FEDERAL COURT OF AUSTRALIA

Taylor v Department of Health [2019] FCA 1588

ORDERS

THE COURT ORDERS THAT:

1.    The notice of objection to competency filed on 2 September 2019 is upheld.

2.    The originating application filed on 15 August 2019 is dismissed.

3.    The applicant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an originating application filed on 15 August 2019, Dr Taylor commenced these proceedings. They concern her claim that the Department’s treatment of her application for registration in the Australian General Practice Training Program (AGPT Program) involved unlawful discrimination against her on the grounds of disability. In particular, Dr Taylor contends that the Department breached Item 2 of the table in s 342(1) of the Fair Work Act 2009 (Cth) (FW Act), s 351 of the FW Act and s 15(1) of the Disability Discrimination Act 1992 (Cth) (DD Act). Dr Taylor’s claim under s 342(1) of the FW Act is a claim that the Department, as her allegedly prospective employer for the purposes of the AGPT Program, discriminated against her as its prospective employee in the terms or conditions on which it offered to employ her. Dr Taylor’s claim under s 351 is that the Department took adverse action against her as a prospective employee based upon her disabilities.

2    It might be noted that Dr Taylor commenced these proceedings shortly after she initiated separate proceedings against the Department in ACD56/2019. Dr Taylor’s application for interlocutory injunctive relief in that proceeding was unsuccessful (see Taylor v Commonwealth of Australia as represented by the Department of Health [2019] FCA 1587). Dr Taylor is currently employed by the Department.

3    For the reasons that follow, on 25 September 2019 the respondent’s objection to competency was upheld and the present proceeding was dismissed, with costs.

Summary of background matters

4    In brief, Dr Taylor (who represented herself and, with the Court’s leave used assistive technology to present her case) complains that the Department prevented her from completing her application in Round 1 of the AGPT 2020 Program intake and that this was based on a medical registration condition applying to Dr Taylor which may not be present at the commencement of the 2020 training year. Dr Taylor points to the fact that she had appealed against her current medical registration condition and the outcome of that appeal would not be known before the end of September 2019. Dr Taylor is concerned that she will be excluded again from the AGPT 2020 Program, Round 2 (which started in August 2019) because the outcome of her appeal is unknown.

5    Dr Taylor complained that, in circumstances where the Department allegedly gives some other AGPT applicants the benefit of the doubt as to their likely registration status at the commencement of the 2020 training year (such as interns), but not to her, this amounts to direct or indirect disability discrimination.

6    Notably, the only relief sought by Dr Taylor in her originating application filed on 15 August 2019 is interlocutory injunctive relief which would allow her to complete the Round 2 application process notwithstanding the present condition on her medical registration. No final relief is sought.

The parties’ evidence summarised

7    Dr Taylor relied upon an affidavit affirmed by her on 7 June 2019, but was not filed until 15 August 2019. She outlined the history of her attempts to be accepted into the AGPT Program. She acknowledged at [18] of her affidavit that the application process for the AGPT Program “is not a guarantee of acceptance into the program, or a job offer”, and that doctors can only secure a position on the Program through the AGPT application process run by the Department of Health. Dr Taylor annexed to her affidavit a copy of the current “Guidelines for the assessment of applicants with conditions and/or undertakings attached to their general medical registration” (Guidelines), which Guidelines were used in the AGPT Program.

8    The Department relied on an affidavit affirmed on 13 September 2019 by Mr David Meredyth. Mr Meredyth is the Acting Assistant Secretary of the Health Training Branch of the Department of Health, which is the part of the Department which manages the AGPT Program. I accept Mr Meredyth’s description of the Program.

9    The AGPT Program is a postgraduate vocational training program for medical graduates who wish to pursue a career as a General Practitioner (GP). Completion of the AGPT Program gives a doctor Fellowship of the Royal Australian College of General Practitioners (RACGP) or the Australian College of Rural and Remote Medicine (ACRRM).

10    Enrolment in the AGPT Program and completion of the AGPT Program also enables doctors to provide professional services which will attract a medicare benefit at the highest rate payable under the Health Insurance Act 1973 (Cth).

11    The responsibility for running the AGPT Program is shared between the Department, the RACGP, the ACRRM and 9 Registered Training Organisations (RTOs).

12    The Department is responsible for policy oversight of the AGPT Program, including financial management and reporting to the Minister for Health on implementation, outcomes and development of the Program.

