Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith
[2025] SASCA 25
•20 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
PARAMEDICINE BOARD OF AUSTRALIA v JACKSON; PHYSIOTHERAPY BOARD OF AUSTRALIA v SMITH
[2025] SASCA 25
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
20 March 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION
These reasons address an appeal from a determination of a preliminary question of law in proceedings brought by the Paramedicine Board of Australia against Mr Jackson, and a question of law reserved for this Court’s determination in proceedings brought by the Physiotherapy Board of Australia against Mr Smith. Both proceedings concerned allegations of professional misconduct by the respondents, referred by the Boards for hearing and determination by the South Australian Civil and Administrative Tribunal (‘the Tribunal’).
The issues to be determined concern the scope of the statutory duty of a National Board to refer ‘a matter about a registered health practitioner’ to the Tribunal, and the jurisdiction of the Tribunal to hear and determine such a matter under ss 193 and 196 of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘the National Law’).
The Jackson proceedings included an allegation that Mr Jackson failed to advise the Board that, after making his application for registration but before being granted registration, he had been suspended from duty by his employer and charged with five criminal offences (‘Allegation 1’).
The first preliminary question of law before the Tribunal was:
Does the Tribunal have jurisdiction to consider and determine the respondent’s conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?
In her reasons, the primary judge found that s 193 required that the person the subject of the referral be a registered health practitioner at the time of the referral, and that s 193 only permitted a referral in respect of behaviour said to constitute professional misconduct that occurred while the person was registered.
Accordingly, in relation to Allegation 1, the primary judge answered the question of law as follows: ‘No. Only conduct occurring after the respondent was registered … may be the subject of a referral’.
The Boards challenge this answer on appeal, contending that a National Board’s duty to refer a matter, and the Tribunal’s jurisdiction to consider and determine a matter, extends to matters where (i) the registered health practitioner was not registered at the time of the referral; and (ii) the relevant conduct occurred prior to registration.
In the Smith proceedings, the Physiotherapy Board made a number of allegations of professional misconduct against Mr Smith, including an allegation concerning conduct that occurred prior to his registration under the National Law (‘Allegation 5’). The question of law referred for this Court’s determination is:
Does the South Australian Civil and Administrative Tribunal have jurisdiction to hear and determine Allegation Five in the initiating application filed by the Physiotherapy Board of Australia on 30 March 2022 [where] the conduct alleged in Allegation Five occurred prior to the Respondent’s registration under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) and his registration had lapsed at the time of the hearing and determination of the referral?
Held, per the Court:
1.In relation to the Jackson proceedings, it is appropriate to allow the appeal, set aside the primary judge’s answer to the first preliminary question of law as it relates to Allegation 1 and substitute the answer:
No. Whilst a referral may be made in respect of a practitioner no longer registered at the time of referral, only conduct occurring after the Respondent was registered on 22 May 2019 may be the subject of that referral.
2.In relation to the Smith proceedings, the answer to the question of law reserved for this Court’s determination is:
No. While jurisdiction is not affected by reason that the practitioner’s registration had lapsed at the time of the hearing and determination of the referral, only conduct occurring after the Respondent was registered may be the subject of a referral under s 193(1)(a)(i) of the National Law.
Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 6, sch 2, ss 3, 3(2)(a), 3A(1), 5, pt 4, pt 5, 35(1), 35(1)(g)(i), 35(1)(i), pt 7, 55(1), 55(1)(b), 55(1)(h), 81, 82, 108, 113, 130, 137, pt 8, 138, 139, 178(1)(b), 190, 193, 193(1), 193(1)(a)(i), 193(1)(a)(ii), 193(1)(b), 193(2), 194, 196, 196(1)(a), 196(1)(b), 196(2), 196(4), sch 7, cls 7, 14(2), referred to.
Craig v Medical Board (SA) (2001) 79 SASR 545; Health Care Complaints Commission v Do [2014] NSWCA 307; Maroulis v Psychology Board of Australia [2021] SASC 16; Paramedicine Board of Australia v Jackson [2023] SACAT 66, considered.
PARAMEDICINE BOARD OF AUSTRALIA v JACKSON; PHYSIOTHERAPY BOARD OF AUSTRALIA v SMITH
[2025] SASCA 25Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA
THE COURT: These reasons address issues arising in two separate proceedings in the South Australian Civil and Administrative Tribunal (the Tribunal). They relate to an appeal from the determination of a preliminary question of law in proceedings brought by the Paramedicine Board of Australia against Mr Jackson (the Jackson proceedings), and a question of law reserved for this Court’s determination in proceedings brought by the Physiotherapy Board of Australia against Mr Smith (the Smith proceedings).
Both the appeal and the question of law reserved are concerned with the scope of the statutory duty of a National Board to refer “a matter about a registered health practitioner” to the Tribunal, and the corresponding jurisdiction of the Tribunal to hear and determine a matter referred to it, under ss 193 and 196 of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law).
