NURSING AND MIDWIFERY BOARD OF AUSTRALIA and WARD - [2022] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA and WARD [2022] WASAT 104
MEMBER:   DR S WILLEY, SENIOR MEMBER
MS C CONLEY, MEMBER
DR B JONES, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   25 NOVEMBER 2022
FILE NO/S:   VR 45 of 2021
BETWEEN:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
GRAHAME WARD
Respondent

Catchwords:

Nurses - Disciplinary proceedings - Whether practitioner engaged in professional misconduct - Whether practitioner engaged in unprofessional conduct - Whether practitioner engaged in unsatisfactory professional performance - Possession of child exploitation material - Whether fit and proper person to remain a nurse - Relevant principles in relation to penalty

Legislation:

Criminal Code Act 1913 (WA), s 220
Criminal Code Act 1983 (NT), s 125B(1)(a)
Criminal Code Act 1995 (Cth), s 474.19(1)(a)(f), s 474.19(1)(a)(i)
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1)(a), s 5, s 5(c), s 6, s 130, s 130(1), s 130(3), s 131, s 131(1), s 193, s 193(1)(a)(i), s 195, s 196(1), s 196(1)(b)(i), s 196(1)(b)(ii), s 196(1)(b)(iii), s 196(2)(c), s 196(4), Sch 2
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2)

Result:

Finding of professional misconduct
Practitioner disqualified from applying for registration for 2.5 years

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	N/A

Case(s) referred to in decision(s):

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Cox v Corruption and Crime Commission [2008] WASCA 199
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Vincent [2012] NSWNMT 2
Health Ombudsman v Field [2019] QCAT 243
Law Society of New South Wales v Walsh [1997] NSWCA 185
Lee v Health Care Complaints Commission [2012] NSWCA 80
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Marin v The Chiropractic Board of Australia [2020] SASCFC 74
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Australia and Shanab [2022] WASAT 89
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Black [2016] VCAT 892
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia v Lee [2019] SACAT 72
Medical Board of Australia v Singh [2020] SACAT 85
Minitti v Commissioner of Police [2010] WASCA 198
Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Nursing & Midwifery Board of Australia v Rankine [2019] SACAT 57
Nursing & Midwifery Board of Australia v Smith [2016] SAHPT 4
Nursing and Midwifery Board of Australia and Hindley [2019] VR 22
Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323
Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392
Nursing and Midwifery Board of Australia v Hutchinson [2018] VCAT 1705
Nursing and Midwifery Board of Australia v Omant [2015] VCAT 919
Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221
Panegyres v Medical Board of Western Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)
Quinn v Law Institute of Victoria [2007] VSCA 122; (2007) 27 VAR 1
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
Re Dr Abraham Stephanopoulos [2006] MPBV 12
Singh v Medical Board of Australia [2019] WASCA 51
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter has been referred to the Tribunal by the Nursing and Midwifery Board of Australia (Board or Applicant) pursuant to s 193 of Sch 2 to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
The referral arises because the Board reasonably believes that Grahame Ward (Practitioner or Respondent) has behaved in a way that constitutes 'professional misconduct' under s 5 of the National Law.
Having regard to that conduct, which we set out shortly, the Applicant submits that the Tribunal should make a number of orders, including an order pursuant to s 196(4) of the National Law, the effect of which would be to disqualify the Practitioner from applying for registration as a registered health professional for a period of five years. The Board also applies for its costs.
For the reasons that follow, we find that the Respondent engaged in professional misconduct of a very serious nature. However, we have determined that the Respondent should be disqualified from applying for registration for a period of 2.5 years. We also find that a costs order would be appropriate.

