CERD/C/54/D/8/1996

UNITED

NATIONS

CERD

International Convention on

the Elimination

of all Forms of

Racial Discrimination

Distr.

RESTRICTED*

CERD/C/54/D/8/1996

10 May 1999

Original: ENGLISH

COMMITTEE ON THE ELIMINATION

OF RACIAL DISCRIMINATION

Fifty-fourth session

1-19 March 1999

OPINION

Communication No. 8/1996

Submitted by:

B.M.S. (represented by counsel)

Alleged victim:

The author

State party concerned:

Australia

Date of communication:

19 July 1996 (initial submission)

Date of adoption of

Committee's opinion:

12 March 1999

* Made public by decision of the Committee on the Elimination of Racial

Discrimination.

GE.99-41708 (E)

CERD/C/54/D/8/1996

page 2

ANNEX

OPINION OF THE COMMITTEE ON THE ELIMINATION

OF RACIAL DISCRIMINATION

- FIFTY-FOURTH SESSION -

concerning

Communication No. 8/1996

Submitted by:

B. M. S. [represented by counsel]

Alleged victim:

The author

State party concerned:

Australia

Date of communication:

19 July 1996 (initial submission)

The Committee on the Elimination of Racial Discrimination, established

under article 8 of the International Convention on the Elimination of All

Forms of Racial Discrimination,

Meeting on 12 March 1999,

Having concluded its consideration of communication No. 8/1996,

submitted to the Committee under article 14 of the International Convention

on the Elimination of All Forms of Racial Discrimination,

Having taken into consideration all written information made available

to it by the author and the State party,

Bearing in mind rule 95 of its rules of procedure requiring it to

formulate its opinion on the communication before it,

Adopts the following:

OPINION

1.

The author of the communication is B.M.S., an Australian citizen

since 1992 of Indian origin and a medical doctor. He claims to be a victim

of violations of the Convention by Australia. He is represented by counsel.

The facts as submitted by the author

2.1

The author graduated from Osmania University (India). He holds a

diploma in Clinical Neurology (DCN) from the University of London. He has

practised medicine in England, India, Ireland and the United States. For

10 years he has worked as a medical practitioner under temporary registration

in Australian public hospitals.

2.2

The author states that doctors trained overseas who have sought medical

registration in Australia have to undergo and pass an examination involving

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two stages, a multiple choice examination (MCQ) and a clinical examination.

The whole process is conducted by the Australian Medical Council (AMC), a

non-governmental organization partly funded by the Government.

2.3

In 1992, the Australian Minister of Health imposed a quota on the number

of doctors trained overseas who pass the first stage of this examination. As

a result, doctors who were trained abroad and who are Australian residents and

Australian citizens may not be registered precisely because they fall outside

the quota. On the other hand, quota places may be allocated to persons

without any immigration status in Australia.

2.4

Following the imposition of the quota system the author sat the MCQ

examination on three occasions. He satisfied the minimum requirements but was

always prevented, by the quota system, from proceeding to the clinical

examination.

2.5

In March 1993, the author filed a formal discrimination complaint with

the Australian Human Rights and Equal Opportunity Commission (HREOC) against

the quota and the examination system. In August 1995, the Commission found

the quota policy unlawful under the Australian Racial Discrimination Act,

considering it “grossly unfair, resulting in unnecessary trauma, frustration

and a deep sense of injustice”. As regards the examination system, the

Commission held that the decision to require the author to sit for and pass

examinations was not based on his national origin or on the consideration that

he was a person not of Australian or New Zealand origin.

2.6

The Australian Government and the AMC appealed the decision of

the HREOC. On 17 July 1996, the Federal Court of Australia ruled in their

favour, finding that the quota and the examination system were reasonable.

2.7

The author did not appeal this decision to the High Court of Australia.

According to counsel the appeal to the High Court is not an effective remedy

within the meaning of article 14, paragraph 7 (a), of the Convention. On the

one hand, there is no automatic right of appeal to the High Court, since the

Court must first grant special leave to appeal. On the other hand, the

High Court has consistently stated that a prima facie case of error will not

of itself warrant the granting of an application for leave to appeal. There

must be some special feature which warrants the attention of the Court, with

its public role in developing and clarifying the law and in maintaining

procedural regularity in the lower courts, outweighing the private rights of

litigants.