In the Jackson proceedings, the issues raised are whether the duty to refer, and jurisdiction to hear and determine, extend to (i) a matter about a registered health practitioner who is not registered at the time of the referral, and (ii) a matter about a registered health practitioner where the behaviour the subject of the matter occurred prior to the practitioner’s registration.
In the Smith proceedings, only the second of these issues arises for determination.
Before this Court, the Paramedicine Board of Australia and the Physiotherapy Board of Australia had common representation, and will be referred to jointly in these reasons as the Boards. Mr Jackson and Mr Smith will be referred to as the Practitioners. Whilst Mr Jackson did not participate in the appeal, it is convenient to refer to the submissions advanced on behalf of Mr Smith as the submissions of the Practitioners.
Background
A detailed understanding of the matters in issue in the Tribunal proceedings concerning Mr Jackson and Mr Smith is not necessary to determine the matters in issue in this Court. However, it is appropriate to outline certain aspects of the context in which these matters have arisen.
The Jackson proceedings
The Paramedicine Board referred a matter to the Tribunal alleging that Mr Jackson, a paramedic, had engaged in ‘professional misconduct’.[1] As part of the matter referred, an allegation was made concerning conduct occurring prior to his registration under the National Law.[2] In particular, in Allegation 1, it was alleged that Mr Jackson failed to advise the Board that, after making his application for registration but before being granted registration, he had been suspended from duty by his employer and charged with five criminal offences.[3] This failure was said to be contrary to the Code of Conduct for Paramedics[4] and s 130 of the National Law.
[1] Within the meaning of paragraphs (a) and/or (c) of the definition of “professional misconduct” in s 5 of the National Law.
[2] The allegation concerns a failure to disclose relevant information in his application for registration, but is alleged to involve professional misconduct under s 193(1)(a)(i), rather than an improperly obtained registration under s 193(1)(a)(ii).
[3] Being four counts of indecent assault, and one count of compelled sexual manipulation, relating to an incident involving a work colleague.
[4] Being a Code of Conduct developed and approved by the Paramedicine Board of Australia under s 39 of the National Law.
The referral also included a further allegation, Allegation 2, to the effect that Mr Jackson made a false or misleading declaration in his application to renew his registration. The declaration was alleged to be false or misleading by reason that his answers to questions relating to his employment and criminal history did not make reference to his suspension and criminal charges mentioned above.
The Boards’ case is that the alleged conduct, taken individually, and as a whole, constituted ‘professional misconduct’, including by reason that it was inconsistent with Mr Jackson being a fit and proper person to hold registration in the profession.
In addition to Allegation 1 involving conduct that occurred prior to his registration under the National Law, Mr Jackson’s registration as a paramedic had lapsed by the time his matter was referred by the Board to the Tribunal.
Following the referral of the matter by the Board, the Tribunal identified preliminary questions of law for determination. The first question concerned the jurisdiction of the Tribunal:
(1)Does the Tribunal have jurisdiction to consider and determine the respondent’s conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?
The Tribunal’s answer to that question was:
In respect of the first allegation: No. Only conduct occurring after the respondent was registered … may be the subject of a referral.
In respect of the second allegation: Yes.
On the Tribunal’s reasoning, there were two obstacles to (or ‘temporal limitations’ upon) its jurisdiction in respect of Allegation 1. The first was that s 193 required that the person the subject of the referral be a registered health practitioner at the time of the referral, whereas Mr Jackson’s registration had lapsed by the time his matter was referred. The second was that s 193 only permitted a referral in respect of behaviour said to constitute professional misconduct that occurred while the person was a registered health practitioner, whereas Mr Jackson’s failure to disclose his suspension and charges occurred prior to his registration.
On the other hand, the Tribunal concluded that it had jurisdiction in relation to Allegation 2. Whilst Mr Jackson’s registration had lapsed by the time his matter was referred, s 138 of the National Law permitted referral in such circumstances where it related to a person’s behaviour while registered. Unlike his behaviour the subject of Allegation 1, Mr Jackson’s behaviour the subject of Allegation 2 occurred while he was registered.[5]
[5] It occurred during the process of renewing his registration.
The appeal to this Court involves a challenge to the Tribunal’s answer to Question 1 in respect of Allegation 1. The Boards contend that this allegation fell within the scope of a matter properly referred under s 193 of the National Law (without any need for reference to s 138), and that the answer that ought to have been given was:
Yes. The [Tribunal] has jurisdiction in referral proceedings commenced under s 193 of the National Law in relation to conduct that occurred prior to registration irrespective of whether the practitioner is currently registered at the time of the referral.
The Smith proceedings
The Physiotherapy Board referred a matter to the Tribunal alleging that Mr Smith, a physiotherapist, had engaged in ‘professional misconduct’. As part of the matter referred, specific allegations were referred relating to conduct that occurred during the period of his registration under the National Law. However, one of the allegations included within the referral (Allegation 5 – alleging that he engaged in sexualised interactions with a child) related to conduct that occurred prior to his registration under the National Law. The Board’s case is that the conduct taken individually, and as a whole, was inconsistent with him being a fit and proper person to hold registration in the profession.
