1. The Agreed Statement of Facts is as follows:
   1. BACKGROUND

1.1 The parties agree the facts as recorded in Parts 1 and 2 of this Agreed Statement.

1.2 The respondent, Dr Juviraj Arulanandarajah, is a registered medical practitioner (registration number MED 0001682486). He was first registered on 1 August 2006, and practises as a general practitioner.

1.3 In respect of the relevant conduct (set out below) the Medical Board of Australia (Board), on 30 October 2017 determined to refer the matter of Dr Arulanandarajah's conduct to the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to section 193(1)(a) of the National Law.

2.1 On 13 September 2016, Dr Arulanandarajah was charged with three counts of sexual assault under section 40(1) of the Crimes Act 1958 (Vic).

2.2 On 16 September 2016, Dr Arulanandarajah advised the Australian Health Practitioner Regulation Agency (AHPRA) of the charges.

2.3 The circumstances giving rise to the charges of sexual assault are as set out in the Informant's Statement of Alleged Facts under the heading "Circumstances", "Incident in Wantirna South (Charges 1 & 2)" and "Incident Number 2 (charge 3)". In summary, these are that:

(a) Dr Arulanandarajah and the complainant [the victim] began working together in 2013 at the ... Clinic in Victoria (Clinic). They had become close family friends and would often participate in family dinners, picnics, and 'get togethers'. Dr Arulanandarajah and his wife were very supportive of [the victim] after she was diagnosed with cancer in 2013.

(b) During the evening of Thursday 9 July 2015, Dr Arulanandarajah, his wife, [the victim] her two sons and another couple went out for dinner in Wantirna South. After dinner, [the victim's] two sons returned to Dr Arulanandarajah's home to sleep, following which [the victim], Dr Arulanandarajah and his wife went to an Irish pub and consumed alcohol.

(c) In the early hours of the following day, [the victim] walked back to Dr Arulanandarajah's house on her own and went to bed.

(d) At some stage after 4:00am on 10 July 2015 [the victim] awoke lying on her stomach, with Dr Arulanandarajah on her back kissing and biting her neck and shoulder area. Dr Arulanandarajah's left hand was under [the victim]'s stomach, down the front of her pants and touching her vagina area around the clitoris. His hand did not penetrate [the victim]'s vagina.

(e) [The victim] moved to get out from underneath Dr Arulanandarajah. As she did this, she got caught up in the blanket and fell out of bed, causing a bruise at the top of her right thigh. [The victim] got up off the floor and asked Dr Arulanandarajah "What are you doing and where is your wife?"

(f) [The victim] then went into the downstairs bathroom of Dr Arulanandarajah's home. Dr Arulanandarajah opened the bathroom door wearing only boxer shorts, turned the bathroom light off and attempted to grab [the victim]'s arm. [The victim] told Dr Arulanandarajah to leave her alone and pushed past him and went back upstairs to the bedroom and shut the door.

(g) After about 20 minutes, [the victim] had fallen asleep sitting up in bed. She was then awoken by Dr Arulanandarajah in her room. Dr Arulanandarajah had pulled her down onto the bed and was trying to kiss her. Dr Arulanandarajah was repeating "Come on [victim's name] come on [victim's name]".

2.4 On 8 December 2016, at a hearing at the Magistrates' Court at Ringwood, Dr Arulanandarajah accepted the facts as recorded in paragraph 2.3 above and pleaded guilty to one count of sexual assault, being a "rolled up" conviction in relation to all conduct set out in the Informant's Statement of Alleged Facts.

2.5 On 9 February 2017, Dr Arulanandarajah was convicted of the charge of sexual assault and sentenced to a community corrections order (CCO) for a period of 18 months commencing on 9 February 2017.

2.6 In February 2019, [the victim] provided a statement to the Board about the effects of the events giving rise to Dr Arulanandarajah's conviction on her health, employment and relationships. In her statement [the victim] said that, following those events, she:

(a) Did not want to attend work at the Clinic as Dr Arulanandarajah worked at the same practice. She was required to tell her manager some of the detail of the events in order to explain her absence from work, which she found very difficult and caused anxiety;

(b) Ceased recreational activity, in particular teaching dance classes;

(d) Was diagnosed with Post Traumatic Stress Disorder and major depression, requiring treatment with antidepressants;

3.1 On 30 October 2017, the Board decided to refer the matter to the Tribunal under section 193(1)(a) of the National Law on the basis that it had formed a reasonable belief that Dr Arulanandarajah had behaved in a way that constituted professional misconduct.

