8(1) if it has required him to comply with "a requirement or condition" - ° with which a substantially higher proportion of persons of non-Chinese origin comply or are able to comply (para (a)); ° which is not reasonable having regard to the circumstances of the case (para (b)); and ° with which the Complainant does not or is not able to comply (para (c)). Before considering each of the criteria specified above, we must first determine whether the Respondent imposed the alleged requirement on the Complainant within the meaning of s.7(2). Although Ms Redfern's submissions do not expressly deal with this issue, it is the Respondent's case that the alleged requirement was simply one of several relevant factors taken into account in the selection process. While this does not preclude us from making a finding that the alleged requirement was imposed, it does, in our view, highlight the importance of formulating the actual requirement with some care. See Dawson J's remarks in Banovic (supra) at EOC p.77, 737. Cf Waters & Ors v Public Transport Corporation (1991) EOC, 92-390. This does not mean, however, that the phrase "requirement or condition" should be given a narrow interpretation. On the contrary, the reported cases which have analysed the phrase when considering comparable legislation have consistently interpreted the phrase in a liberal way so as to ensure that the objects of the legislation are fulfilled. For example, in Banovic (supra) at EOC p.77, 737, Dawson J said: "Upon principle and having regard to the objects of the Act, it is clear that the words "requirement or condition' should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees..." See also McHugh J's expansive definition in Waters (supra) at EOC p.78, 701. As one commentator has noted, the approach adopted in the reported cases is in keeping with the general purpose of indirect discrimination provisions which is to eliminate a wide range of employment practices and policies that have a disproportionate impact on disadvantaged groups (see Hunter R, "Indirect Discrimination in the Workplace", The Federation Press 1992, at p.194). Importantly too, something falling short of an absolute bar to selection may be characterised as a requirement or condition. In The Secretary of the Department of Foreign Affairs and Trade v Styles and Anor (1989) EOC 92-625 applications were called from two grades of journalists for a London posting although, in reality, only applicants from the higher grade were considered for the position. In their joint judgment at EOC p.77,638, Bowen CJ and Gummow J defined a requirement or condition as "a stipulation which must be satisfied if there is to be a practical (and not merely a theoretical) chance of selection". This passage was cited with approval by McHugh J in Banovic (supra) at EOC p.77, 737. See also Styles v Commonwealth of Australia (1995) EOC 92-706 at p.78, 319. In relation to the present case, we accept that the absence of the Australian Fellowship did not operate as an absolute bar to the position. Indeed, had this been the case, it is reasonable to expect that the Complainant would not have been interviewed for the position in the first place. Nonetheless, it is important to look at the way in which the Respondent's "preference" for the Australia qualification operated in practice: see Styles (1989) EOC 92-625 at p.77, 638. The oral evidence of Dr Noonan indicates that, as at February 1991, in view of the Respondent's focus on its goal of attaining teaching hospital status, the Complainant would have been successful if he had presented with the Australian Fellowship. Accordingly, taking into account the need to construe the Act beneficially, we are satisfied that at the relevant time the practical effect of the Respondent's "preference" for the Australian Fellowship was that the alleged requirement was imposed on the Complainant within the meaning of s.7(2) of the Act. In making this finding, we have also had regard to Mr Rasa's letter of 15 March 1991 and to our earlier finding that the fact that the Complainant did not have the Australian qualification was the decisive reason for not appointing him to the position. Was the Complainant able to comply? Adopting a strictly literal approach, it could be said that although the Complainant was unable to comply with the relevant requirement at the time of the interview by the MAAC, he would have been able to comply at some future time had he been successful in gaining entry to an accredited training programme. Relying on Dr Loughman's evidence, Ms Redfern submits that it would not have been difficult for the Complainant to obtain supervised training or to sit for the final Fellowship exam. However, a close analysis of Dr Loughman's evidence suggests that he was referring to the availability of supervised training positions after the final exam rather than entry training positions. Professor Gibb's evidence on this point suggests that it would have been difficult for the Complainant to obtain an entry training position because of the definite limitation on the number of such positions available. We accept that at some future point in time the Complainant might have been able to comply with the requirement in question. However, the reported cases show that the criterion should be interpreted in a practical sense and that the words "is not able to comply" should not be construed as referring to possible compliance at some indefinite time in the future. For