At the time of referral, Mr Smith was registered. However, prior to the hearing and determination of the referral, his registration lapsed.
A hearing has occurred in relation to all of the allegations, but no decision has been made. Following the Tribunal’s decision in the Jackson proceedings, it raised whether it had jurisdiction to determine Allegation 5. In those circumstances the Board applied to refer, and the Tribunal referred, a question of law as follows:
Does the South Australian Civil and Administrative Tribunal have jurisdiction to hear and determine Allegation Five in the initiating application filed by the Physiotherapy Board of Australia on 30 March 2022 [where] the conduct alleged in Allegation Five occurred prior to the Respondent’s registration under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) and his registration had lapsed at the time of the hearing and determination of the referral?
It was accepted by the parties that in circumstances where Mr Smith was registered at the time of the referral, it did not matter that his registration subsequently lapsed. However, the Boards further contended that it did not matter that Mr Smith’s behaviour the subject of the referral occurred prior to his registration, and hence that the question of law reserved should be answered:
Yes. Neither the fact that the conduct occurred prior to the Respondent’s registration under the National Law or his registration lapsing mean that the Tribunal does not have jurisdiction.
The National Law
The National Law is a national scheme for the regulation of health practitioners. It provides for the national registration and accreditation of health practitioners (and students). It is given force in South Australia by the Health Practitioner Regulation National Law (South Australia) Act, with the text of the National Law being located in Schedule 2 to that Act.
The version of the National Law applicable in the present matters is the version in force at the time of the referrals, being March 2022 in the case of the Smith proceedings and February 2023 in the case of the Jackson matters. It was agreed between the parties that it was appropriate to use the version applicable from 21 October 2022 to 14 May 2023 because the changes from the preceding version are not presently relevant.
The provisions of the National Law must, of course, be construed having regard to their text, context and purpose. Further, by reason of clause 7 of the Schedule 7 provisions governing the interpretation of the National Law, ‘the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation’. It was agreed by the parties that there were no extrinsic materials of any assistance in addressing the issues of construction to be determined by this Court.
The objectives of the National Law, and the national scheme for the registration and accreditation of health practitioners which it establishes, are set out in s 3. They relevantly include providing ‘for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’ (s 3(2)(a)). Under s 3A(1), the ‘main guiding principle’ of the scheme is that protection of the public, and public confidence in the safety of services provided by registered health practitioners, are paramount. Other guiding principles include that restrictions on the practice of the health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
In construing the National Law in Maroulis v Psychology Board of Australia,[6] Bleby J applied the following descriptions of the well-recognised purpose of public protection that informs the construction of legislation concerned with professional regulation, conduct and discipline:[7]
In Craig v Medical Board (SA), Doyle CJ explained the purpose of disciplinary proceedings:[8]
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
The protective purpose of disciplinary proceedings continues to be emphasised. In Health Care Complaints Commission v Do, the New South Wales Court of Appeal observed:[9]
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
[6] Maroulis v Psychology Board of Australia [2021] SASC 16.
[7] Maroulis v Psychology Board of Australia [2021] SASC 16 at [38]-[39] (Bleby J).
[8] Craig v Medical Board (SA) (2001) 79 SASR 545 at [41] (Doyle CJ, Williams and Martin JJ agreeing).
[9] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] (Meagher JA, Basten and Emmett JJA agreeing).
The legislative scheme established through the National Law involved the establishment of the Australian Health Practitioner Regulation Agency (Part 4), and National Boards (Part 5) for each ‘health profession’. It provides for 16 different ‘health professions’ (s 5), including paramedicine (paragraph (ja)) and physiotherapy (paragraph (l)).
The functions of the National Board for a health profession (s 35(1)) relevantly include the registration of, and oversight and referral of notifications concerning, registered health practitioners:
(a)to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;
…
(g)to oversee the receipt, assessment and investigation of notifications about persons who–
(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; …
(ii) …
…
(i)to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;
…
Pursuant to the definitions contained in s 5, a ‘health practitioner’ is ‘an individual who practises a health profession’. And a ‘registered health practitioner’ is an individual who:
(a)is registered under this Law to practise a health profession, other than as a student; or
(b)holds non-practising registration under this Law in a health profession.
Part 7 of the National Law (‘Registration of health practitioners’) provides for a scheme for the registration of health practitioners. It establishes different forms of registration – general (ss 52-56), specialist (ss 57-61), provisional (ss 62-64), limited (ss 65-72) and non-practising (ss 73-76) registrations. The sections listed address various matters relevant to the eligibility, qualifications and suitability of individuals for the various forms of registration. Part 7 also provides for applications for registration and their assessment (ss 77-85), as well as registration of students (ss 86-93).
A consequence of registration is that a person is entitled to use certain protected titles (s 113). The National Law also imposes obligations on registered health practitioners.