Background

The Respondent did not participate in the Tribunal proceeding.
The matter has been case managed by her Honour President Pritchard. On 9 November 2021 and 8 February 2022, orders were made enabling the Respondent, should he so wish, to file an outline of submissions as well as any evidentiary material on which he wishes to rely. The Applicant was expressly ordered to serve such orders on the Respondent.
The Respondent has not advised the Applicant or the Tribunal that he wishes to be heard. On 29 March 2022, President Pritchard ordered that in these circumstances, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (that is to say, on the documents) the Tribunal is to determine:
Issue 1:whether there is proper cause exists for disciplinary action. And if so, we should then consider:
Issue 2:what penalty should be imposed; and
Issue 3:whether and if so, what costs order should be made.
By way of background, we make the following factual findings.
The Respondent:
a)was born on 27 March 1985;
b)was first registered as a Registered Nurse on 28 November 2017;
c)was, at all material times, a Registered Nurse;
d)declared, during the material times, that his principal place of residence was in Western Australia; and
e)is not currently registered as a health practitioner in any health profession under the National Law, his registration as a Registered Nurse having lapsed on 4 July 2018.
The conduct which gives rise to the referral is that the Respondent is alleged to have accessed child pornography material by using a carriage service contrary to (then) s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (Code) and possessed child abuse material contrary to s 125B(1)(a) of the Criminal Code Act 1983 (NT) (NT Code). Further, it is alleged that the Respondent failed to notify the Board that he has been charged with three offences and that he had changed his address.
The Board particularises that conduct as follows:
a)between 1 January 2018 and 9 May 2018, the Respondent was registered under the National Law as a Registered Nurse;
b)on 9 May 2018, the Respondent was charged under s 474.19(1)(a)(i) of the Code with an offence of using a carriage service to access child pornographic material. The charged conduct was as follows:
i)on 1 January 2018, a named IP address was identified by Police as accessing 27 different 'infohash' files on the peer to peer file sharing network BitTorrent;
ii)within the 27 infohash files, a total of 56,249 files of interest were identified, which have previously been viewed by Police and confirmed to contain child exploitation material;
iii)subscriber checks were conducted in relation to the named IP address and resolved to an iiNet account of the Respondent at an address in Edgewater, Western Australia.
c)on 23 November 2018, the Respondent pleaded guilty and was convicted of two counts of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Code in the Northern Territory Supreme Court sitting at Darwin. The conduct was in relation to the conduct set out at [11(b)] above and:
i)on 9 May 2018, a search warrant was executed at an address in Nakara in the Northern Territory, the Respondent's residence;
ii)during the search warrant, the Respondent's mobile phone was examined. A notification was observed to indicate the download of a file titled 'nude-poolside-games.jpg' was completed. This file was viewed and classified as child pornography material, as it contained a number of naked, pre-teen children whose genitals and breasts were clearly visible. The file information on the phone indicates it was downloaded from a website on 8 May 2018 at 7.48 pm; and
iii)during the warrant, an Acer laptop was seized. The laptop contained video and image files containing child pornography material, downloaded between 5 and 8 May 2018.
On 9 May 2018, the Respondent possessed child abuse material contrary to s 125B(1)(a) of the NT Code. The Board particularised that conduct as follows:
a)on 9 May 2018, the Respondent was registered under the National Law as a Registered Nurse;
b)on 9 May 2018, the Respondent was charged with the possession of child abuse material contrary to s 125B(1)(a) of the NT Code. The charged conduct was as follows:
i)on 9 May 2018, a search warrant was executed at Nakara at the Respondent's address;
ii)during the search warrant, an Acer laptop was located in the Respondent's bedroom and forensically previewed by the Australian Federal Police Digital Forensics. The Acer laptop was found to contain 'recently viewed' files of child exploitation materials, including the following filenames:
A)lolitashouse - Arina 12Yo & Neil (11…);
B)12 Yo Girl Nude.mpg;
C)Bro and sis about 13yo.avi;
D)5 (PTHC).mpg; and
E)(pthc) Tracy (8yo) Anal Dreams.mgp; and
c)on 23 November 2018, the Respondent pleaded guilty and was convicted of the charge as set out in [12(b)] above in the Northern Territory Supreme Court sitting at Darwin.
The Respondent failed to provide the Board with written notice of the relevant events within seven days, contrary to s 130(1) of the National Law. The Board particularised that conduct as follows:
a)as set out at [11(b)] and [12(b)] above, on or about 9 May 2018, the Respondent was charged with offences punishable by 12 months imprisonment or more; and
b)the Respondent did not advise the Board of the charges within seven days as is required by s 130 of the National Law.
The Respondent failed to provide the Board with written notice of the relevant events within 30 days, in contravention of s 131(1) of the National Law. The Board particularised that conduct as follows:
a)on or about 22 January 2018 the Respondent commenced employment at the Royal Darwin Hospital as part of the Top End Health Service;
b)in or about January 2018, the Respondent relocated to an address in Karama, in the Northern Territory; and
c)the Respondent did not advise the Board of the changes to his principal place of residence within 30 days, as is required by s 131 of the National Law.

Board's allegations as to Respondent's conduct

The Board's referral alleges that the Respondent has behaved in a way that constitutes 'professional misconduct' for the purposes of s 193(1)(a)(i) of the National Law or, alternatively, constitutes 'unprofessional conduct' for the purposes of the National Law because the Respondent's conduct was substantially below the conduct reasonably expected of a registered health professional of an equivalent level of training or experience, and was inconsistent with the Respondent being a fit and proper person for registration under the National Law in that he:
a)used a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Code, as set out in [11] above;
b)possessed child abuse material contrary to s 125B(1)(a) of the NT Code, as set out in [12] above;
c)failed to provide the Board with written notice of the relevant events within seven days, thereby contravening s 130(1) of the National Law, as set out in [13] above; and
d)failed to inform the Board in writing of the relevant events within 30 days, contrary to s 131(1) of the National Law, as set out at [14] above.

Relevant statutory scheme

As stated, the Board has referred this matter to the Tribunal pursuant to s 193 of the National Law. The application of the National Law was recently set out by the Tribunal in Medical Board of Australia and Shanab (Shanab)[1] for which we are grateful. The following commentary is largely derived from Shanab[2] by reference to the Court of Appeal's decision in Panegyres v Medical Board of Western Australia (Panegyres).[3]
[1] Medical Board of Australia and Shanab [2022] WASAT 89 [57]-[67] (Hall SP, O'Sullivan SM, Marillier OM).
[2] Shanab [57]-[67].
[3] Panegyres v Medical Board of Western Australia [2020] WASCA 58 (Buss P, Murphy JA, Vaughan J).
The National Law applies as a law of Western Australia by virtue of s 4(1)(a) of the National Law. The Tribunal is the responsible tribunal for Western Australia for the purposes of the National Law.[4]
[4] See for example, National Law, s 6.
Pursuant to s 196(1) of the National Law, after hearing a matter about a registered health practitioner the Tribunal may decide whether, relevantly, the practitioner has engaged in any or all of the following:
i)unsatisfactory professional performance;[5]
ii)unprofessional conduct;[6] or
iii)professional misconduct.[7]
[5] National Law, s 196(1)(b)(i).
[6] National Law, s 196(1)(b)(ii).
[7] National Law, s 196(1)(b)(iii).
Unsatisfactory professional performance is defined to mean the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.[8]
[8] National Law, s 5.
Unprofessional conduct is defined to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.[9]
[9] National Law, s 5.
Professional misconduct is defined in s 5 of the National Law to include:
a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
b)more than one instance of unprofessional conduct that when considered together amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
In Panegyres, the Court of Appeal considered, in some detail, the statutory scheme for the National Law.[10] The principles that can be drawn from that decision can be summarised as follows:
a)unlike the other two defined terms (being unsatisfactory professional performance[11] and unprofessional conduct),[12] the definition of professional misconduct is inclusory and does not contain an exhaustive statement of the concept;
b)professional misconduct has both a performance component (paragraphs (a) and (b)) and a conduct component (paragraph (c));
c)under paragraphs (a) and (b) of the definition of professional misconduct, there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct; and
d)it follows from the non-exhaustive nature of the definition that the concept of professional misconduct is wider than that which is provided for in paragraphs (a) to (c). It can include conduct which does not fall within any of paragraphs (a), (b) or (c) in the definition.
For example, conduct which was formerly referred to in cases as infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency (in the sense described in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 763) (Allinson).
[10] Panegyres [137]-[157].
[11] National Law, s 196(1)(b)(i).
[12] National Law, s 196(1)(b)(ii).
A finding of professional misconduct under paragraphs (a) or (b) of the definition in s 5 of the National Law involves, in substance, two elements:
1)First, the practitioner's conduct as established must constitute one instance (in the case of paragraph (a)), or more than one instance (in the case of paragraph (b)), of unprofessional conduct.
2)Second, the conduct must individually, in the case of paragraph (a), or taken together, in the case of paragraph (b), amount to conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. This second element, (being the conduct that was substantially below the relevant standard), involves answering three questions.
A.What level of training or experience is possessed by the practitioner?
B.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
C.Was the conduct of the practitioner substantially below the standard identified?
In Shanab,[13] the Tribunal noted that the inquiry as to the second element is potentially different to the question that must be considered under the designated meaning of the term 'unprofessional conduct'. For unprofessional conduct, the standard is what might reasonably be expected of the practitioner. Often, but not always, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level of experience.
[13] Shanab [64].
In the context of professional misconduct, it is not enough that the practitioner's conduct is merely less than the relevant standard. The departure must be substantially below that standard. For the conduct to be substantially below the requisite standard it ought to reflect a degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience but that is not to suggest that conduct is only substantially below the relevant standard where it is inconsistent with the practitioner being a fit and proper person to hold registration.
Whether behaviour constitutes professional misconduct as being substantially below the relevant standard involves a qualitative evaluation rather than a binary determination. The question is one of degree.