3.2 The allegation contained in the Notice of Allegations is as follows:-

(a) Professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (c) of section 5 of the National Law;

(b) Unprofessional conduct within the meaning of paragraph (c) of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 9 February 2017, Dr Arulanandarajah was convicted in the Magistrates' Court of Victoria of one charge of sexual assault.

1. On or about 9 February 2017, Dr Arulanandarajah pleaded guilty and was convicted of one charge of sexual assault in case number G12560828.
2. The guilty plea and conviction was in respect of conduct that was initially the subject of three charges laid against Dr Arulanandarajah under section 40(1) of the Crimes Act 1958 (Vic) namely that Dr Arulanandarajah -

1. At Wantirna South on 10 July 2015, did intentionally touch [the victim] in a sexual manner by kissing and biting her neck and shoulder area without her consent and did not reasonably believe that she consented to the touching; 2. At Wantirna South on 10 July 2015, did intentionally touch [the victim] in a sexual manner by touching her vagina around the clitoris area without her consent and did not reasonably believe that she consented to the touching; and

1. At Wantirna South on 10 July 2015, did intentionally touch [the victim] in a sexual manner by trying to kiss her without her consent and did not reasonably believe that she consented to the touching.

4.1 Dr Arulanandarajah does not contest that he engaged in the conduct particularised in the informant's Statement of Alleged Facts, set out in paragraph 2.3 above, or that he was convicted in the terms of the Notice of Allegations, set out in paragraph 3.2 above.

4.2 On 22 September 2016, following Dr Arulanandarajah's self-notification described in paragraph 2.2 above, the Medical Board of Australia determined a proper basis to find that Dr Arulanandarajah be asked to show cause as to why he was he was not a serious risk to persons and that therefore immediate action should [be] taken pursuant to s.156 of the National Law by an Immediate Action Committee (IAC) of the Board and Dr Arulanandarajah was invited to provide written and/or verbal submissions in relation to its contention of that date to take immediate action in relation to his registration. On 29 September 2016, the IAC decided not to take immediate action on the basis that it could not form a reasonable belief that, because of the then alleged conduct, Dr Arulanandarajah posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety.

4.3 On 21 August 2017, following confirmation of matters set out in paragraph 2.5 above, the Medical Board of Australia determined a proper basis to find that Dr Arulanandarajah be asked to show cause as to why he was not a serious risk to persons and that therefore immediate action should take taken pursuant to s.156 of the National Law by an IAC of the Board and Dr Arulanandarajah was invited to provide written and/or verbal submissions in relation to its [intention] of that date to take immediate action in relation to his registration. On 28 August 2017, the IAC decided not to take immediate action, on the basis that it could not form a reasonable belief that, because of his conduct, Dr Arulanandarajah posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety.

1. Much of the argument in this case concerned the question of the correct interpretation of parts of the definitions of 'unprofessional conduct' and 'professional misconduct' in the National Law.[5]
2. Those definitions are, relevantly:

unprofessional conduct, of a registered practitioner, means 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, and includes -

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession;

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) 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.

1. The Board's primary contention is that Dr Arulanandarajah's conduct falls within (c) of the definition of professional misconduct. It says it is virtually self-evident that the sexual assaults are inconsistent with the practitioner being a fit and proper person to hold registration. Under (c), the definition explicitly indicates that it is not necessary to consider whether the assault occurred in connection with the practice of the health practitioner's profession or not.
2. Additionally, the Board contends that Dr Arulanandarajah's conduct falls within (a) of the definition of professional misconduct. This is on the basis that it constitutes unprofessional conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
3. It says that the conduct falls within (c) of the definition of unprofessional conduct, in that the nature of the conviction for sexual assault is such that it may affect his suitability to continue to practise as a doctor.