13    The Department is also responsible for managing applications to the AGPT Program, including determining the eligibility requirements of the Program and assessing applications against these eligibility requirements.

14    Once the Department decides an applicant is eligible for the AGPT Program, their suitability is further assessed by the RACGP or ACRRM, depending on which college the applicant applied to, who decide whether the applicant should be admitted to the Program. This phase of the application process is merit-based and involves assessment of the applicant's skills as a doctor through testing and interview.

15    If an applicant is successful in their application, the Department assigns the applicant an RTO. The majority of the training in the AGPT Program is delivered by the RTOs who are funded by the Department.

16    Training commences in late January or early February the year after the applicant applies. If a doctor who is enrolled in the AGPT Program (known as a registrar) has completed mandatory hospital training, they can start training in a general practice. If they have not, they begin their training in a hospital of their choice.

17    The AGPT Program is based on an apprenticeship model and as such all applicants are required to start their general practice training with some element of independence as a medical practitioner. For this reason, one eligibility requirement is that registrars have general registration and do not have conditions or undertakings on their registration that prevent them from fully participating in the AGPT program. General registration is granted after provisional or limited registration to a doctor who has met all requirements set out by the Medical Board of Australia and/or the Australian Medical Council. The reason that general registration is required is because it allows registrars to provide independent clinical medical services to patients. The ability to provide clinical services to patients is critical to the attainment of general practice college fellowship.

18    However, if an applicant has conditions placed on their registration a review panel consisting of representatives of RTOs, RACGP, ACRRM and the Department reviews the conditions to determine whether the applicant's conditions can reasonably be accommodated on the AGPT Program by reference to 4 categories of conditions set out in the Guidelines.

19    The RTOs match registrars with practices for their training. The RTOs do this in different ways. Usually a registrar applies for a position at a general practice and the practice accepts or rejects the application.

20    I accept Mr Meredyth’s evidence that registrars are not employed by the Department, the RTOs, the RACGP or the ACRRM. A registrar is generally employed by a general practice for training terms of 6-12 months but may be employed by a hospital during training terms if they have not completed their mandatory hospital training.

21    It is not disputed that Dr Taylor sought to participate in Ground 1 of the 2020 AGPT Program on 25 April 2019 and that she was informed on 30 May 2019 that the review panel, consisting of representatives from the RTO network, a representative from the relevant College and a Departmental medical advisor, considered that her application was ineligible because of the condition on her registration as a medical practitioner. That condition was as follows:

The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles.

22    Also undisputed is the fact that, on 31 May 2019, Dr Taylor asked for the review panel’s decision on eligibility to be reviewed and that there was an exchange of correspondence in relation to this request. On 12 June 2019, Mr Meredyth advised Dr Taylor that he considered the review panel’s decision to be correct and he provided reasons in support of that conclusion. Mr Meredyth also deposed that, when he made this decision, he was aware that Dr Taylor had health-related conditions on her registration but that he was not aware that the conditions were related to a disability. I accept that evidence.

23    I accept Mr Meredyth’s evidence that Dr Taylor’s ineligibility for the AGPT Program does not affect her existing employment in the Department in any way. Different issues may arise if the Department seeks to discipline Dr Taylor for steps she takes in her capacity as an applicant for the AGPT Program. Those issues are for another day.

Objection to competency

24    The Department filed a notice of objection to competency on 2 September 2019. It states:

1.    The originating application dated 15 August 2019, and accompanying affidavit of the Applicant dated 7 June 2019, do not state the Act and provision under which the relief is claimed. The Applicant’s submissions dated 23 August 2019 claim that the Respondent has breached item 2 of the table in s 342(1) of the Fair Work Act 2009 (Cth) (FW Act), s 351 of the FW Act, and s 15(1)(a) of the Disability Discrimination Act 1992 (Cth) (DD Act).

1.1.    Insofar as the application alleges a breach of ss 342 and 351 of the FW Act, the application does not concern any action taken by the Respondent in the capacity of an employer or prospective employer against the Applicant in the capacity of an employee or prospective employee.

1.2.    Insofar as the application alleges unlawful discrimination under s 15 of the DD Act, or any other provision of the DD Act, the Court does not have jurisdiction because the President of the Australian Human Rights Commission (AHRC) has not terminated any complaint to the AHRC or given notice in relation to any termination: s 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth) (AHRC Act). There is also no evidence that the Applicant has lodged any complaint with the AHRC under s 46P of the AHRC Act.