Part 8 of the National Law (‘Health, performance and conduct’) provides, among other things, for a scheme for the professional discipline of registered health practitioners. It contains requirements for: making and assessing mandatory and voluntary notifications (Divisions 2, 3, 4, 5 and 6); taking immediate action to address a registered practitioner’s ‘conduct, performance or health’ or to protect public health or safety (Division 7); conducting investigations of a registered health practitioner, whether arising from a notification or for any other reason (Division 8); undertaking health and performance assessments (Division 9); and taking disciplinary action (Divisions 10, 11 and 12).
The power to take disciplinary action in relation to the conduct of registered health practitioners is conferred on each of the National Board for the relevant health profession (Division 10),[10] a panel established by the National Board (Division 11)[11] and the responsible tribunal (Division 12).[12] However, neither a National Board (ss 178(1)(b)) nor a panel (s 190) may exercise powers in relation to a matter that is required to be referred to a responsible tribunal under s 193. In South Australia, the responsible tribunal is the South Australian Civil and Administrative Tribunal (defined earlier in these reasons as ‘the Tribunal’).[13]
[10] The National Law, ss 178-180.
[11] The National Law, ss 181-192.
[12] The National Law, ss 193-198.
[13] Health Practitioner Regulation National Law (South Australia) Act, s 6.
In considering the duty of the relevant National Board in relation to referrals, and the jurisdiction of the Tribunal in relation to the same, the starting point is the text of s 193 of the National Law:
193—Matters to be referred to responsible tribunal
(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i) the practitioner has behaved in a way that constitutes professional misconduct; or
(ii) the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or
(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
(2) The National Board must—
(a) refer the matter to—
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or
(ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; and
(b) give written notice of the referral to the registered health practitioner or student to whom the matter relates.
It can be seen that s 193 obliges a National Board to refer a matter about a registered health practitioner to the Tribunal where either s 193(1)(a) or s 193(1)(b) is established. Only the former is presently relevant. It applies where a National Board entertains a reasonable belief on one of two matters: that the practitioner has behaved in a way that constitutes ‘professional misconduct’ (s 193(1)(a)(i)) or that the practitioner’s registration has been improperly obtained by reason of false or misleading information (s 193(1)(a)(ii)).
The concept of ‘professional misconduct’ is defined in s 5:[14]
professional misconduct, of a registered health practitioner, includes—
(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.
[14] The concept of ‘unprofessional conduct’ is also defined in s 5.
Under s 194, the parties to a matter being heard by the Tribunal are the registered health practitioner who is the subject of the proceedings and the National Board that referred the matter. Once the proceedings are commenced, the Tribunal has the jurisdiction conferred on it under s 196:
196—Decision by responsible tribunal about registered health practitioner
(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following—
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment;
(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following—
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner's registration, including, for example—
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner's registration for a specified period;
(e) cancel the practitioner's registration.
(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b) prohibit the person, either permanently or for a stated period, from doing either or both of the following—
(i) providing any health service or a specified health service;
(ii) using any title or a specified title.
The powers of the Tribunal thus involve it determining whether there is a case to answer (s 196(1)(a)) and, if there is, whether the conduct falls into any of the categories identified in s 196(1)(b). If the conduct does fall into one of those categories, then the Tribunal has the power to impose any of the outcomes listed in s 196(2), including a caution or reprimand, a condition on registration, a fine, or a suspension or cancellation of registration.
Section 196(4) addresses situations where the Tribunal cancels a person’s registration, or the person does not hold registration. In those situations, the Tribunal may also disqualify the person from applying for registration for a specified period, or prohibit a person from providing health services or using a title either permanently or for a stated period.
Also relevant in this context are ss 138 and 139, which are directed to the situation of persons formerly registered as health practitioners:
138—Part applicable to persons formerly registered under this Law
(1) This section applies if a person was, but is no longer, registered in a health profession under this Law.
(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession.
(3) For the purposes of subsection (2), this Part (other than Division 2 and Division 6) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.
139—Part applicable to persons formerly registered under corresponding prior Act in certain circumstances
(1) This section applies if a person—
(a) was registered in a health profession under a corresponding prior Act; and
(b) is not, and has not been, registered in the health profession under this Law.
(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered under the corresponding prior Act as if the person were registered under this Law by the National Board established for the health profession.
(3) However, subsection (2) applies only to the extent—
(a) a notification about the person's behaviour could have been made under the corresponding prior Act; and
(b) proceedings of that type could have been taken under the corresponding prior Act.
(4) For the purposes of subsection (2), this Part (other than Division 2 and Division 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.
In summary, s 138 permits and facilitates notifications and proceedings in relation to a formerly registered person’s behaviour ‘while registered’. And s 139 does similarly in relation to a person formerly registered under corresponding prior legislation and his or her behaviour ‘while registered’ under that legislation.
The primary judge’s reasons
The primary judge commenced her reasons in the Jackson proceedings by setting out the issues that had arisen in terms similar to the introductory section of these reasons. Her Honour then described the approach to construction of the National Law, and the key provisions, again in terms similar to these reasons.