1. For Dr Arulanandarajah, it is contended -
   1. For the conduct to fall within (c) of the definition of 'professional misconduct' it must be found that he is not a fit and proper person to be registered. Here, that proposition is not sustainable when his whole history and character are considered. This is a one-off incident, in an otherwise exemplary professional career.
   2. For the conduct to fall within (a) of the definition of 'professional misconduct' there must be a connection to practice, which is not the case here. The conduct was in a private capacity. Additionally, under (c) of the definition of unprofessional conduct, the nature of the conduct the subject of the conviction is not such as to affect his suitability to practise. Similarly to the contention under i above, it is said this proposition is not sustainable when his whole history and character are considered.
2. For Dr Arulanandarajah, particular reference was made to two High Court cases involving legal practitioners. [6] The statement of Fullagar J that generally speaking, professional misconduct must have a much more direct bearing on the question of a practitioner's fitness to practise than personal misconduct, was referred to.[7]
3. It was said that the Board bears the onus of proving that professional misconduct has occurred, that the fact of the conviction does not mean that the statutory tests are automatically satisfied, and that it is necessary to consider the circumstances of each individual case.[8]
4. These propositions can all be accepted. The Board did not contend to the contrary.[9]
5. The Board did, however, note that the two High Court decisions involving legal practitioners were from an earlier era, and involved a different, and less evolved statutory regime for disciplining professionals. Additionally, in our view, there will generally be a distinction between the circumstances concerning doctors and lawyers. For doctors, such as general practitioners (GPs), the professional relationship is necessarily characterised by a much greater level of acceptance of physical contact, and therefore a higher level of trust is placed in the practitioner in that regard.
6. The Tribunal accepts that the general statements of principle referred to in the two High Court decisions, and in numerous subsequent decisions, do apply. But the Tribunal's task here must commence with the application of the words of the National Law.

'Fit and Proper' (under (c) of the definition of 'professional misconduct')

1. The argument made for Dr Arulanandarajah commenced with the proposition that the Tribunal is required to assess whether he is 'fit and proper'. If that conclusion is reached then cancellation of his registration must be 'on the cards, for how can one have a person who is not fit and proper practising?'[10]
2. The Board's response was that to make a finding of professional misconduct under (c) of the definition of 'professional misconduct', all that is required is a finding that the conduct of Dr Arulanandarajah on 10 July 2015 was, in the words of the provision, 'inconsistent with the practitioner being a fit and proper person to hold registration in the profession'. That is, it says the definition at (c) concerns the nature of the conduct, rather than the practitioner. It says the assessment of whether he is now a fit and proper person comes at a later stage of the analysis under the National Law. Accordingly, the Board says, a consideration of whether professional misconduct is proved under (c), does not entail the full analysis of the doctor's character and history which the opposing argument says is required.
3. The Tribunal does not accept the argument put on behalf of Dr Arulanandarajah, that in determining whether he has engaged in professional misconduct under (c) of the definition, it is necessary to determine whether he is presently a fit and proper person to hold registration. It is important to apply the words of the definition. The assessment of the whole history and character of the doctor is not required to be made at this stage of the analysis. All that is required at this point is a determination of whether or not the conduct is inconsistent with the practitioner being a fit and proper person to hold registration.
4. The language used in the definition falls short of requiring the conclusion to be drawn that the practitioner is not currently a fit and proper person to practise for (c) of the definition of professional misconduct to be satisfied. The provision relevantly refers to

conduct of the practitioner...that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. The legislature could have, but did not, require that the conduct demonstrate, or prove, that the practitioner is not fit and proper at the time of the hearing, in order to satisfy (c) of the definition of professional misconduct.
2. This has two relevant consequences. First, the words used allow for the possibility that while the conduct engaged in by the practitioner was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that point.
3. Second, and likely more relevantly, it allows for the possibility that while the conduct in and of itself may have indicated that the practitioner was unfit at the time when he acted in the way he did, that does not prevent him subsequently becoming a fit and proper person to hold registration during the period up until the Tribunal hearing. [11]
4. In professional disciplinary cases, especially where there has been a criminal process, the hearing will often be years after the conduct itself. In this case, it is five and a half years later. Thus, in a case such as this, there is an extended period during which this change could occur.
5. It is important to bear in mind that the purpose of the inquiry at this point is to determine whether the allegation is proved or not. That is, whether the Tribunal is satisfied to the requisite standard, that 'the practitioner has behaved in a way that constitutes professional misconduct' (under s 196(1)(b)(iii) of the National Law). The determination of whether the practitioner should be registered or not comes after that. Cancellation of registration is of course able to be imposed under s 196(2) where professional misconduct has been proved, but clearly there are a number of other determinations available as well, namely a caution or reprimand, the imposition of conditions such as education, a fine, or suspension of registration. Indeed, there is no requirement that any of these determinations be made.
6. Our conclusion on this point is consistent with the reasoning of Emerton J in the following passage from Legal Services Commissioner v Turner.[12] That case was an appeal from a decision of this Tribunal in a disciplinary proceeding against a lawyer. An issue on appeal related to the definition in s 4.4.3(1)(b) of 'professional misconduct' in the Legal Profession Act 2004. This contained similar elements to the definition at (c) of the National Law:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.[13]