The existence of a generally accepted professional standard is a question of fact. There are at least three means by which the Board may establish a relevant professional standard.
a)by expert evidence as to the generally accepted standards or duties;
b)professional conduct rules, including relevantly, in this instance:
i)the International Council of Nurses Code of Ethics for Nurses (revised 2012) (Code of Ethics); and
ii)the Board's Code of Conduct for Nurses (dated 1 March 2018) (Code of Conduct); and
c)an applicable statutory regime governing the conduct in question.
In addition, it is plain that there are some professional standards that can be accepted without evidence. Cases within this category have generally involved an element of moral turpitude, fraud or dishonesty.
Because, in this instance, the Code of Ethics or Code of Conduct are relied upon, ultimately the question is not merely whether the impugned conduct is in breach of the relevant code, but whether the conduct as found is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
Professional misconduct is plainly reserved for conduct which is more serious than unprofessional conduct. It is not entirely clear where the concept of unsatisfactory professional performance falls within the relevant hierarchy. In Panegyres, Vaughan JA observed that the three categories of behaviour are categories of different gravity.[14]
[14] Panegyres [139].
In considering how to characterise the Respondent's conduct, the Board submits it is important to bear in mind the underlining purpose of disciplinary proceedings. As was observed in Health Care Complaints Commission v Litchfield (Litchfield):[15]
Disciplinary proceedings against members of a professional are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.[16]
And:
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards to be applied by the Tribunal.[17]
[15] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Gleeson CJ, Meagher JA, Handley JA).
[16] Litchfield, 637E.
[17] Litchfield, 638C.
The point that arises from Litchfield is that the focus is not on the gravity of the conduct of itself, rather it is the degree of variation from proper professional standards.

Standard of proof

The standard of proof that applies in disciplinary proceedings is the civil standard. That is, the Tribunal is to be satisfied of the facts on the balance of probabilities.[18]
[18] Shanab [71].
Nevertheless, having regard to the nature of the proceeding, and consistent with his Honour Justice Dixon's remarks in Briginshaw v Briginshaw[19] (Briginshaw), the Tribunal must feel an actual persuasion of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out.
[19] Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, 361-362 (Dixon J).
Nevertheless, the Briginshaw test is not to be regarded as a 'third standard' that applies in disciplinary proceedings. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[20] the plurality of the High Court set out:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Board's submissions as to the Practitioner's conduct

Access to, and possession of, child exploitation material

[20] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170-171 (Mason CJ, Brennan, Deane and Gaudron JJ). This passage was cited with approval by Steytler P in Cox v Corruption and Crime Commission [2008] WASCA 199 [136].

The Board submits that child exploitation material 'is abhorrent from the perspective of contemporary community values'.[21] As was observed in Medical Board of Australia v Black,[22] 'that it is produced at all, and possessed by anyone, is abhorrent and to be universally condemned'.
[21] Re Dr Abraham Stephanopoulos [2006] MPBV 12, 3.
[22] Medical Board of Australia v Black [2016] VCAT 892 [35].
That conclusion is supported, it is submitted, by the terms of imprisonment that attach to the offences of possession and dissemination of such material under criminal law. For example, under the Criminal Code Act 1913 (WA), the maximum penalty for possession of child exploitation material is seven years imprisonment.[23]
[23] Criminal Code Act 1913 (WA), s 220.
In this instance, the Respondent's offences resulted in a custodial sentence of nine months.[24]
[24] Applicant's Book of Documents, page 62.
The Board submits that the Respondent's conduct, set out above at [11] and [12], falls within paragraph (a) of the definition of professional misconduct in the National Law because it is conduct which is 'substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience'.
Furthermore, and in the alternative, the Board submits if we are not minded to characterise the Respondent's conduct as falling within paragraph (a) of the definition of professional misconduct, then the conduct would fall within the definition of 'unprofessional conduct' on the basis that it is 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers'.
Paragraph (b) of the definition of 'professional misconduct' makes it clear that 'more than one instance of unprofessional conduct that when considered together amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience', can amount to professional misconduct.
By reason of the Respondent's conviction for three separate offences under the Code and the NT Code, the Board submits that his conduct falls within the terms of paragraph (b) of the definition of professional misconduct on the basis of three instances of unprofessional conduct.
The Board therefore submits that if the Tribunal is not satisfied that the Respondent's conduct falls within paragraph (a) of the definition of professional misconduct, it is captured by paragraph (b) on the basis of the cumulative considerations of the three convictions, each of which must be taken to be 'unprofessional conduct'.
In any event, the Board also submits that the Respondent's conduct falls within the terms of paragraph (c) of the definition of professional misconduct. That is to say, the Respondent's conduct is 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession'.
The concept of a 'fit and proper person' is somewhat elastic. In Australian Broadcasting Tribunal v Bond (ABT v Bond),[25] Toohey and Gaudron JJ explained:
The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from the context, from the activities in which the person is or will be engaged and ends to be served by those activities. The concept 'fit and proper person' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.
[25] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380 (ABT v Bond).
And later in ABT v Bond:[26]
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
[26] ABT v Bond, 388.
In Minitti v Commissioner of Police,[27] Pullin JA (Newnes JA and Mazza J agreeing) set out that:
The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348.
[27] Minitti v Commissioner of Police [2010] WASCA 198 [11].
The Board submits that, in this instance, the convictions for what are plainly abhorrent child exploitation offences ought to lead to a conclusion that the Practitioner is not a fit and proper person to maintain registration as a Registered Nurse. The Practitioner's conduct, in possessing child exploitation material, is conduct which is 'completely at odds with the notion of providing care to the community in a safe, culturally aware, and respectful manner, which lies at the heart of nursing practice'.[28]