2.8

Furthermore, the author did not have the means to pursue the appeal

without being awarded legal aid, and a cost order would be imposed on him if

the appeal was unsuccessful. In fact, on 28 October 1996 Legal Aid advised

that it would not fund the author's appeal to the High Court.

2.9

In subsequent submissions counsel indicates that following HREOC's

decision and notwithstanding that an appeal had been lodged, the AMC decided

to abandon the quota. As a result all overseas-trained doctors (OTDs) who,

like the author, have met the minimum requirements of the MCQ examination but

have been prevented from doing so by the quota, are now allowed to undertake

the clinical examination. The author has attempted the clinical examination

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on several occasions. The examination has three components and it is

necessary to pass all the components at the one sitting. The author has

passed each component at least once but not all three at the same sitting.

2.10

The standard of the AMC examination is supposedly that of an

Australian-trained medical student who is about to commence an intern year.

Counsel states that it is objectively preposterous that a person of the

author's experience, with 13 years working as a doctor and 8 years in the

Australian health system, is not at least of the standard of a newly graduated

medical student.

2.11

Studies on Australian medical graduates show serious deficiencies in

clinical skills. For example, a University of Queensland study published

in 1995 indicates that at the commencement of the intern year, medical staff

did not consider all graduates competent even in history-taking and

clinical-examination skills and most graduates were not considered competent

in such areas as diagnosis, interpreting investigations, treatment procedures

and emergency procedures. At the conclusion of the intern year, only

45 per cent of medical staff considered all interns competent at

history-taking and only 36 per cent of medical staff considered all interns

competent at physical examination. In view of such studies, it is clear that

overseas-trained doctors are examined at a higher standard than Australian

graduates. In the author's case, the fact that the AMC persistently fails him

raises the additional question of whether he is being penalized for taking his

case to the HREOC.

The complaint

3.1

Counsel claims that both the AMC examination system for overseas doctors

as a whole and the quota itself are unlawful and constitute racial

discrimination. In this respect the judgement of the Federal Court of

Australia condones the discriminatory acts of the Australian Government and

the AMC and thereby reduces the protection accorded to Australians under the

Racial Discrimination Act. At the same time, it eliminates any chance of

reform of this discriminatory legislation.

3.2

Counsel contends that the restrictions to practise their profession

imposed on overseas-trained doctors before they can be registered aim at

limiting the number of doctors to preserve the more lucrative areas of medical

practice for domestically trained doctors.

State party's preliminary submission and author's comments thereon

4.1

In a submission dated 7 January 1997 the State party informs the

Committee that in October 1995 the AMC decided to discontinue the quota system

following the HREOC's conclusion that the system was racially discriminatory.

That decision was taken in spite of the Federal Court's ruling that the quota

system was reasonable and not racially discriminatory. As a result, the

281 candidates who had fallen outside the quota, including the author, were

informed that they were eligible to undertake the clinical examinations.

4.2

The State party notes that the author has sat the AMC clinical

examination and failed it three times. As a result of the HREOC's decision

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in the author's case an independent observer appointed by the author was

present during his first two attempts. Under the current AMC regulations,

he may resit the clinical examination in the next two years, without having

to resit the MCQ examination. Currently, there is no restriction, other

than satisfactory performance, on the author's progress through the

AMC examinations.

4.3

With respect to counsel's allegation that the Federal Court ordered

the author to pay the legal costs of the AMC, the State party informs the

Committee that in November 1996 the AMC agreed to discontinue pursuit of costs

against the author. The Federal Court had made no order for costs in respect

of the Commonwealth of Australia, which agreed to bear its own costs.

4.4

In the light of the above the State party considers the author's

complaint to be moot.

5.1

In his comments, counsel informs the Committee that the author does not

wish to withdraw his communication. He notes that although the quota system

was discontinued it may be reintroduced at any time in the light of the

Federal Court's ruling which overturned the HREOC's decision. According to

counsel the State party authorities have indeed contemplated the possibility

of reintroducing it.

5.2

Counsel reiterates that the discontinuation of the quota has not solved

the problem of discrimination, since the AMC has simply increased the pass

criteria to compensate for the absence of the restrictive effects of the

quota. He further claims that although the author has been allowed to proceed

to the clinical examination he was failed on each occasion, in circumstances

which suggest that he is being penalized for having originally complained to

the HREOC. He has lodged a further complaint with the Commission about this

issue.