1. The passage from the decision of Emerton J is as follows:

Further issue: the relevance of the respondent's current fitness

1. In his written submissions, the respondent submitted that his present fitness to practise was a factor that militated against his suspension.
2. The Tribunal considered what it described as 'fitness to practice', observing that an inquiry under s 4.4.3(1)(b) of the Act is necessarily retrospective: it is whether conduct which has happened in the past justifies a finding that the legal practitioner at the time of the conduct demonstrated unfitness to practise. However, Tribunal also observed that in determining whether to grant or renew a practicing certificate, the requirement that the Legal Services Board be satisfied that an applicant is a fit and proper person is expressed in the present tense. The Tribunal found that the respondent was now a fit and proper person to engage in legal practice despite not being fit and proper whilst not meeting his tax obligations.
3. The Commissioner submits that to find that the respondent is currently a fit and proper person is no answer to the proposition that his practising certificate should be suspended, because s 4.4.3(1)(b) of the Act looks to the character of the conduct that constitutes professional misconduct at the time it occurred.
4. I accept this submission. It follows from s 4.4.16 of the Act, which requires the Tribunal 'after it has completed a hearing' to be satisfied that the respondent 'is guilty of unsatisfactory professional conduct or professional misconduct' in order to make an order under s 4.4.17. The conduct amounting to unsatisfactory professional conduct or professional misconduct is conduct that occurred prior to the hearing. Pursuant to s 4.4.3(1)(b) of the Act, the Tribunal can be satisfied that a person is guilty of 'professional misconduct' by reason of conduct that would justify a finding that the practitioner is not a fit and proper person to engage in legal practice. The formulation in s 4.4.3(1)(b) directs attention to the conduct of the practitioner that would justify such a finding, not to the character of the practitioner at the time of disposition.
5. If it were the case that a suspension could only be ordered if the practitioner was not a fit and proper person at the time of disposition by the Tribunal, s 4.4.17[14] of the Act would have little work to do. If the Tribunal's inquiry was not directed to past conduct, then no practitioner who was at the time of disposition fit and proper could have his or her practising certificate suspended or cancelled. That cannot have been the intention of the legislature.
6. Indeed, the Tribunal would be impeded in the exercise of its jurisdiction to protect the reputation of the legal profession by sanctioning errant legal practitioners if the present conduct or present fitness of the practitioner were determinative of whether a suspension could be imposed. The fact that the public is not in need of protection from the practitioner at the time of disposition does not mean that the public is not in need of the protection that is afforded by sanctioning practitioners for past conduct.
7. This is not to say, however, that steps taken by the practitioner to rehabilitate him or herself and the success (or otherwise) of those actions may not be relevant to the exercise of the Tribunal's discretion.
8. We now turn to the decision of Medical Board of Australia v Cukier,[15] which was referred to by both parties. It deals with the fact that the definition of professional misconduct at (c) uses the present tense: 'is inconsistent'. In Cukier, the Tribunal concluded for the purposes of that case, that a present-time assessment was to be carried out in order to determine whether the conduct falls within paragraph (c). Accordingly, it allowed submissions in relation to matters such as insight and remorse to be put by the doctor on the question of characterisation of the conduct. (It ultimately found the conduct fell within (c) in any event.)
9. However, this conclusion was certainly not emphatically expressed. The Tribunal said that 'the matter is not free from doubt', and 'While other decision-makers may of course take a different approach, in this case we allowed submissions in relation to matters such as insight and remorse.'
10. Again, it needs to be borne in mind that the task being undertaken is characterising the conduct. The conduct of course occurred in 2015, not today, and in our view it is not correct to overlay subsequent events as part of the process of determining how it is to be characterised. The present tense is used throughout the definitions of unprofessional conduct and professional misconduct. That indicates, in our view, that the circumstances to be taken into account are those applicable at the time the conduct itself occurred.
11. When it comes to the hearing, if the allegations are proved, and found to constitute unprofessional conduct or professional misconduct, the next task is to consider what determinations should be imposed under s 196(2).
12. Conduct which was sufficiently egregious, or lacking in moral rectitude, even if some years ago, may indicate a defect of character such that by the time of the hearing, the practitioner is still unfit to be registered, and may be for some time to come. The conduct in another case might not so indicate. The amount of time which elapses before the hearing, the seriousness of the conduct and the extent of rehabilitation will be relevant.
13. In addition, the Tribunal must consider whether the practitioner should be prevented from practising for a specified period, for the purposes of the protection of the public, and/or specific and general deterrence.
14. If registration is cancelled, the practitioner will need to satisfy the Board that they are fit and proper to be registered at the time of any future application for re-registration.
15. Reference was made in Cukier to the Queensland decision in Medical Board of Australia v Wong[16]. However that decision concerned different circumstances to the present. It related to a doctor who had a serious mental health impairment, such that he could not be tried for the numerous sexual assaults he committed.