In then focusing upon the terms of the National Board’s referral function under s 193, her Honour commenced by observing that by using the word ‘must’,[15] the section mandated or obliged the National Board to make referrals to the Tribunal (and give notification to the registered health practitioner) in the circumstances provided for. Her Honour next observed that s 193 was limited in its operation to ‘registered health practitioners’.[16]
[15] Paramedicine Board of Australia v Jackson [2023] SACAT 66 (‘Reasons’) at [34]. Noting that cl 14(2) of Schedule 7 of the Health Practitioner Regulation National Law (South Australia) Act provides that the word ‘must’ used in relation to a power indicates that the power is required to be exercised.
[16] Reasons at [35]. Although not relevant for present purposes, the section also applies to students.
The primary judge noted the definition of a registered health practitioner (set out earlier in these reasons), and the focus of many of the provisions of the National Law upon such persons. However, her Honour also noted that the National Law on occasion used the term ‘person’ rather than ‘registered health practitioner’. In her Honour’s view, when the word ‘person’ was used, it signalled an intention to include both those who are registered health practitioners and those who are not. The word was used where the individual concerned may not be a registered health practitioner, or the provision is not directed to that individual qua registered health practitioner.[17]
[17] Reasons at [37]-[38]. Her Honour gave the prohibition upon using a protected title in s 113 as an example of a provision directed at a ‘person’, irrespective of whether they are a registered health practitioner.
Given this contextual consideration, the primary judge considered it significant that the target of s 193 was ‘registered’ health practitioners. Her Honour considered it critical that this status exist at the time of the referral:[18]
… there is no basis for the principle of ambulatory operation to be displaced. The status of the person as a registered health practitioner should, in accordance with that principle, be taken as the status at the time that the section is invoked. That is, at the time of the referral. As will become apparent later, that conclusion is reinforced by other indicators.
[18] Reasons at [41].
The primary judge proceeded to make some further observations about s 193. She observed that referral and notification were conditioned upon the National Board either holding a reasonable belief that the registered health practitioner had behaved in a way that constituted professional misconduct (s 193(1)(a)(i)) or had improperly obtained their registration (s 193(1)(a)(ii)), or the Board being required to do so by a panel (s 193(1)(b)).[19] Her Honour noted the compendious reference to ‘behaviour’ in s 193(2), and the definition of ‘professional misconduct’ in s 5.[20] The referral in the Jackson proceedings had been made on the basis of a belief that the practitioner had behaved in a way that constituted professional misconduct.[21]
[19] Reasons at [42].
[20] Reasons at [43]-[45].
[21] Reasons at [46].
The primary judge next considered the significance of the timing considerations addressed by ss 138 and 139 of the National Law. Her Honour made three observations about these sections.
The first observation was that, in contrast to s 193 (which was directed to referrals concerning ‘registered’ health practitioners), these provisions were directed towards notifications and proceedings concerning ‘formerly registered’ health practitioners. In her Honour’s view, the application of this section to ‘formerly registered’ health practitioners explained the need for a power to make an order disqualifying the person from future registration for a specified period (s 196(4)) in order to protect the public.[22]
[22] Reasons at [51].
The second observation made by the primary judge in relation to ss 138 and 139 was that, in contrast to the mandatory terms of s 193, these sections are in discretionary terms. In her Honour’s view, the conferral of a discretionary power on the National Board was ‘consistent with the fact that whilst it [will] always be appropriate to have an allegation of professional misconduct against a registered health practitioner determined, it may not [be] necessary for the protection of the public to proceed in relation to a person who is no longer registered’.[23]
[23] Reasons at [52].
The third observation was that ss 138 and 139 concern acts of notification and the taking of proceedings, whereas s 193 concerns referrals. Whilst all of these provisions relate to actions concerning ‘behaviour’ of the type described earlier, the former provisions are concerned with the behaviour of a ‘person’ who ‘was, but is no longer’ (s 138) or a ‘person’ who ‘is not, and has not been’ (s 139) a registered health practitioner under the National Law. In her Honour’s view, there is a clear contrast between the application of these provisions to ‘persons’ who were ‘formerly registered’ (under the National Law (s 138)) or a predecessor law (s 139)), and the operation of s 193 in requiring the National Board to make referrals in respect of currently registered health practitioners. Her Honour added that the behaviour covered by ss 138 and 139 is confined to the relevant person’s behaviour while registered under the National Law (s 138) or predecessor law (s 139).[24]
[24] Reasons at [53]-[57].
After making these observations as to the operation of ss 138 and 139, the primary judge said that they gave ‘full effect to the distinction signalled by the drafter between a “person” and the defined term “registered health practitioner”’. Her Honour also considered that her observations gave effect to the different tenses used in the sections, reflecting the references in s 193 to a registered health practitioner (defined in terms that a person ‘is’ registered under the National Law), and the references in ss 138 and 139 to a person who ‘was’ registered under the National Law (s 138) or predecessor law (s 139) but is not now registered.[25]
[25] Reasons at [58]-[59].