Consideration and determination

25    It is necessary first to determine the notice of objection to competency. For the reasons that follow, that objection was upheld.

26    In her outline of written submissions filed on 16 September 2019, Dr Taylor stated that she relied upon the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and that there was no requirement in this jurisdiction for her first to approach the Australian Human Rights Commission (AHRC) concerning her complaint under the DD Act.

27    Dr Taylor explained that she seeks orders that the Department allow her to progress in completing any application for the AGPT Program in 2020 regardless of any conditions on her present medical registration. The balance of her outline of submissions explained why the Court should grant her the interlocutory relief sought in her originating application, including on the issues of serious question to be tried, balance of convenience, damages not being an adequate remedy and the proffering by her of an undertaking as to damages. She also explained why she considered that the Department was a prospective employer for the purposes of the AGPT Program, primarily because applicants had to apply for AGPT Program positions by going through the Department, with the consequence that “there is an unbreakable connection between the Department’s handling of applications and any resulting contracts of employment”. Dr Taylor contended, in essence, that the Department acted as agent for all the employers who hire successful candidates under the Program. Dr Taylor candidly acknowledged that she could cite no authority for that contention.

28    The Department’s submissions in support of the notice of objection to competency may be summarised as follows. As to Dr Taylor’s claims of unlawful discrimination under the DD Act, the Court only has jurisdiction if the President of the AHRC terminates a complaint on any of the grounds set out in s 46PH of the Australian Human Rights Commission Act 1984 (Cth) (AHRC Act) (see s 46PO of the AHRC Act). Dr Taylor has not made any complaint to the AHRC, thus s 46PO is not engaged. Accordingly, the Court lacks jurisdiction to hear and determine Dr Taylor’s complaints of unlawful discrimination under the DD Act (see Picos v Australian Federal Police [2015] FCA 118 at [34] ff per Perry J; Payne v Davies [2019] FCA 1506 at [39] per Perry J; Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818 at [37] per McKerracher J).

29    For completeness, it might also be noted that Dr Taylor did not seek the Court’s leave under s 46PO(3A) of the AHRC Act. That is presumably because, as Mr Berger correctly pointed out, the requirement of leave relates to an application which conforms with the preceding provisions of that section, including the relevant requirement in this case that a complaint has been terminated under s 46PH. Section 46PO(3A) is a further filter or additional requirement which the legislation imposes on applications which have first met the requirements of s 46PO(1) (see James v WorkPower Inc [2018] FCA 2083 at [32] per Mortimer J). It does not bypass those threshold jurisdictional requirements.

30    As to Dr Taylor’s reliance upon s 39B(1A)(c) of the Judiciary Act, the Department cited Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [40] to [43] in support of its submission that this Court’s jurisdiction under that legislation does not arise until the requirements of s 46PO of the AHRC Act are satisfied.

31    As to Dr Taylor’s claim that the Department had taken “adverse action” against her under the FW Act, the Department submitted that it does not employ successful applicants to the AGPT Program and that its role in that Program is that of a regulator, as explained by Mr Meredyth. It submitted that there was no evidence to support Dr Taylor’s claim that it acted on behalf of potential employers. It did not deny that the relevant provisions of the DD Act could apply to AGPT Program applicants but it contended that the jurisdictional hurdle in s 46PO had to be overcome.

32    The Department also made submissions as to why Dr Taylor’s claims of direct or indirect disability discrimination were baseless. It is unnecessary to summarise those submissions because the notice of objection to competency was upheld, substantially on the grounds advanced by the Department which are outlined above.

33    In brief, the Court does not have jurisdiction to determine Dr Taylor's claims of unlawful discrimination under the DD Act because it is a necessary condition to that jurisdiction that the President of the AHRC has terminated a complaint in relation to those claims (see s 46PO of the AHRC Act). There has been no such termination because Dr Taylor has not complained to the AHRC.

34    This jurisdictional hurdle is not circumvented by s 39B(1A)(c) of the Judiciary Act. I accept the Department's submission that the Full Court's decision in Clifton applies (see also French v Gray [2013] FCA 263; 217 FCR 404 at [150]-[159] per Besanko J). The Full Court observed at [40]-[43]:

The jurisdiction of the Federal Court

Section 213 of the Act is critical to a determination of the extent of the jurisdiction of the Federal Court under the Act. In providing that the jurisdiction of the Court in relation to matters arising under the Act is subject to the Act, s 213(2) discloses an intention to limit the general jurisdiction conferred on the Federal Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and the jurisdiction otherwise conferred on the Court by s 81 of the Act. Section 39B(1A)(c) vests in the Federal Court original jurisdiction in any matter arising under a law made by the Parliament other than a criminal matter. The limit placed by s 213(1) on the Court's jurisdiction in any matter arising under the Act is that any determination of native title must be made in accordance with the procedures in the Act.