Unprofessional conduct (under (a) of the definition of professional misconduct)

1. The primary focus of the contentions on behalf of the Board and Dr Arulanandarajah was on the implications of the concept of 'fit and proper' in (c) of the definition of professional misconduct, just discussed.
2. But the Board also alleged that the conduct constituted unprofessional conduct, amounting to professional misconduct under (a) of the definition of professional misconduct. As noted, that is where the unprofessional conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
3. The Board alleged the conduct fell within (c) of the definition of unprofessional conduct. That is, that the conviction for sexual assault amounted an offence under another Act, the nature of which may affect his suitability to continue to practise the profession.
4. The parties' submissions tended to assume that a similar analysis applies when considering 'suitability' to that which applies when determining 'fit and proper'. [17]
5. The Tribunal accepts that a similar approach to that described above concerning 'fit and proper' will be taken in applying (c) of the definition of unprofessional conduct. The Tribunal is required to determine whether the 'nature' of the offence for which a conviction was imposed 'may', as at the time the conduct was engaged in, affect the practitioner's suitability to continue to practise.

1. For the Board, it was emphasised that:
   • the assaults involved a serious criminal offence,
   • they involved repeated assault on a vulnerable person, who should have been safe in the home of her friend, Dr Arulanandarajah,
   • the conduct showed a disregard for consent, and personal autonomy, both important values for a medical professional,
   • the conduct was inconsistent with the expectations of the Code of Conduct (published by the Board) which provides that medical practitioners 'must be ethical and trustworthy',
   • the conduct is inconsistent with the expectations of the AMA Code of Ethics, which provides, in principle 2.1 b, 'Recognise that your personal conduct may affect your reputation and that of your profession,'
   • there is a growing realisation of the significance of 'domestic' events, including domestic violence, and hence of their applicability to disciplinary oversight. General practitioners in particular, are often first-line responders when their patients are subject to harm from such 'domestic' events, and
   • the conduct had some connection with Dr Arulanandarajah's work, in that it was perpetrated on a nurse working for the same organisation as him.
2. For Dr Arulanandarajah, it was emphasised that:
   • the acts had nothing to do with, nor arose from any patient connection,
   • they did not occur in the public sphere or in a setting in connection with his medical practice,
   • they were an isolated act amongst an otherwise unblemished conduct record,
   • the sentencing magistrate treated them as acts still permitting the practice of medicine, and
   • the Immediate Action Committee (IAC) had determined not to suspend him on two occasions, most recently, even after it became aware of the conviction.
3. The conduct occurred following a birthday celebration, where the party attended a number of different venues in succession, and Dr Arulanandarajah consumed a very substantial amount of alcohol. The only connection with his professional life was that the assault was perpetrated on a friend, a nurse, who had been a colleague at a clinic where Dr Arulanandarajah had previously worked, and she still worked. For two years prior to the incident, he had worked at a different clinic, operated by the same organisation.
4. We refer first to the IAC decisions. On both occasions, the Board considered whether to take immediate action under s 156(1)(a) of the National Law, and decided not to. No reasons were given for these decisions, which followed written and oral submissions for Dr Arulanandarajah. The second occasion was after his conviction for the assaults.
5. The immediate action considered serves the purpose of providing interim protection to the public under s 156(1)(a). It applies where because of his conduct, the practitioner poses a serious risk to persons, and it is necessary to take immediate action to protect public health and safety. It is a separate statutory process, with its own separate purposes and its own separate procedure. Immediate action decisions are necessarily made on the basis of limited information.
6. On the other hand, disciplinary proceedings under s 193, such as the present case, require referral to the Tribunal and the conduct of a final hearing at which all relevant matters are ventilated. They give rise to a final disciplinary decision, rather than an interim decision to protect the public pending the final decision.