example, in Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (supra) at EOC p.77, 238, Wilcox J held that, in practice, Ms Styles could not comply with the requirement that she be a Grade A2 journalist, even though she might have been able to do so at some future point in time. See also Australian Medical Council v Wilson & Ors (supra); Mandla v Dowell Lee (1983) 2AC 548; Steel v Union of Post Office Workers (1978) 1 WLR 64 at p.70; and Price v Civil Service Commission (1977) 1 WLR 1417. In the present case, we are satisfied that because the Complainant was unable to comply with the requirement imposed on him at the time it had to be met, he was unable to comply with the requirement within the meaning of s.7(2)(c). Were a substantially higher proportion of non-Chinese persons able to comply? This criterion is usually referred to as the proportionality test. Its purpose is to determine whether the requirement in question impacts more harshly on people of Chinese origin than it does on people of a different status. Although the Act does not say how the relevant proportions are to be calculated, it is clear that an appropriate base group must be selected so as to reveal whether race is a significant factor in the Complainant's ability to comply with the requirement in question. In Banovic (supra), to succeed in their indirect discrimination claim the women had to show that a substantially higher proportion of men than women could comply with the company's requirement that employees must have commenced employment before a specified date or otherwise be retrenched. This required a comparison between two proportions which in turn required the establishment of an appropriate base pool comprising all persons employed after the date of application of the last woman retrenched. The formulation of the base group adopted by the majority of the High Court revealed that sex was, in fact, significant to compliance with the requirement imposed. The majority decision in Banovic makes it clear that the actual choice of the base group will be a matter for the relevant tribunal and may vary according to the circumstances of the case, the nature of the requirement or condition and the context in which it was imposed. In relation to the present case, we are prepared to assume that an appropriate base pool is one comprising all specialist anaesthetists within NSW, as at 25 February 1991. However, there is no evidence that a substantially higher proportion of specialist anaesthetists of non-Chinese origin comply or are able to comply with the relevant requirement. In other words, there is no evidence that the imposition of the relevant requirement had a disproportionate adverse impact on specialist anaesthetists of Chinese origin. In our view, this cannot be inferred simply because the Fellowship is an Australian specialist qualification, nor can it be inferred from Exhibit 5. This document is an analysis of a survey of specialist anaesthetists conducted by the Department of Health in 1993. It compares the country of primary medical qualification with the languages used professionally in patient encounters. However, it is of limited assistance to the Complainant's case on this point. First, it says nothing about the actual racial origin of the specialist anaesthetists who answered the survey. As illustrated by the facts of the present case, it cannot be assumed that because a doctor obtained his primary medical qualification in Australia that he/she is of Australian racial origin or vice versa. Secondly, the analysis does not show the other languages spoken by the specialist anaesthetists. It refers only to languages used professionally in patient encounters. If, say, a doctor of Chinese origin operates in an area where there are no or few Chinese speaking patients, then he /she may appear in the group the Complainant refers to as "White Australians" if he/she has also obtained his primary qualification from Australia. Thirdly, the analysis shows that some of the specialist anaesthetists whose country of primary medical qualification was Australia spoke a variety of languages with their patients including French, German, Hungarian and Chinese, whereas others whose primary qualification was from a country other than Australia did not speak any language, other than English, to their patients. In view of the lack of evidence in relation to this criterion, we are not satisfied that the Complainant has established that the Respondent discriminated against him in contravention of s.8(1) of the Act. In the event that we are wrong in deciding against the Complainant on this point, we consider below the remaining criterion specified in s.7(2), namely whether the requirement was a requirement which was "not reasonable having regard to the circumstances of the case" (para (b)). Was the requirement reasonable? Unfortunately, there is no guidance in the Act as to what factors are to be taken into account when considering this criterion. However, since the decision of Waters (supra), there can be no doubt that in considering the reasonableness of the requirement, all the circumstances of the case must be examined. In Waters, the majority of the High Court held that the word "reasonable" in s.17(5)(c) of the Victorian Act should be understood as meaning "reasonable in all the circumstances of the case". (Unlike s.7(2)(b) of the NSW Act, the Victorian Act simply required the Board to consider whether the requirement or condition was "reasonable"). Thus, the majority considered that all relevant factors, including economic and financial considerations, should be taken into account. In their joint judgment at EOC pp. 78, 694 - 78, 695, Dawson and Toohey JJ adopted the test applied by Bowen CJ and Gummow J in Styles (1989) EOC 92-265 a p.77, 642 (when considering s.5(2)(b) of the Sex Discrimination Act 1984 (Cth) which is comparable to s.17(5)(c)), viz: "(T)he test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account." In Waters, McHugh J was the only member of the High Court to specifically address the issue of who bears the onus of proving a breach of s.17(5)(c). Although it was common ground between the parties in that case that the onus was on the Corporation to produce evidence to show that the requirements in question were reasonable, his Honour took the view that the concession had not been correctly made and that a Complainant bears the onus of proof in relation this issue: see EOC at p.78, 703. In relation to the present case, while we accept that the Complainant bears the onus of proof in respect of s.7(2)(b), nonetheless the criterion is an objective one calling for a consideration of the evidence from both the Complainant's perspective and the Respondent's perspective: see Woods v Wollongong City Council & Ors (1993) EOC 92-486 at pp.79, 507-79, 508. The only reason advanced by Ms Redfern in support of the reasonableness of the requirement is that the appointment of an anaesthetist with the Australian Fellowship would have facilitated accreditation from the College. She submits that because the Respondent operated within the Australian hospital system and was seeking accreditation in order to obtain teaching hospital status, any other considerations such as the comparable advantages or strengths of the American, as opposed to the Australian, training and qualifications are irrelevant. In submitting that the requirement was unreasonable, the Complainant relies on the matters advanced by him to support his case that the Respondent's "preference" for the Australian Fellowship was a sham, as well as two additional matters. First, that the requirement was not essential for the proper conduct of the Respondent's business of providing anaesthesia services to the Illawarra area; and secondly, the requirement would not have attracted any financial or economic benefits to the Respondent. Taking into consideration all the relevant factors, including the considerable detriment caused to the Complainant, we are not satisfied that the Complainant has established that the requirement was unreasonable within the meaning of s.7(2)(b). We are satisfied that the Respondent imposed the requirement because it genuinely and reasonably believed that it would facilitate accreditation from the College. In this regard we accept that the Respondent's goal was to attain teaching hospital status and, thereby, to improve the standards of clinical teaching and medical care available within the hospitals under its control. While we acknowledge that the requirement was not essential for the immediate management of individual patients, we reject the Complainant's submission that it would not have attracted any financial or economic benefits to the Respondent. Had the goal of attaining teaching hospital status been realised, we accept that it is highly likely that financial and other benefits, both tangible and intangible, would have flowed from it. Finally, there is no evidence that in order to obtain the Australian Fellowship the complainant would have been required to meet a higher standard than the standard already met by other Fellows. In Australian Medical Council v Wilson & Ors (supra), an overseas trained doctor of Indian national origin had been denied registration in Australia as a medical practitioner. Although he was able to satisfy the minimum written examination requirements, he failed to secure a place in the quota set by the Australian Medical Council on overseas trained doctors seeking registration in Australia. This meant that he was unable to sit for the clinical examination and become a registered practitioner. The Commission found that the imposition of the quota amounted to indirect discrimination within the meaning of s 9(1A) of the Racial Discrimination Act 1975 (Cth) because overseas trained doctors had to satisfy more than the minimum requirements to sit for the clinical examination and become registered. This decision was overturned by the Federal Court on the basis that the Commission had incorrectly reversed the onus of proof. Heerey J (with whom Black CJ and Sackville J agreed) said, at p. that the onus remained on the Complainant to show that the relevant term, condition or requirement was unreasonable, in the sense of being irrational, illogical or not understandable. In allowing the appeal, Heerey J said, at p. that once it was accepted, as the Commission did, that a quota of 200 could be lawfully imposed, it was impossible to say that it was not a rational application of that quota to select the first 200 candidates in order of merit from the written exam. It follows from our analysis above that we are not satisfied that the Complainant has established the criterion specified in s.7(2)(b). Accordingly, we are not satisfied that the Respondent indirectly discriminated against him by requiring him to have the Australian Fellowship. We order that the complaint be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.