Because of the reliance placed on s 22 of the Federal Court of Australia Act 1976 (Cth), we interpolate that s 22 is not a provision which expands the Court's jurisdiction. Section 22 obliges the Court, in every matter before it, to grant all remedies to which any of the parties appears to be entitled in respect of a claim properly brought forward by him or her in the matter so as to avoid multiplicity of proceedings. All jurisdiction of the Federal Court is jurisdiction with respect to matters (s 77(1) of the Constitution of the Commonwealth). Section 22 is concerned with the way in which the Court is to exercise that jurisdiction.

When understood in the above context, it can be seen that s 61(1) of the Act is not concerned to vest jurisdiction in the Court or to limit the jurisdiction otherwise conferred on the Court. Section 61(1) has two purposes. The first is to identify the applications that may be made under Div 1 of Pt 3 of the Act. The second is to identify the person or persons who may invoke the jurisdiction of the Court by making one of the three kinds of application with which the section is concerned; that is, to identify those who have standing to make those applications.

The requirement of s 213(1) that a determination of native title must be made in accordance with the procedures in the Act makes it necessary to identify the procedures in the Act that govern the making of a determination of native title. It may also make it necessary to determine which of those procedures the legislature intended to be critical to a valid exercise of the jurisdiction of the Federal Court (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).

35    Although those observations were directed to the Court's jurisdiction under the Native Title Act 1993 (Cth) and its relationship with the relevant provision of the Judiciary Act, the fundamental principle applies equally here. Failure to satisfy the threshold jurisdictional precondition under s 46PO(1) cannot be circumvented by relying on s 39B(1A)(c) of the Judiciary Act.

36    Section 46PO of the AHRC Act is in the following terms:

46PO    Application to court if complaint is terminated

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

  (3)    The unlawful discrimination alleged in the application:

(a)      must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)     must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

…

37    It may be accepted, of course, that the Department is Dr Taylor’s employer for the purposes of the other proceedings involving those parties (ACD56/2019). The problem for Dr Taylor, however, is that her application for the AGPT Program is not made by her in her capacity as the Department’s employee in terms of her existing employment position. I accept the Department’s submission that the provisions in Pt 3-1 of the FW Act relied upon by Dr Taylor in the present proceeding, including the adverse action which she says was taken contrary to Item 2 of the table in s 342, relate to conduct by an employer or prospective employer with reference to an existing or prospective employment relationship. The relevant conduct in this proceeding does not involve any such relationship or prospective relationship with the Department. The provisions of the FW Act are simply not engaged in this proceeding because of the want of a relevant relationship of employment.

38    Nor does the Court have jurisdiction under the FW Act. As noted, I accept Mr Meredyth's evidence that the Department does not employ applicants, including successful applicants, for the AGPT Program. The Department is neither an employer nor a prospective employer of applicants such as Dr Taylor. It is a mere coincidence that, as an applicant in the AGPT Program, Dr Taylor is currently employed by the Department. Her application does not arise in the context of that employment relationship, nor did Dr Taylor contend to the contrary.

39    I reject Dr Taylor’s contention that the Department is an agent for employers or prospective employers. The Department is more accurately described as the administrator or regulator of the AGPT Program. It does not have an employment relationship with applicants. As Mr Meredyth pointed out, a successful applicant, in his or her capacity as a registrar, may be employed by a general practice or hospital during their training term, but that does not involve the Department in any, or any prospective, employment relationship. There is not even an arguable basis that the Court has jurisdiction under the FW Act (see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 per Bowen CJ, Morling and Beaumont JJ).

Conclusion

40    For these reasons, the notice of objection to competency was upheld, with the consequence that the originating application was dismissed. The Court also ordered Dr Taylor to pay the respondent’s costs, as agreed or taxed, consistently with the normal rule that costs follow the event. Dr Taylor advanced no reason why that ordinary rule should not apply. In particular, I am not satisfied that the rule should be displaced merely because of Dr Taylor’s allegation that the respondent had not followed its own Guidelines in respect of the AGPT Program.

Associate:

Dated:    27 September 2019