Failure to report being charged

[28] Applicant's Submissions at para 25 citing principles 2 and 3 of the Code of Conduct.

The Board also explains that, by reason of s 130 of the National Law, there is an obligation for registered health professionals to report allegations of criminal conduct and the outcomes of any criminal proceedings (being 'relevant events' for the purposes of s 130(3) of the National Law).
In this instance, the Practitioner was required, but failed, to report to the Board that he had been charged by 17 May 2018.
The Board submits that the requirement to notify the regulator of misconduct (or alleged misconduct) is a mechanism aimed at the protection of the public. A failure to comply with these requirements impedes the ability of the Board to take steps to ensure the protection of the public.
A failure to comply with the obligations set out in s 130 of the National Law is unprofessional conduct (in accordance with paragraph (a) of the definition) on the basis the conduct contravened the National Law.
The Board submits that a failure to notify the regulator of criminal charges is a serious matter. Case authorities indicate that:
a)a failure to comply with the notification requirements of the National Law can be viewed as a 'serious aggravating feature' of professional misconduct;[29]
b)a claim of ignorance of the requirement to disclose is not an excuse;[30]
c)it is an imperative that any health professional who is charged with a criminal offence notifies the relevant regulator. Without such notification, the regulator is not in the position to take steps to protect the public and maintain professional standards;[31] and
d)a failure to comply with notification requirements may indicate that the practitioner has 'scant regard' for their professional responsibilities.[32]
[29] Nursing & Midwifery Board of Australia v Smith [2016] SAHPT 4 [20] (Smith); Health Ombudsman v Field [2019] QCAT 243 [33]
[30] Smith [21]; Nursing & Midwifery Board of Australia v Rankine [2019] SACAT 57 [27] (Rankine).
[31] Smith [22].
[32] Rankine [27].
As a result, the Board submits that the Practitioner's conduct in this regard constitutes unprofessional conduct.

Failure to provide notice of relevant events

The Board submits the Respondent was required to, under s 131 of the National Law, report to the Board that his principal place of practice and/or residence had changed in or about February 2018.[33] The Practitioner did not notify the Board of the change in his residential address. The failure to notify a change of address is, it is submitted, unprofessional conduct for the purposes of s 5 of the National Law.
[33] Applicant's Submissions, para 32.
This is so, because the failure constitutes a contravention of the National Law.
The Board submits that the statutory obligation to report compels health professionals to notify the relevant regulator of their principal place of residence. A failure to comply with this requirement impedes the ability of the Board to effectively communicate with a registered health professional and can unnecessarily complicate the consideration of matters referred to the Tribunal under s 193 of the National Law.

Board's submissions as to penalty

The Practitioner is not currently registered as a registered nurse, as he elected not to renew his registration upon its expiry on 4 July 2018. Therefore, the Tribunal has no jurisdiction to impose conditions upon the Practitioner's registration or to make orders cancelling or suspending his registration.
However, the Board submits that the Tribunal has jurisdiction under the National Law to impose a fine[34] on the Practitioner and/or to cancel his registration as a health professional for a specified period.[35]
[34] National Law, s 196(2)(c).
[35] National Law, s 196(4).
The Board's submissions refer to Marin v The Chiropractic Board of Australia,[36] where Kourakis CJ set out that:
It is well accepted that in sentencing for criminal offences the assistance provided by comparative sentences is limited. That is all the more the case in periods of disqualification imposed to maintain professional standards. In Lee v Health Care Complaints Commission, the Court of Appeal of New South Wales observed:[37]
(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b)such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is 'correct';
(c)the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d)the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e)since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection[.]
[36] Marin v The Chiropractic Board of Australia [2020] SASCFC 74 [79] (Kourakis CJ, Peek J and Nicholson J agreeing).
[37] Lee v Health Care Complaints Commission [2012] NSWCA 80 [34] (Tobias AJA, Macfarlan JA and Barrett JA agreeing).
While the range of disciplinary orders that may be imposed are broad and dependent on the facts and circumstances in question, the Board submits that conduct that falls within the definition of 'professional misconduct' as that term is defined in s 5(c) of the National Law 'will usually result in an order for cancellation of the practitioner's registration, although not in all cases'.[38]
[38] Medical Board of Australia v Singh [2020] SACAT 85.
The Board submits that, having regard to the circumstances of this case, the Tribunal can have no confidence in the Respondent's future ability to practise nursing in a competent and ethical manner. This is so having regard to the nature of the misconduct which represents 'a fundamental breach of the central professional responsibility of a registered nurse and warrants a disciplinary order that sufficiently communicates that conduct of this kind will not be tolerated in the profession'.[39]
[39] Applicant's Submissions, para 41.
The Board describes the Respondent as being 'indifferent' to the Tribunal proceedings and therefore, the Tribunal has no evidence as to any 'insight, remorse or rehabilitation' on his part. Such evidence, it is submitted, would be crucial in evaluating any risk as to whether the Respondent might engage in further misconduct. In the absence of the Respondent participating in the Tribunal proceedings, the Board submits that it is difficult for the Tribunal to have any confidence that he has acquired insight into the misconduct and that he is committed to competent and ethical practice going forward.[40]
[40] Applicant's Submissions, para 42.
While the Board acknowledges that there are expressions of remorse by the Practitioner, in the context of the materials considered in the criminal proceedings which the Tribunal has viewed, the Board nevertheless submits there is no evidence to support a conclusion that he has engaged in any kind of formal rehabilitation or counselling in relation to his use and access to child abuse material.
In that context, the Board submits that the Practitioner's failure to give the Tribunal any assurance of his commitment to the competent and ethical practice of nursing means that the Tribunal can have no confidence nor comfort that would allow the Practitioner to re-register as a nurse. In this regard, the Board cites the decision in Health Ombudsman v Field,[41] where the Queensland Civil and Administrative Tribunal set out that:
There is limited evidence before the Tribunal as to any reformation of character post-offending. The Tribunal has no evidence of any steps taken by Mr Field to address his underlying drinking problem. His unwillingness to engage in the referral process demonstrates a lack of understanding of the responsibilities of professionals and the role played by professional bodies in upholding the standards of a profession.
[41] Health Ombudsman v Field [2019] QCAT 243 [51].
The Board also submits that the Respondent's failure to comply with his obligations under s 130 and s 131 of the National Law might also be seen to indicate that the Respondent has insufficient regard to his professional obligations and responsibilities.[42]
[42] Applicant's submissions, para 40.
The Board's ultimate submission as to penalty is that a period of disqualification of five years from the date of the Tribunal's order is appropriate and accords with the relevant disciplinary principles that arise having regard to both the Respondent's criminal convictions for offences relating to child exploitation materials and also his failure to comply with two of the notification requirements of the National Law.

