The ACT government has lost a bid to remove a tribunal member who found its policy of preferring Australian-trained medical interns discriminated against a Chinese neurosurgeon.
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The saga centres around Dr Qinglin Wang, a doctor with 16 years experience, who was the director of a neurology department at the Tianjin Medical University in north-east China, and holds a master's degree in neurology.
Dr Wang came to Australia in 2001, and sought an intern placement with the Canberra Hospital. But because he was trained overseas, Dr Wang was ranked lowest on a preference system that sees locally-trained applicants favoured first.
He failed to secure the placement, which he needed to practice in Australia, and complained to the Human Rights Commissioner that he had been discriminated against on the basis of his age and Chinese background.
The dispute made it's way to the ACT Civil and Administrative Tribunal, where senior member Allan Anforth found in the doctor's favour, saying the ACT's policy directly discriminated against him.
An unusual chain of events then began.
Lawyers for the ACT launched action to have Mr Anforth removed from the case, raising issues of bias.
That's because Mr Anforth had been overheard in casual conversation talking with a witness about a Four Corners episode concerning bullying of registrars by specialists in the medical system, and spoke of his daughter's experience with a royal college she was involved with.
He said his daughter's college was criticised for discriminating on gender grounds and against those tutored by overseas-trained specialists.
Mr Anforth had also talked of receiving racist emails from members of the public since making his decision in favour of Dr Wang, and said the emails only confirmed he "called it the correct way in the first place".
The ACT used that to allege Mr Anforth had a direct personal interest in the case, because of his daughter, had pre-existing views about race and gender discrimination in the medical community, and was trying to make the case a bigger inquiry about public policy and was attempting to bring in additional stakeholders, like the Australian Medical Association, to give evidence.
Mr Anforth, in July, knocked back the attempt to have him removed himself from the case, saying: "I am entitled to hold a view that gender and race issues exist in the community.
"I am required to have an open mind to the issues, not an empty mind."
But the ACT government pressed on, taking the case to the ACT Supreme Court, and seeking to have Mr Anforth prohibited from taking further part in Dr Wang's matter.
Associate Justice David Mossop dismissed their application on Tuesday, finding that Mr Anforth's conduct was not "such as to indicate to a fair-minded lay observer that he might not be open to persuasion in relation to the issues which he had to decide".
Justice Mossop did criticise some of Mr Anforth's conduct. He said it was prudent for judges to generally not publicly disclose personal views.
He also criticised the "remarkable" decision of Mr Anforth to openly discuss issues about his daughter with a witness who was still to complete his evidence before the tribunal.
Justice Mossop described that as "unusual" and "imprudent", but said it did not indicate prejudgment.
He said nothing Mr Anforth had said or done was not enough to make a fair-minded observer think he wasn't open to persuasion or couldn't bring an impartial mind to the case.
"In my view that conduct was not such as might lead a fair-minded lay observer to apprehend that the Senior Member might not bring an unprejudiced mind to the resolution of the issues that he had to decide," Justice Mossop wrote.