5.3

Furthermore, the fact that a discriminatory practice has been

discontinued does not change its previous discriminatory nature or render void

complaints concerning its application and operation when it was still in

force. Consequently, it is argued that the author's rights were violated from

1992 to 1995, causing him a detriment which has not been redressed by the

discontinuation of the quota system.

The Committee's admissibility decision and State party's comments thereon

6.1

During its fifty-first session the Committee examined the communication

and noted that the main issues before it were: (a) whether the State party

had failed to meet its obligation under article 5 (e) (i) to guarantee the

author's right to work and free choice of employment; and (b) whether the

order of costs against the author by the Federal Court violated the author's

rights under article 5 (a) to equal treatment before the courts.

6.2

On 19 August 1997 the Committee adopted a decision by which it

considered the communication admissible with respect to the claim relating to

the discriminatory nature of both the AMC examination and its quota system.

The Committee noted, inter alia, that the Federal Court's decision provided a

legal basis for the reintroduction of the quota system at any time. The

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Committee did not share the State party's reasoning that since the quota

system had been discontinued, the author's complaint for the discrimination

alleged to have taken place between 1992 and 1995 had become moot. In respect

of the fact that the author did not appeal the Federal Court's decision to

the High Court of Australia, the Committee considered that even if this

possibility were still open to the author, and taking into account the length

of the appeal process, the circumstances of the case justified the conclusion

that the application of domestic remedies had been unreasonably prolonged.

6.3

The Committee declared the case inadmissible as to the author's

complaint that he was discriminated against because the pass criteria had been

raised, since that matter had been submitted to the HREOC and therefore

domestic remedies had not been exhausted. It also considered the case

inadmissible as to the author's claim that costs ordered by the Court against

him constituted discrimination, in view of the State party's information that

the AMC would not be pursuing further the costs imposed by the Court.

6.4

By letter dated 24 December 1997 the State party informed the Committee

that its submission of 17 January 1997 contained a request for advice on

whether the communication was ongoing. This request was made because the

alleged victim had effectively received a remedy as a result of the

Government's decision to lift the quota. This request did not constitute the

State party's pleadings on admissibility and was not submitted under rule 92

of the Committee's rules of procedure. The submission clearly indicated that

if the Committee decided to proceed with its consideration of the author's

complaint the State party would like to be given the opportunity to make

submissions on the admissibility and merits of the communication. The State

party also indicated that it had never been advised that the author had

declined to withdraw his complaint.

6.5

By letter dated 11 March 1998 the Committee informed the State party

that rule 94, paragraph 6, of the Committee's rules of procedure provides for

the possibility of reviewing an admissibility decision when the merits of a

communication are examined. Accordingly, the Committee would revisit its

earlier decision on admissibility upon receipt of relevant information from

the State party.

State party's observations on admissibility and merits

7.1

The State party submits that the author's interpretation of the

requirement imposed on overseas-trained doctors such as himself to sit written

and clinical examinations to demonstrate competence is incorrect. The author

is not subject to the system of examinations because of his (Indian) national

origin, but because he has trained at an overseas institution. All OTDs,

regardless of national origin, are required to sit the examinations. The

objective of the examination process is to establish that medical

practitioners trained in medical institutions not accredited formally by the

AMC have the necessary medical knowledge and clinical competence for the

practice of medicine with safety within the Australian community. Its

standard is the level of attainment of medical knowledge and clinical skills

corresponding to that required of newly qualified graduates of Australian

medical schools who are about to commence intern training. The author has sat

the MCQ examinations on a total of six occasions. His first three attempts

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predated the introduction of the quota in 1992. On each occasion, he failed

to reach the “pass mark”. After the introduction of the quota in 1992, the

author sat the MCQ examination a further three times. Whilst succeeding in

obtaining a “pass”, he did not come within the top 200 candidates passing the

MCQ and so was unable to proceed to the clinical examination. When the quota

was discontinued, the author was permitted to sit for the clinical examination

in March 1996, August 1996, October 1996 and March 1997. On each occasion he

failed to demonstrate sufficient proficiency in each of the subject areas to

be granted registration. He currently is on the waiting list to sit the

clinical examination again.