The primary judge concluded that there were therefore two temporal limitations upon the legislative scheme for referrals (s 193) and determinations (s 196), with those referrals confined by requirements that the referral relate to (i) a person having the status of a registered health practitioner at the time of referral, and (ii) behaviour that occurred while the person was a registered health practitioner.[26]
[26] Reasons at [60].
The primary judge considered that these limitations were consistent with the purpose of the National Law being to protect the public:[27]
That the legislation distinguishes between persons who are now registered or not registered, and whether the impugned behaviour occurred whilst they were registered or at some other time, is consistent with the primary purpose of the National Law being to protect the public with respect to the services that registered health practitioners are entitled to provide. The scheme is primarily aimed at the person’s future conduct as a health practitioner and the risk posed to the public. The scheme provides a more limited authority to the Board to take action with respect to former registered health practitioners. Such persons are not an immediate risk to the public in relation to the provision of health services that they were entitled to perform when registered. However, it is necessary for the protection of the public in some circumstances to restrict the person’s possible activity in a related field, or to allow for the condemnation of wrongful behaviour, and to provide findings upon which any future application for registration by the person will be treated. Such additional purposes necessitate the conferral of some power to respond to the conduct of a person even where they are no longer a registered practitioner.
[27] Reasons at [61].
Analysis
Before this Court, the Boards challenge the two temporal limitations upon the legislative scheme for referrals and determinations identified by the primary judge; namely, that a National Board’s duty to refer (s 193), and the Tribunal’s corresponding jurisdiction to determine (s 196), are confined by requirements that the referral relate to (i) a person having the status of a registered health practitioner at the time of referral, and (ii) behaviour that occurred while the person was a registered health practitioner.
It may be accepted that there is no clear textual basis in ss 193 or 196 for either of the temporal limitations identified by the primary judge. In identifying these limitations, the primary judge relied heavily on the references in ss 193 and 196 to a ‘registered health practitioner’, and the use of the present tense ‘is’ when defining a registered health practitioner in s 5 as a person who ‘is registered’ to practise a health profession.
In challenging the primary judge’s approach, the Boards emphasise that the gateway (‘a matter about a registered health practitioner’) common to both the duty to refer (s 193) and the jurisdiction to determine (s 196) is articulated by reference to the topic or subject matter of the referral and jurisdiction, rather than the person or practitioner (or their status at the time of the referral). Whilst accepting that the gateway includes reference to the status of a registered health practitioner, the Boards contend that this is a matter of limited significance given that a matter can sensibly be said to be ‘about’ a person with a particular status regardless of whether the person still has that status. By way of illustration, they argue there may be ‘a matter about a youth’, regardless of whether the youth has become an adult; and there may be ‘a matter about a professional footballer’ even if the footballer is injured or retired and no longer playing.
The Boards further emphasise that when the legislative description of the subject matter of the referral duty and jurisdiction is followed through, it focusses upon the conduct or behaviour engaged in, and invites a consideration of circumstances with an apparently broader focus than the period of registration.
In summary, they contend that the references to the status of a registered health practitioner in ss 193 and 196 do not provide a strong foundation for any temporal limitation requiring that this status exist either at the time of the relevant behaviour or at the time of the referral.
There is some force in the Boards’ submissions concerning the subject matter nature of the referral and jurisdiction provisions. Sections 193 and 196 both operate in relation to a ‘matter’. It is the ‘matter’ that is referred to the Tribunal, rather than the registered health practitioner. Further, the matter is then defined or identified in s 193(1)(a) by reference to a belief either that a practitioner has behaved in a way that constituted professional misconduct (s 193(1)(a)(i)) or that registration was improperly obtained by reason of false or misleading information (s 193(1)(a)(ii)).[28] The fact that the referral duty is described by reference to, and is apparently directed towards, behaviour falling within certain subject matters or topics provides some support for the construction contended for by the Boards rather than a construction which turns on the status of the relevant person at a particular point in time.
[28] The obligation to refer a matter to the Tribunal also includes situations where a panel has required that referral (s 193)(1)(b)).
The Boards also rely upon several other textual, contextual and purposive considerations which they contend support their broader construction of the referral duty and jurisdiction under ss 193 and 196. In addressing these considerations, it is convenient to commence by focussing upon those which bear upon the first of the suggested temporal limitations, namely that the referral must relate to a person having the status of a registered health practitioner at the time of referral.
The first temporal limitation – registered at the time of referral
For the reasons already given, we are not persuaded that the references to a registered health practitioner in ss 193 and 196 provide any significant support for the first temporal limitation (namely, that any referral or determination relate to a person having the status of a registered health practitioner at the time of referral). Further, it seems to us that there are several other textual, contextual and purposive indicators which tell against any such limitation.