Issue 1: whether there is a proper cause for disciplinary action

Access to, and possession of, child exploitation material

The first matter her Honour President Pritchard has directed us to address is whether there is a proper cause for disciplinary action.
Based on the facts set out at [11] and [12] we find there plainly is. The Practitioner has been found guilty of three separate offences under the criminal law. Access to, and possession of, child exploitation material is egregious in any context. For a health professional such as a nurse, it is shockingly unacceptable. Such conduct is a serious breach of the criminal law which is reflected in the maximum penalties which may be imposed in respect of the commission of those offences.
Further, such conduct constitutes a serious breach of the Code of Conduct to the extent that the Code of Conduct requires a nurse not to engage in unlawful behaviour.[43]
[43] Clause 1.2(c) of the Code of Conduct.
In addition, in our view, such conduct constitutes a breach of the Code of Ethics in existence at that time to the extent the Code of Ethics required 'nurses at all times to maintain standard of personal conduct which reflect well on the profession and enhance its image and public confidence'.[44] Although the revised edition of 'The ICN Code of Ethics for Nurses' (2021 Code of Ethics) expressly requires nurses to 'uphold the dignity, freedom and worth of all human beings and oppose all forms of exploitation, such as human trafficking and child labour',[45] the 2021 Code of Ethics was not in existence in 2018 when the offences were committed by the Practitioner and hence not applicable.
[44] Principle 2 of the Code of Ethics.
[45] Principle 4.2 of the 2021 Code of Ethics.
The Practitioner's conduct is, at once, substantially below the standard that may be reasonably expected of a registered health professional of an equivalent level of training or experience and inconsistent with the Practitioner being a fit and proper person to hold registration as nurse. Having regard to the non-exhaustive nature of the definition of professional misconduct in the National Law, we also find that it to be conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency.
The Respondent pleaded guilty to the offences. Accordingly, the facts, as found, leave us in no doubt that the conduct occurred for the purposes of Briginshaw.
It follows that we find the Practitioner's access to, and possession of, child exploitation material to be professional misconduct for the purposes of the National Law.

Failure to notify the Board of the criminal charges

The Practitioner's failure to notify the Board of the charges against him is also a serious matter. We find, on the facts, that the Practitioner did fail to discharge his obligation under the National Law to notify the Board of the charges against him.
That failure, in the context of charges which raise serious questions as to whether the Practitioner is a fit and proper person to hold registration as a nurse, constitutes, we find, unprofessional conduct for the purposes of the National Law.
That is because we are satisfied that the failure to report is conduct which constitutes a contravention of the National Law. The Practitioner's failure to notify impedes the Board's efficient regulation of the profession from a public protection standpoint.

Failure to notify the Board of the change in address

The Practitioner's failure to update the Board of the change to his residential address contravenes s 131 of the National Law. We are satisfied on the facts that the Practitioner did fail in this regard.
However, we find this contravention to be less serious than a failure to report charges being laid with respect to the child exploitation material. We find it is conduct that constitutes unsatisfactory professional performance for the purposes of the National Law as it is conduct that is below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Because of our findings on conduct, it is necessary to now turn to the question of penalty.