7.2

The State party submits that the scheme, in general and in its

application to the author, does not represent a breach of Australia's

obligations under article 5 (e) (i). The underlying basis of the author's

complaint is that OTDs, particularly those who have “proven competence”

through practice in Australian public hospitals, should be similarly placed to

doctors trained in AMC-accredited schools. In the view of the Australian

Government, however, graduates of overseas universities and those from

Australian and New Zealand universities cannot be accepted as having equal

medical competence without further investigation. Educational standards vary

across the globe and the Australian Government is justified in taking account

of this difference in devising schemes to test the comparability of standards.

To accept the author's complaint would be to engage in a circular argument

which prejudges the question of equivalence of standards, a matter which the

Australian Government is entitled to question. The scheme in fact ensures

equality of treatment.

7.3

Furthermore, the State party does not accept that working in Australian

hospitals under temporary registration is necessarily sufficient proof of

competence to justify the waiving of examination requirements. When working

under temporary registration, overseas-trained doctors are subject to strict

supervision and practice requirements and may not be exposed to the broad

range of medical conditions which exist in the Australian community.

Satisfactory performance under such restricted conditions does not equate with

sufficient knowledge and competence over the range of areas of permitted

practice under general registration.

7.4

The requirement that OTDs sit for and pass AMC examinations is not based

on national origin. The distinction made is on the basis of the identity of

the medical school, regardless of the national origin (or any other personal

characteristic) of the candidate seeking registration. In practice, no matter

the race or national origin of a candidate, that candidate must fulfil the

same requirements: either graduation from an accredited medical school or the

completion of AMC exams to demonstrate an equal level of competence to those

who have successfully graduated from an accredited medical school. Thus, for

instance, if a person of Indian national origin studied overseas, he/she would

have to sit the AMC exams. If he/she studied in Australia, he/she would be

entitled to proceed straight to an internship. Similarly, whether a person is

of English national origin, Australian national origin, Indian national origin

or any other national origin, the requirements remain constant.

7.5

Furthermore, despite the author's implication that the AMC has

deliberately chosen not to accredit overseas medical schools for reasons

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associated with racial discrimination, there is no evidence to suggest that

the system was intended to, or in fact works to, the detriment of persons of

a particular race or national origin. Contrary to the author's complaint,

the system of AMC examinations does not carry any imputation regarding the

attributes of individuals of particular national origins. In particular,

the need to sit for such examinations does not imply that doctors trained

overseas, whether or not they have been practising in Australia, are inferior

because of their race, national or ethnic origin. Instead, it simply sends

the message that all graduates of medical schools will be subject to the same

standard of examination before being permitted to work unconditionally in

Australia.

7.6

The HREOC was satisfied that the accreditation system was not based on

race. The AMC's evidence, which the HREOC accepted, was that accreditation

was undertaken on the basis of efficient use of resources. The AMC has

considered it impractical to investigate for the accreditation process every

university attended by applicants for registration. Given the wide range of

countries from which immigrants to Australia come, there is concomitantly an

extremely large number of universities all around the world from which OTDs

have graduated. The AMC does not have the resources to undertake such an

extensive accreditation, nor should it be expected to. The Australian

Government supports the reasonableness of the allocation of the AMC's

resources to accredit schools with which it has most familiarity and contact.

It thus considers an examination to be an equitable system of adjudging

standards of competence by persons, regardless of race or national origin.

The accreditation of New Zealand medical schools, in particular, is

explainable in terms of the mutual accreditation programme carried out by

the Australian Medical Council and the Medical Council of New Zealand.

7.7

The State party does not accept the author's allegation that the system

privileges Australian and New Zealand doctors and disadvantages doctors

trained outside Australia and New Zealand. Even if (for the purposes of

argument) such a benefit or disadvantage could be established, such an effect

would not constitute discrimination on the basis of “national origin” or any

other prescribed ground under the Convention. The group who are privileged

under this scenario are those trained in Australian and New Zealand medical

schools, rather than persons of particular national origin. Medical students

in Australia do not share a single national origin. Similarly, those who are

OTDs are not of a single national origin. Whilst the latter group are likely

“not to be of Australian national origin”, the Australian Government does not

accept that such a broad category of persons represents a “national origin” or

racial classification for the purposes of article 5 (e) (i). For the purposes

of article 5 (e) (i), it would be necessary to demonstrate discrimination on

the basis of a person's particular national origin - in this case, the

author's Indian national origin.