These indicators include the terms of s 196(4). This subsection gives the Tribunal power to disqualify a person from applying for registration for a specified period, or to prohibit a person from providing a health service or using a title. Importantly, the introductory words in s 196(4) provide that the Tribunal may make an order to this effect not only where it has decided to cancel a person’s registration, but also where the person does not hold registration. It thus involves clear recognition that the Tribunal’s jurisdiction extends to granting relief against people not holding registration. Whilst this could be construed as confined to persons who held registration at the time of the referral, but ceased to be registered at some point in time during the Tribunal’s consideration of the matter, this seems an artificially narrow reading of the subsection. In our view, s 196(4) is a reasonably powerful textual or contextual indication of an intention that referrals not be confined to matters involving persons who are registered practitioners at the time of referral.
Another textual or contextual indication of this broader intention is found in the s 35(1) description of the functions of the National Boards. The list of functions includes overseeing the receipt, assessment and investigation of notifications about persons who ‘are or were registered’ as health practitioners (s 35(1)(g)(i)). It also includes referring matters about health practitioners who ‘are or were registered’ to the Tribunal (s 35(1)(i)). The latter in particular is difficult to reconcile with the primary judge’s conclusion that the duty to refer is confined to matters involving persons registered as at the date of the referral.
In response to these textual and contextual indications, the Practitioners rely upon ss 138 and 139 of the National Law. They argue that these sections, by making some provision for notifications and proceedings in relation to persons no longer registered as health practitioners, do two things. They justify or explain the textual references in the National Law to referrals in relation to persons who are no longer registered. And they provide contextual support for an intention or premise that such persons would not otherwise be the subject of the referral duty or jurisdiction.
In our view, this overstates the significance of these sections. On our reading of these sections, they are not intended as some supplementary conferral of a discretionary power to refer persons who are no longer registered practitioners. Rather, they are deeming provisions intended to facilitate the operation of the provisions which follow in relation to both notifications and referrals. In our view, they do not provide any significant support for the first of the temporal limitations upon the scope of the referral power and jurisdiction in ss 193 and 196 of the National Law.
Nor, in our view, does the differing use of the terms ‘person’ and ‘registered health practitioner’ in various places within the National Law provide any support for that temporal limitation. It may be accepted that ‘person’ is generally used as a description which extends beyond a ‘registered health practitioner’. Nevertheless, for the reasons already explained, we do not consider that the reference to a ‘registered health practitioner’, when describing the subject matter of a referral, provides a basis for confining referrals to matters where that status exists at the time of the referral. Once it is accepted that s 193 is directed towards a subject matter or topic, the use of the label ‘registered health practitioner’ as opposed to ‘person’ is of limited significance.
Finally, it seems to us that the construction contended for by the Boards is more consistent with the National Law’s protective purpose. The temporal limitation identified by the primary judge, in operating to reduce the scope for referrals, would tend to narrow the scope of the protection afforded by the National Law. It would tend to narrow the focus to persons currently registered as health practitioners and thus tend to reduce the capacity for the National Board and Tribunal to protect the public. Perhaps more significantly, it would do so in a manner which could produce some surprising consequences. For example, a practitioner could avoid a referral by allowing their registration to lapse (s 108) or by surrendering their registration (s 137). Allowing practitioners to control the scope of the National Board’s power to refer matters, and the Tribunal’s jurisdiction to determine matters and impose the sanctions contemplated by s 196, would tend to undermine the effectiveness of the protection afforded to the public.
In summary, we are not persuaded that there is an adequate textual foundation for the first of the temporal limitations upon the referral duty and jurisdiction identified by the primary judge. To the contrary, we consider that the textual, contextual and purposive indicators addressed above tell against any construction of ss 193 and 196 that would confine the duty to refer, or jurisdiction to determine, to matters relating to a person having the status of a registered health practitioner at the time of referral.
The second temporal limitation – behaviour while registered
The second temporal limitation identified by the primary judge (namely, that the behaviour or conduct relied upon as grounding a complaint of professional misconduct occurred while the person was a registered health practitioner) raises different considerations.
Once again, there is no clear textual basis for the limitation in ss 193 or 196. To the extent that support may be found in the primary judge’s reliance upon the references to a ‘registered health practitioner’ in ss 193 and 196, the Boards sought to counter this by relying upon the breadth of the two limbs of the legislative description of the subject matter which may be the subject of a referral and determination.
Addressing those limbs in reverse order, a referral based on a belief that a registration was improperly obtained by reason of false or misleading information (s 193(1)(a)(ii)) plainly encompasses a referral based upon behaviour or conduct that occurred prior to the practitioner achieving the status of registration. It must include not only misconduct during the registration process itself, but also earlier misconduct not disclosed in that process. It is necessarily concerned with conduct that occurred prior to registration, because one can only misstate or fail to disclose, at the point of an application for registration, something that happened prior to registration.