Relevant principles as to sanction

The relevant principles that apply to the determination of an appropriate sanction in professional disciplinary proceedings are wellknown and settled.
The regulation of health professionals, such as nurses, is to ensure the public is protected and also to reassure the public that persons who are charged with administering and delivering health services are suitably qualified and competent to do so.
This is achieved by the making of orders so as to prevent persons who are unfit to practice from practising, or by making orders which secure the maintenance of proper professional standards.[46]
[46] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41]-[48] (Doyle CJ) (Craig).
Our jurisdiction is protective rather than punitive, and such protection operates with respect to the public and the profession.[47] The appropriate sanction is to be considered at the time any sanction is imposed, not the date of the conduct in question.[48]
[47] Craig [41].
[48] Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) [23] (A Legal Practitioner).
It is the conduct that attracts the sanction. In this regard care needs to be taken to ensure other conduct (such as, for example, an unsuccessful defence to the charges) does not form the basis of the sanction.[49] Where a choice of sanctions is available, the Tribunal will impose a sanction which maximises the protection of the public.[50] The dominant purpose of disciplinary regulation of, in this instance, the nursing profession is the protection of the public by the maintenance of proper professional standards.
[49] A Legal Practitioner [24] citing Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256.
[50] Quinn v Law Institute of Victoria [2007] VSCA 122; (2007) 27 VAR 1 [31] (Maxwell P).
Hence the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and the personal hardship to the practitioner, are necessarily secondary considerations.[51]
[51] Legal Profession Complaints Committee v Detata [2012] WASCA 214 [47].
In Medical Board of Australia and Singh (Singh Penalty),[52] the Tribunal set out the general principles in relation to the imposition of disciplinary sanctions. These principles were generally endorsed on appeal in Singh v Medical Board of Australia (Singh Appeal).[53]
[52] Medical Board of Australia and Singh [2017] WASAT 33 (S) [23]-[29].
[53] Singh v Medical Board of Australia [2019] WASCA 51 [26] (Quinlan CJ & Pritchard JA).
The plurality in the Singh Appeal noted that the case authorities on disciplinary proceedings include those relating to the regulation and discipline of legal practitioners. While the principles identified in those cases are relevant in the context of the regulation and discipline of medical professionals, (such as, in this instance, nurses), in applying the National Law, it is important to bear in mind the institutional and functional differences between professions. Furthermore, the ultimate duty of the Tribunal is to give effect to the relevant statutory provisions.[54]
[54] Singh Appeal [28] (Quinlan CJ and Pritchard JA).
The relevant principles include:
1)Whether there is a need to protect the public against further misconduct by the practitioner.[55]
[55] Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) [8] (Amsden (S)).
2)The need to protect the public through general deterrence of other practitioners from similar conduct.[56]
[56] Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 [103] (Johnson).
3)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession,[57] such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.[58]
[57] Amsden (S) [8].
[58] Craig [64].
4)In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.[59]
[59] Johnson [109].
5)Whether the practitioner has breached any:
a)Act;
b)Regulations;
c)Guidelines or Code of Conduct, issued by the relevant professional body; and
d)whether the practitioner has done so knowingly.
6)Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7)Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.[60]
8)The practitioner's disciplinary history.[61]
9)Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.[62]
10)The desirability of making available to the public any special skills possessed by the practitioner.
11)The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of practitioners and in the maintenance of proper standards of practice.[63]
12)The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness.[64] In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.[65]

Other health practitioner cases

[60] New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183 (The Court).

[61] Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 [93] (The Court).

[62] Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [35] (The Court).

[63] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [30(5)] (Buss JA).

[64] A Legal Practitioner (S) [25].

[65] Law Society of New South Wales v Walsh [1997] NSWCA 185, 44 (Beazley JA).

In its submissions, the Board referred to a number of case authorities involving health professionals accessing child pornography. The Tribunal has also located some other authorities which deal with the same issues. While these decisions do not bind us, they provide a level of guidance as to the appropriate sanction that might be imposed on the Practitioner having regard to the facts in question. These cases are as follows.
In Nursing and Midwifery Board of Australia v Pang (Pang),[66] Mr Pang, a nurse, was convicted, on his guilty plea, of the offence of knowingly possessing child pornography. The conduct involved an escalation in behaviour in that he attempted to photograph up the dress of a 12yearold female using a mobile telephone. Mr Pang also failed to notify the Board that he had been charged with criminal offences. Mr Pang was disqualified from applying for registration for four years. The Tribunal observed that:
As we did not hear from Mr Pang directly, we could not make findings about the degree to which he understands and has insight into his conduct. Having said that, we noted he pleaded guilty at the Magistrates' Court, and we accepted that he cooperated with the Board's investigation.[67]
[66] Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221 (Pang).
[67] Pang [60].
In Nursing and Midwifery Board of Australia v Brearley (Brearley),[68] Mr Brearley, a nurse, was convicted on his plea of guilty to 19 charges of using the internet to access child pornography, one charge of possessing child pornography and one charge of an offence referred to as 'upskirting'. The 'upskirting' was committed at his workplace and involved filming the genital area of a female nurse colleague, without her knowledge or consent, while they were both on duty. Mr Brearley was inter alia disqualified from apply for registration for a period of three years.
[68] Nursing and Midwifery Board of Australia v Brearley [2012] QCAT 323.
In Nursing and Midwifery Board of Australia and Hindley (Hindley),[69] Mr Hindley, a nurse, was convicted on his guilty plea, of using a carriage service to obtain child pornography. Mr Hindley searched for the material using search terms designed to locate it and he had viewed it, without saving it on the computer. He expressed genuine remorse and contrition and had undertaken courses and had an underlying health condition. He was disqualified for a period of two years.
[69] Nursing and Midwifery Board of Australia and Hindley [2019] VR 22.
In Medical Board of Australia v Hock Lee,[70] Dr Lee possessed child exploitation material. He was also subject to a paedophile restraining order (as a result of loitering conduct). Dr Lee failed to notify the Board of both the charge and his plea of guilty. He was disqualified for a period of four years.
[70] Medical Board of Australia v Lee [2019] SACAT 72.
In Nursing and Midwifery Board of Australia v Omant (Omant),[71] Mr Omant, a nurse, by his plea of guilty, committed three offences relating to the use of a carriage service to access child pornography and knowingly possessing child pornography. In reprimanding him and imposing various conditions on his registration, the Victorian Civil and Administrative Tribunal (VCAT) noted that the nurse had been effectively suspended for almost five years prior to the hearing and this was sufficient for the protection of the public. Mr Omant was made the subject of a range of extensive conditions by VCAT, including a course of psychotherapy, breath testing for two years, no nursing care for children and no night shifts for a period of two years.
[71] Nursing and Midwifery Board of Australia v Omant [2015] VCAT 919.
In Nursing and Midwifery Board of Australia v Buckley (Buckley),^[72] Mr Buckley, a nurse, was convicted of downloading child pornography. He possessed approximately 10,000 images of child pornography on his computer. His registration as a nurse lapsed after being charged. The Queensland Civil and Administrative Tribunal held that, had he been registered, it would have cancelled his registration and disqualified him from applying for registration for three years.
[72] Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392.
In Health Care Complaints Commission v Vincent[73] (Vincent), Mr Vincent, a nurse, had accessed 96 images of child pornography and had disseminated images via an internet chatroom. For the possession and dissemination of such materials, his registration was cancelled, and he was disqualified from reapplying for a period of four years.
[73] Health Care Complaints Commission v Vincent [2012] NSWNMT 2.
In Nursing and Midwifery Board of Australia v Hutchinson[74] (Hutchinson), Mr Hutchison, a nurse, had been convicted of knowingly possessing 46,000 images and movies containing child pornography, some of which were in the most serious categories of the Australian Child Exploitation Material Categorisation Scheme (ACEMS), involving sadism, bestiality, humiliation and penetration. After initially pleading not guilty, Mr Hutchison ultimately pleaded guilty to the offending. Nevertheless, he showed no real understanding as to the seriousness of his wrongdoing and submitted, in effect, 'that nothing bad was done to anyone'. He was disqualified for a period of six years having regard to the sheer volume of materials and the categories of images included in those downloaded.