7.8

The current system of examinations is clearly based on objective and

reasonable criteria. It is a legitimate policy objective for the Australian

Government to seek to maintain high standards of medical care for its

residents and to seek to assure itself of the standards of medical competence

of those seeking to work in Australia on an unsupervised basis. Thus, it is

reasonable for legislatures to institute a means of supplementary exams for

those trained in universities with which it is not familiar to ensure that

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their competence is at a comparable level to those trained within Australia

and New Zealand. That the author would prefer an alternative method of

evaluating competence does not detract from the reasonableness of the current

system. It is within a State's discretion to take the view which has been

adopted - that an examination is the best method to test for overall

knowledge. The reasonableness of such a system is also demonstrated by the

extent to which similar practices are adopted by other States parties to the

Convention, such as the United Kingdom, Canada, the United States and

New Zealand.

7.9

The need for doctors to demonstrate their competence could also be

regarded as outside the realm of “discrimination” by reason of it being an

inherent occupational requirement. Although the Convention does not

explicitly mention such an exception, it would seem in keeping with the spirit

of the Convention for the Committee to recognize that measures based on the

inherent requirements of jobs do not represent discrimination, in a similar

way to the recognition of the principle in article 1 (2) of the ILO Convention

(No. 111) concerning Discrimination in respect of Employment and Occupation.

7.10

The State party submits that there has been no relevant impairment of

the right to work or free choice of employment through the current scheme.

The institution of regulatory schemes governing the prerequisites for

admission to practise in a particular profession and applying equally to all

does not infringe or impair an individual's right to work. Implicit in the

author's complaint is that he should have the right to work as a doctor and

the right to have his qualifications recognized by the health authorities in

Australia without undergoing any form of external examination. In the

Australian Government's view, such an argument misunderstands the nature of

the internationally recognized right to work.

7.11

Under international law, the right to work does not confer a right to

work in the position of one's choice. Instead, by recognizing the right to

work, States parties undertake not to inhibit employment opportunities and to

work towards the implementation of policies and measures aimed at ensuring

there is work for those seeking it. In the current context the Australian

Government is not impairing anyone's right to work. In fact, the relevant

legislative schemes merely regulate the means of practising a particular

profession.

7.12

The system of admission to unrestricted practice does not impair the

right of anyone to free choice of employment, let alone persons of a

particular national origin. Recognition of a right to free choice of

employment is designed to prevent forced labour, not to guarantee an

individual the right to the particular job he/she desires. In the present

context, there is no servitude or forced labour regime which impairs the

choice of employment of doctors of a particular national origin. Instead,

there is a system of examinations which permits entry into unrestricted

practice.

7.13

Similarly, whilst counsel has attempted to argue that the author is

equally placed to Australian doctors in terms of competence and that his

experience should be a sufficient demonstration of competence, the State party

submits that there is no evidence that doctors of Indian national origin

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should be treated differently to overseas-trained doctors of other national

origins. Nor is there compelling evidence to suggest that the subjection of

the author to the AMC examinations is unreasonable and evidence of racial

discrimination. Despite counsel's reliance on the author's practice in public

hospitals, the State party notes that at all relevant times, the author's

practice has been circumscribed by strict supervision and limited practice

requirements commensurate with his status as a conditional registrant. The

State party would thus reject any implication that his work in Australia

demonstrates sufficient competence to warrant automatic general registration.

7.14

The State party denies that the standard of the AMC examinations is

higher than that expected of students at Australian and New Zealand medical

schools. Steps have been taken to ensure the comparability of the examination

system, including: (a) the appointment of a Board of Examiners with broad

experience in teaching and examining undergraduates, and therefore familiar

with the curricula of Australian university medical schools; (b) the use of a

bank of approximately 3,000 MCQ questions mostly drawn from MCQ examination

papers of the medical schools of Australian universities and questions

specifically commissioned by the AMC from Australian medical schools; (c) the

MCQ examination papers are marked by Educational Testing Centre at the

University of New South Wales, a major national testing authority which also

provides information in relation to the statistical reliability and validity

of the questions. If data indicate that a particular question fails as a

discriminator of performance, or if there is evidence to suggest that a

question could be misleading, the Board of Examiners is able to delete that

question from the examination; (d) instructing both the MCQ and clinical

examiners to the effect that the examinations should be directed to

establishing whether AMC candidates have the same level of medical knowledge

and medical skills as new graduates.