Whilst contextually relevant, this does not, however, directly address whether the first limb encompasses behaviour that occurred prior to registration. The Boards contend that a referral based on a belief that a practitioner has behaved in a way that constitutes professional misconduct (s 193(1)(a)(i)) naturally encompasses a referral based upon behaviour or conduct that occurred prior to the practitioner achieving registration. This is said to be apparent from the legislative description of the behaviour that must be referred. For example, paragraph (c) of the s 5 definition of professional misconduct applies to ‘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’. Consideration of whether someone is fit and proper under (c) expressly extends the subject matter of the referral beyond that person’s conduct as a practitioner. The Boards contend that it must also extend to consideration of conduct and circumstances occurring prior to that person’s registration; that it would be artificial to determine the issue of whether someone is a fit and proper person to hold registration without having regard to matters such as past criminal behaviour.
The Boards further contend that it is noteworthy that paragraphs (a) and (b) of the s 5 definition of professional misconduct address conduct described as ‘unprofessional conduct’. This is itself defined in s 5 by reference to various types of conduct. These include not only conduct in the course of a practitioner’s practice, but also, for example, a conviction for an offence which may affect the practitioner’s ‘suitability’ to continue to practise. Whilst the reference to continuing to practise is consistent with a person holding registration, there does not seem to be any basis for limiting consideration of a person’s suitability to convictions that occurred during that period of registration.
Whilst these observations have some force, they overlook a significant aspect of the definitions of both ‘professional misconduct’ and ‘unprofessional conduct’. The definitions of both of these terms are expressly confined in their terms to conduct ‘of a registered health practitioner’, and in this way provide some support for a construction of ss 193 and 196 which is confined to consideration of behaviour occurring during a period of registration.
Further contextual support for this limitation upon the referral duty and jurisdiction may be found in ss 138 and 139. We have earlier addressed the work to be done by these provisions. However, it is significant that in addressing the situations of a person previously registered under the National Law or some corresponding law, the sections are expressly confined in their operation to that person’s ‘behaviour while registered’.
To the extent that the existence of the second temporal limitation narrows the reach of the National Law, we do not attach much weight to the submission that this would undermine, or lessen, the capacity for the regulatory regime it enacts to achieve its protective purposes. It is not clear, and cannot be assumed, that this protective purpose was intended to extend to risks posed by pre-registration conduct. But in any event, as the Practitioners point out, to the extent that the second temporal limitation would exclude consideration of such conduct through referrals and determinations under ss 193 and 196, it could nevertheless be satisfactorily addressed through the provisions governing applications for registration and renewal.
The Boards seek to meet this last point with a concern that addressing past conduct only through the prism of applications to register or renew would risk distorting the scheme enacted through the National Law; that it would result in allegations of misconduct being addressed through an application process that does not appear to contemplate the hearing or determination of contested facts.
We do not share this concern. In our view, the registration and renewal process under the National Law provides an appropriate mechanism for addressing concerns relating to conduct that occurred while a practitioner was not registered. For example, under s 55(1) (in the case of an application for general registration), a National Board may decide that a person is not a suitable person to be registered as a practitioner for various reasons. These reasons may include that the person is not an appropriate person to practise the profession or that it is not in the public interest for the person to practise the profession (s 55(1)(b)), or that the person is not a fit and proper person for registration (s 55(1)(h)). Under s 82, the National Board is then given power to refuse registration, but only after giving the applicant notice and an opportunity to make submissions through the mechanism provided in s 81.
Properly understood, it appears that the registration and renewal processes provided for in the National Law are appropriate mechanisms for addressing conduct or behaviour which occurred when the person was not registered. And to the extent that conduct or behaviour is not disclosed during this process, it may be addressed through a referral under s 193(1)(a)(ii) on the basis that registration was improperly obtained through the provision of false or misleading information. There is no need to construe the reference to professional misconduct in s 193(1)(a)(i) as extending to conduct or behaviour which occurred when the person was not registered.
For the reasons given, we consider that the primary judge was correct to construe s 193(1)(a)(i) as confined to a power to refer a matter relating to a person’s conduct or behaviour while registered.
Conclusion
In the Jackson proceedings, the first question was:
(1)Does the Tribunal have jurisdiction to consider and determine the respondent’s conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?
The primary judge answered this question as it relates to Allegation 1:
No. Only conduct occurring after the Respondent was registered on 22 May 2019 may be the subject of a referral.
For the reasons given, we would allow the appeal, set aside the answer to the first question as it relates to Allegation 1, and substitute the answer:
No. Whilst a referral may be made in respect of a practitioner no longer registered at the time of referral, only conduct occurring after the Respondent was registered on 22 May 2019 may be the subject of that referral.
In the Smith proceedings, the question referred was:
Does the South Australian Civil and Administrative Tribunal have jurisdiction to hear and determine Allegation Five in the initiating application filed by the Physiotherapy Board of Australia on 30 March 2022 [where] the conduct alleged in Allegation Five occurred prior to the Respondent’s registration under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) and his registration had lapsed at the time of the hearing and determination of the referral?
We would answer this question:
No. While jurisdiction is not affected by reason that the practitioner’s registration had lapsed at the time of the hearing and determination of the referral, only conduct occurring after the Respondent was registered may be the subject of a referral under s 193(1)(a)(i) of the National Law.
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