Issue 2: our decision on penalty

[74] Nursing and Midwifery Board of Australia v Hutchinson [2018] VCAT 1705.

The review we have undertaken of cases involving health practitioners accessing child exploitation materials, in the context of a finding of professional misconduct, indicates that the ordinary result is cancellation of the practitioner's registration. Further, even if the practitioner's registration has lapsed, a period of disqualification is imposed for a specified period of time. The failure to report the criminal charges and conviction is also a very serious matter. The failure to notify of a change in a residential address is, we find, less serious.
We have decided that, in the circumstances of this case, a global penalty should be imposed.[75] This is consistent with the Board's submissions on penalty.
[75] A Legal Practitioner (S) [18].
We are mindful that our primary role is to protect the public, not to punish the practitioner. Our sanction needs to not only deter the practitioner from repeating the conduct in question (specific deterrence) but also to signal to other members of the profession of the consequences of such conduct (general deterrence).
Before we turn to set out the sanction we will impose, it is necessary to formally record that the Practitioner's conduct, in accessing and possessing child exploitation material, is depraved and disgraceful. In this regard, we can do no better than say what was said by the VCAT in Hutchinson:
[It] is, frankly, abhorrent that a member of the nursing profession would commit an offence that by its nature implicitly involves the exploitation of vulnerable children.
While it should not be necessary to deter members of the nursing profession from committing child pornography offences, we regard it as appropriate to signal, by our determinations, the serious consequences that will follow.[76]
[76] Hutchinson [41].
The Practitioner's conduct has breached the criminal law, the Code of Conduct and the Code of Ethics. It is the antithesis of what may be reasonably expected of a health professional, whose role it is to care for those who are unwell or otherwise in need of assistance.
To be able to practise a profession of such importance, significance and associated level of responsibility in our community is to be regarded, in our view, as a privilege. The Practitioner has done himself, and moreover, the nursing profession in general, a considerable disservice by engaging in such conduct. It is conduct that represents a very substantial departure from what may reasonably be expected of a registered nurse.
In imposing a sanction, we have not been aided by the Practitioner's nonparticipation in the Tribunal proceedings. Other than what may be gleaned from comments made by the Practitioner in court appearances in the Northern Territory, we have no real insight into whether the Practitioner:
a)has demonstrated insight into the seriousness of the conduct and how and why it occurred; and
b)has shown genuine remorse and has taken independent steps to reduce the risk of repetition.
While the Board's submissions on the implications arising from the Respondent's non-participation in the Tribunal proceeding may be accepted, it is also the case that the Practitioner has not sought to defend his actions at any level. In Buckley, the Board made submissions to the effect that a practitioner's failure to engage with the disciplinary process indicates a lack of insight and remorse and thus warranted a lengthier period of suspension.[77]
[77] Buckley [11]-[12].
Unlike in Buckley, where the practitioner chose not to contest the Board's case, the Practitioner has not engaged in the Tribunal proceeding at any level. This makes it very difficult, indeed impossible, for us to get an accurate sense of his thinking and state of mind as at the time the sanction is imposed.