7.15

The past practice of adjustment of raw scores in the MCQ examination

does not reflect any racial discrimination, or a racially discriminatory

quota. Such adjustment was designed as a method of standardization to prevent

unrepresentative results based on the particular examination.

7.16

Other than his particular complaints about his failure to pass the

examinations, the author has not advanced any objective evidence to support

the non-comparability of the examination standards. The only study produced

by the author's counsel merely comments on perceptions of deficiencies in the

standard of first year interns, rather than the comparability of the forms of

examination to which OTDs and AMC-accredited medical students are subject.

7.17

Quite apart from the nature of the examinations in themselves, the

author has failed to make a case that any disparity in standards of the

MCQ examinations and standards at AMC-accredited universities has the purpose

or effect of discriminating against persons of a particular national origin.

When the figures of national origin and success rates in the MCQ are compared,

there is no evidence of discrimination against persons of a particular

national origin. In particular, there is no evidence that persons of Indian

national origin are less likely than persons of other national origin to pass

the examination. The State party provides a table of results in the

1994 exams (the last year in which the quota applied), showing that Indian

students' success rates in the AMC exams are proportionate to their entry

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levels in the examinations. Whilst Indian doctors comprised 16.48 per cent of

doctors attempting the MCQ examination in 1994, they represented

16.83 per cent of those successfully passing the MCQ examination.

7.18

The author alleges that during the period of the operation of the quota

system between July 1992 and October 1995, the exclusion of OTDs such as

himself from the AMC clinical examination on the basis of his quota ranking

constituted racial discrimination and was a denial of his right to equal

enjoyment of the right to work and free choice of employment under

article 5 (e) (i).

7.19

When the Australian Health Ministers' Conference (AHMC) resolved to

introduce the quota on OTDs in early 1992, the OTDs in the process of

undergoing the AMC examinations numbered approximately 4,500, almost four

times the number of doctors expected to graduate from Australian medical

schools. In the face of such a large number of OTDs seeking to practise in

Australia and mindful of the national workforce supply target (set at one

doctor per 500 persons), the AHMC adopted a National Medical Workforce

Strategy comprising a number of initiatives. One of them was the introduction

of a quota on the numbers of OTDs who would be allowed to sit the clinical

examination, having passed the MCQ examination. Thus, the AHMC requested the

AMC to set a cap of 200 on the number of candidates proceeding annually to the

clinical examinations. The request was made on the basis of: (a) the number

of doctors needed to service the Australian community to requisite standards;

(b) the cost of the provision of medical services under an open-ended funding

commitment and the impact on that cost of a more than optimum number of

doctors; (c) the geographic distribution of doctors; and (d) the degree to

which the supply of doctors is sufficient to meet the needs of particular

community groups and particular specialities.

7.20

The quota was not racially discriminatory in any form. Firstly, it

applied to all OTDs regardless of national origin, with persons of a variety

of national origins, including Australians, being subject to the requirement.

Nor is there any evidence that the quota disproportionately affected persons

of Indian national origin. In evidence before the Federal Court, for example,

the proportion of doctors of Indian birth gaining entry to the quota was in

fact marginally higher than the percentage of doctors of Indian birth

attempting the MCQ examination. Furthermore, the quota on doctors trained

overseas was complemented by the pre-existing de facto quota on students

seeking entry to Australian medical schools.

7.21

Secondly, even if the quota could be considered to have benefited those

who have attended Australian and New Zealand medical schools, such persons are

not characterized by a national origin. Instead, they would be likely to

share citizenship, a factor outside the realm of the Convention.

7.22

Thirdly, even if (for the purposes of argument) the Committee was of the

view that the quota represented a distinction on the basis of national origin,

the State party would submit that the quota was a reasonable measure,

proportionate to meeting the State's legitimate interest in controlling the

number of health-care providers and hence was not an arbitrary distinction.

Such a purpose is not inconsistent with the Convention and would only infringe

the Convention if such policies, designed to deal with the supply of medical

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professionals, disguised racial discrimination. Whilst the details of the

quota were subject to some criticism by the HREOC (in that it did not provide

for a waiting list, but required OTDs not initially successful in coming

within the annual quota to undergo the examination again), such a factor does

not make the quota unreasonable or discriminatory.

7.23

As the State party has previously noted, the quota is no longer in

existence and the author has been permitted to sit for the clinical

examination on several occasions. He has thus been afforded a remedy, if any

was required. The State party's view remains that the subject matter is moot.

7.24

The State party further considers that the author's complaint concerning

the application of the quota to all OTDs regardless of citizenship status does

not fall within the terms of the Convention. Under article 1 (2) of the

Convention States parties are not prohibited from discriminating on the basis

of citizenship. Conversely, the imposition of a system which does not take

account of citizenship cannot be the basis of complaint under the Convention.

7.25

Furthermore, the State party denies that the judgement of the Federal

Court has the effect of reducing the protection accorded to Australians under

the Racial Discrimination Act 1975. The issues raised by the author under

this allegation relate primarily to the interpretation of domestic legislation

which should not be the subject of separate investigation by the Committee.

The Racial Discrimination Act 1975 remains an appropriate and effective means

of eradicating racial discrimination.

7.26

Finally, the State party notes the author's allegations that Australia

continues to act in violation of article 5 (e) (i) on the grounds that the AMC

has raised the pass criteria for the clinical examination to compensate for

the discontinuation of the quota system. The author alleges that his failure

to pass the clinical examination is evidence of this practice and of the fact

that he is being victimized for lodging his original complaint with the HREOC

in 1995. The State party contends that this complaint continues to be subject

to the investigation of the HREOC and thus remains an inappropriate subject

for the Committee's examination.

Counsel's comments

8.1

In his response to the State party's observations counsel indicates that

unlike other countries where both local graduates and overseas-trained doctors

are assessed by sitting exactly the same national licensing examination, in

Australia there is a differential system with one regime for overseas-trained

doctors and another for Australian graduates. The Australian graduate is

assessed by his/her university on the basis of what he/she has been taught.

It is primarily an exercise in curriculum recall rather that an assessment of

essential medical knowledge and clinical competence. The Australian Medical

Council's own witnesses in the author's case before the HREOC have conceded

that in undergraduate assessment the aim is to try and pass the student.

Indeed, pass rates for final-year medical students in Australian universities

are close to 100 per cent. On the contrary, the AMC MCQ examination purports

to assess whether a doctor possesses sufficient knowledge for safe practice.

In 1995 the Australian Medical Council conducted a trial in which its 1994 MCQ

paper was submitted to final-year medical students at Monash University and

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Sydney University. The results of the trial clearly reveal that a higher

assessment standard is applied to OTDs than to Australian graduates and that

the quota served to disadvantage overseas doctors when compared to local

graduates.

8.2

As regards the AMC clinical examination, the differential nature of the

system is even more manifest. The author has attempted the AMC clinical

examination on four occasions. On each occasion he has been failed. He

lodged a further complaint with the HREOC, which has not issued a decision

yet. In the course of the hearing, the true nature of the AMC clinical

examination system has been revealed. It has been exposed as a chaotic,

unstructured and unreliable assessment tool which, in form and content,

departs markedly from the system used to assess students in Australian

universities. Moreover, the AMC's own internal working parties have

emphasized the inadequacies of its examination system and the need to improve

its reliability and validity.

8.3

Counsel provides a table showing pass rates in the AMC clinical

examination by country of birth during the period 1995 to 1997. The pass rate

for persons born in India is 45.9 per cent, for those born in the Middle East

43.6 per cent and for those born in Asia 43.5 per cent. For those born in the

United States or Canada the pass rate is 55.6 per cent, for Western Europe

62.5 per cent, for the United Kingdom and Ireland 77.1 per cent and for

South Africa 81.1 per cent. Counsel wonders whether these differential pass

rates are merely a reflection of the quality of medical education in the

countries in question or whether conscious or unconscious perceptions of

racial “compatibility” play a part. It is well established that many people

make conscious or unconscious judgements about a person's competence on the

basis of race and colour and if an examination system has a format that gives

free rein to any prejudices that may exist, then it is not competence alone

which determines the result. Counsel also quotes a number of reports and

statements by Australian institutions indicating that the country needs more

trained doctors and that the system of accreditation of overseas-trained

doctors is unfair and discriminatory.

8.4

With respect to the quota system, counsel argues that the quota was a

quantitative control designed to shut out a number of overseas-trained doctors

not because they were trained overseas but because they were from overseas.