What we do know, from the Applicant's Book of Documents, is that the Practitioner's health suffered after his arrest. From a review of the court transcripts, it is clear to us he had a level of insight into the seriousness of his conduct and was remorseful.
It was put to the Court by his counsel that 'he is absolutely disgusted in his behaviour and sees little future for himself'.[78] In his own words, he told the Court he was 'humiliated' and that his actions have cost him his career, many friendships, his dog and his partner. He had not spoken to his mother in six months, when he would otherwise call her everyday. He described his own actions as 'abhorrent' and 'socially detestable'. He also said that 'he wouldn't hurt a child'.[79] Those comments were made on 14 November 2018. He was sentenced on 23 November 2018.
[78] Applicant's Book of Documents, page 42.
[79] Applicant's Book of Documents, pages 45 to 48.
While his comments that he would not 'hurt a child' display a plain lack of insight into how child exploitation materials are produced, it is also apparent from his comments, and his counsel's submissions, that he accepts the detestable nature of his offending. He also pleaded guilty and, as we have set out, displayed some insight and was shameful. We therefore find he did demonstrate some insight into his conduct.
However, time has moved on. As things stand in 2022, we simply do not have any line of sight as to the Respondent's current state of mind, any regret and contrition, any training or other programs he has committed to as he looks forward or insights he has gained. We also have no idea whether the circumstances that led to the conduct have been addressed such that we can have a degree of confidence that there will no repeated conduct. Given that our focus is the protection of the public, our concerns in this regard are significant.
In terms of the nature of the child exploitation material possessed or accessed by the Practitioner, some of it falls into the most serious ACEMS categories.[80] For example, on the Practitioner's Zotac computer there was:
a)13 category 1 files;
b)3 category 2 files;
c)4 category 3 files;
d)29 category 4 files; and
e)1 category 5 file.
[80] There are five ACEMS categories from least to most serious. Category 1 involves naked children with no sexual activity. Category 2 includes non-penetrative sexual activity between children or solo-masturbation by a child. Category 3 includes non-penetrative sexual activity between children and adults. Category 4 includes penetrative sexual activity between children and adults. Category 5 includes sadism, bestiality, humiliation or torture of a child.
It is also the case that the following handwritten note was found in the Practitioner's bedroom: 'I love child porn and rape yum'.
It is in the Practitioner's favour that the conduct occurred over a relatively short time frame (a total of three or four days). However, against that, the Practitioner returned to view the material after a fivemonth interval. For that reason, the conduct was characterised by the Supreme Court in sentencing as 'to some extent as a course of conduct' given that it occurred on more than occasion (the two periods being 31 December 2017 /1 January 2018 and between 5 to 8 May 2018).[81] That said, it is not a long-standing pattern of conduct that had occurred over many months or years.
[81] Applicant's Book of Documents, page 54.
The Practitioner was, at time of the conduct, 33 years old but was a very junior nurse. His lack of nursing experience is, at some level relevant.[82] However, it cannot be said that he was a young man at the time of the offences. It is also the case that the Practitioner was only a consumer of the material, he did not distribute it nor seek to profit from it.
[82] Hutchinson [8].
We also find it relevant that it is now over four years since the offending. Throughout that entire period, the Respondent has not practised as a nurse. He has, in practical terms, already not been practising for four years. As was the case in Omant, we find that fact also informs the period of disqualification he should be subject to.
The Practitioner, on two occasions, accessed child exploitation materials, some of which have been classified in the most serious ACEMS categories. While we accept that the number of files he ultimately viewed (a total of approximately 167) was not overly voluminous, his conduct is such that he is not a fit and proper person to be registered as a nurse. A period of disqualification is the only appropriate sanction for the Practitioner's professional misconduct.
While he did show some insight into the offending and was remorseful as at the time of the criminal charges, that was now some four years ago. We simply have no idea of the current state of mind of the Practitioner, any steps he may have taken or what he has done to overcome the issues that led him down the deplorable path he chose to travel. Ultimately, on the evidence before us, we cannot be satisfied that he is taking steps to address what he needs to.
Having regard to his conduct and the relevant circumstances, we find the conduct to be less serious than in Buckley, Vincent and Hutchinsonwhere disqualification periods of three, four and six years were imposed. His conduct was more serious than in Hindley on account of the nature of the material he viewed, the handwritten note and our concerns as to his current prospects for rehabilitation and reform.
Having regard to all of these factors, we have settled on a disqualification period of 2.5 years from the date of these orders as being appropriate before the Practitioner may reapply for registration. The cumulative effect of the Practitioner's failure to renew his registration in July 2018, coupled with the imposition of a disqualification period of 2.5 years, is that the Practitioner will endure a period of de-registration of over six years for his conduct before he is able to reapply.
We have not imposed a five year disqualification period from the date of our orders, as pressed for by the Board. Such a penalty would, we consider, in all of the circumstances, be excessive and disproportionate.
As was explained in Hutchinson, we too emphasise that these orders do not mean the Practitioner will be able to re-register in 2.5 years' time, nor do they mean we have reached the view that he will be suitable to reregister at that time. The effect of our decision is no more than, in 2.5 years' time, he may apply to re-register.
If the Practitioner does apply for re-registration, it will be for the Board to consider that application taking into account its role in providing for the protection of the public. It is not our role to speculate or even comment further on the prospects of a future application to reregister as a nurse.

Issue 3: the question of costs

The Board seeks its costs in the amount of $7,756.30. A detailed schedule of costs and disbursements was filed together with short submissions.
While ordinarily a costs neutral jurisdiction,[83] the Tribunal retains a discretion to make orders for the payment of costs by a party.[84] The National Law also contemplates that a 'responsible tribunal' may make any costs order it considers appropriate.[85]
[83] SAT Act, s 87(1).
[84] SAT Act, s 87(2).
[85] National Law, s 195.
In proceedings commenced by a vocational regulatory body, such as the Board, the Tribunal will ordinarily make an order for the payment of costs where the regulator has been successful in making out its allegations. This is so because regulatory bodies perform their functions in the public interest and with limited resources.[86]
[86] Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343 [44]-[45].
In Quinlivan v Legal Profession Complaints Committee,[87] the Court of Appeal explained:
In Medical Board of Australia and Roberman [2005] WASAT 91 (S), the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. In this regard, the Tribunal said [30]:
That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.
[87] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) [10] (Pullin JA, Newnes JA, Murphy JA).
For these reasons, we are inclined to make a costs order in favour of the Board.
Although there is information in the materials before the Tribunal which suggests that the Practitioner was homeless back in 2019 following his release from prison, we do not have any up-to-date information about his current personal circumstances which might influence or otherwise inform our decision in relation to the payment of costs.
In Chiropractic Board of Australia and Ebtash,[88] the Tribunal set out the applicable principles as to assessment of costs. Such principles include approaching costs assessments in a 'robust and broadbrush approach'[89] in relation to the work undertaken as well as to ensure that costs are reasonable, necessary[90] and not excessive.[91] Importantly, the basis of a costs award is to compensate, not to punish.[92]
[88] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) [134]-[137] (Ebtash).
[89] Medical Board of Australia v Costley [2013] WASAT 2 [66].
[90] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) [48]-[49].
[91] Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 [69].
[92] Ebtash [135].
Having regard to the Board's schedule of fees, the party-party costs undertaken by a senior practitioner and junior practitioner (for the purposes of the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) are not excessive and appear reasonable. The conduct of the matter involved four attendances at the Tribunal, including one for over an hour. A total of $1,784.20 (5.5 hours between a senior and junior practitioner) was spent on drafting, settling and filing the Board's submissions which, in the circumstances, is not excessive. We therefore award the sum of $5,600.10 being sought by the Board in terms of legal costs.
Disbursements totalled $2,156.20 including the Tribunal application fee and service costs. These should also be recovered by the Board.
We award total costs in the amount of $7,756.30.

Conclusion

In the result, for the reasons explained, we have found the Practitioner engaged in professional misconduct, unprofessional conduct and unsatisfactory professional performance and that, as a result, he should be disqualified from applying to re-register as a nurse for a period of 2.5 years. A costs order in favour of the Board for $7,756.30 is also appropriate.
We should hear from the parties as to the appropriate orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
25 NOVEMBER 2022