There is a close correlation between place of birth and place of training in

that most people are educated in their country of birth. Accordingly, a

restriction purportedly based on place of training is effectively a

restriction based on national origin, particularly if that restriction is in

no way connected to the issue of training. He also states that in the

author's 1995 case before the HREOC there was no clear evidence of an

oversupply of doctors in the country. Rather, it was the increase in the

number of Australian medical graduates coupled with the automatic registration

of doctors from the United Kingdom (which existed until recently) which had

been the major reasons for the increase in doctors' numbers. It was also

emphasized that the principal supply problem was one of geographical

distribution of doctors, that the imposition of the quota was motivated by a

desire to restrict the number of doctors to control the health expenditures of

Commonwealth countries (and protect doctors' incomes) and that the Health

Ministers' advisers were advocating immigration quotas, not examination

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page 14

quotas. The only reasonable conclusion to be drawn from the evidence of the

Government's own witnesses and reports was that the decision to impose the

quota was based not on fact and analysis but on feelings and perceptions.

8.5

The State party asserts that the author has been practising medicine in

Australia under temporary registration and that he is subject to strict

supervision and practice requirements while working as a practitioner in the

public hospital system. This statement is totally untrue. The author has now

worked as a doctor for 14 years, 10 of which have been in Australian public

hospitals. He is classified as a Senior Hospital Medical Officer Year 5 and

in his last position at Maroondah Hospital (a large hospital in Melbourne) he

was the Night Senior, i. e. he was in charge of the whole hospital at night.

Unfortunately, he is now unable to practise even under temporary registration.

The Medical Board of Victoria, following advice from the Australian Medical

Council regarding his examination results, has placed such tight restrictions

on this registration that it has made him unemployable.

8.6

The State party asserts that the United States, Canada, the

United Kingdom and New Zealand have similar examination systems to Australia.

It does not say, however, that while the United States and Canada have an

initial evaluating examination for overseas-trained doctors, the licensing

examination is the same for both overseas-trained and locally-trained doctors.

Thus, there is not a differential system allowing differential standards and

open to abuse, as is the case in Australia.

8.7

Counsel further states that the right to work must embrace the right to

be fairly assessed to work in the occupation for which a person is qualified

and not to be denied that right by reasons of a capricious assessment system

or quota.

Issues and proceedings before the Committee

9.1

In accordance with rule 94, paragraph 6, of its rules of procedure, the

Committee reconsidered the question of admissibility in the light of the

observations made by the State party with respect to the Committee's decision

of 19 August 1997 that declared the communication admissible. The Committee,

however, did not find reasons to revoke its previous decision, since the State

party's observations as well as the author's comments thereon referred mainly

to the substance of the matter. In the circumstances, the Committee proceeded

with the examination of the merits.

9.2

The main issue before the Committee is whether the examination and the

quota system for overseas-trained doctors respect the author's right, under

article 5 (e) (i) of the Convention, to work and to free choice of employment.

The Committee notes in this respect that all overseas-trained doctors are

subjected to the same quota system and are required to sit the same written

and clinical examinations, irrespective of their race or national origin.

Furthermore, on the basis of the information provided by the author it is not

possible to reach the conclusion that the system works to the detriment of

persons of a particular race or national origin. Even if the system favours

doctors trained in Australian and New Zealand medical schools such an effect

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page 15

would not necessarily constitute discrimination on the basis of race or

national origin since, according to the information provided, medical students

in Australia do not share a single national origin.

9.3

In the Committee's view, there is no evidence to support the author's

argument that he has been penalized in the clinical examination for having

complained to the HREOC, in view of the fact that an independent observer,

appointed by him, was present during two of his attempts.

10.

The Committee on the Elimination of Racial Discrimination, acting under

article 14, paragraph 7 (a), of the International Convention on the

Elimination of All Forms of Racial Discrimination, is of the opinion that the

facts as submitted do not disclose a violation of article 5 (e) (i) or any

other provision of the Convention.

11.1

Pursuant to article 14, paragraph 7 (b), of the Convention, the

Committee recommends that the State party take all necessary measures and give

transparency to the procedure and curriculum established and conducted by the

Australian Medical Council, so that the system is in no way discriminatory

towards foreign candidates irrespective of their race or national or ethnic

origin.

11.2

After considering several complaints concerning Australia under

article 14 of the Convention, the Committee also recommends to the State party

that every effort be made to avoid any delay in the consideration of all

complaints by the Human Rights and Equal Opportunity Commission.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

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