7. Of course, some of the matters which were relevantly considered by the IAC, are also relevant to the disciplinary proceeding conducted under s 193. In particular, the conclusion that Dr Arulanandarajah did not pose a risk to persons such that it was necessary to take immediate action to protect public health and safety. Also considered were Dr Arulanandarajah's otherwise clean professional record, and the remorse, insight and preventative and rehabilitative steps taken. Indeed, the Tribunal has the benefit of evidence of these matters covering an additional period of more than three years since the second IAC decision, in August 2017.
8. We now turn to the comments made by the sentencing magistrate, referred to on behalf of Dr Arulanandarajah. His counsel drew our attention to a comment to the effect that he was better off serving the community as a doctor, than removing graffiti from a railway station.
9. The remarks of the magistrate are relevant to the extent that they shed light on the nature of the conduct, but not insofar as they might express any opinion on what professional disciplinary action might be appropriate.
10. We note, however, that the magistrate was careful to acknowledge that his function in imposing a criminal sentence was separate from the role of the Medical Board [and, of course, in a serious matter such as this, the Tribunal] in conducting a disciplinary process, relating to Dr Arulanandarajah's registration.
11. Counsel for Dr Arulanandarajah referred to the 2005 case of Grizini v Medical Practitioners Board of Victoria,[18] a decision of his honour Judge Dove. This was, similarly to the present case, an isolated act of criminality. That case involved a doctor looking at pornography in a newsagency, with a female shop attendant seeing him expose his erect penis in the shop for a few seconds. It was not said the exposure was directed to her. He pleaded guilty to a charge of Wilful and Obscene Exposure in Public. He was granted a good behaviour bond and no conviction was recorded. The Board found him to have engaged in unprofessional conduct of a serious nature under the Medical Practice Act 1994. This decision was overturned by the Tribunal. The decision referred to three authorities, two concerning lawyers[19] and one concerning a doctor, to the effect that not all personal misconduct will amount to professional misconduct. It depends firstly on how closely connected the conduct is with the carrying on of professional practice. Secondly, where it is removed from professional practice, it may nevertheless amount to professional misconduct where it is of a sufficiently immoral or outrageous or disgraceful character.[20]
12. Counsel contended that the present case raises identical issues of fact and law to Grizini, and that the same outcome should follow.[21] That submission however runs contrary to his submission that 'the question of whether there has been engagement in misconduct or unprofessional conduct depends upon the facts of each case', invoking Kellam J's decision in Parr. v Nurses' Board of Victoria (1998) 16 VAR 118 at 123.[22]
13. In any event, the circumstances in Grizini are clearly not relevantly similar to those in this case. In particular, the conduct in Grizini was said to be at the lowest end of the scale for a sexual offence. It did not involve any physical assault. The offending was for a few seconds only, and not against any patient, colleague, nurse or the like.
14. We also note the recent case of Dental Board of Australia v BYX.[23] In that case, a dentist indecently assaulted and groomed his sister-in-law when she was 14 - 16 years old. He was convicted of nine criminal charges relating to this. He was sentenced to imprisonment, reduced to a 300 hour Community Corrections Order on appeal. Both parties, and the Tribunal, agreed that this constituted professional misconduct under (c) of the definition.
15. We turn now to the characterisation of the conduct in this case. In our view, it was inconsistent with Dr Arulanandarajah being a fit and proper person to hold registration at the time it occurred. While this might not have been regarded as being the case in the past, the fact is that the conduct comprised sexual assaults of a woman who had assumed she would be safe in his house. There were two separate incidents, about 20 minutes apart, around 4.00am, in the bedroom where she was sleeping. The seriousness of the conduct was reflected in the conviction imposed. To violate the victim's personal autonomy in the way he did was a breach of trust, unacceptably disrespectful to her, and inconsistent with the qualities expected in a doctor. It had severe negative repercussions for her, of a type which would have been quite foreseeable to Dr Arulanandarajah, especially given his role as a GP. It cannot be divorced from the professional context. Also, there was some connection with his professional work, in that the victim was a nurse, and they both worked for the same employer.
16. Accordingly, we are comfortably satisfied, and find, that Dr Arulanandarajah's conduct constituted professional misconduct within the meaning of (c) of the definition of that term. It was inconsistent with being a fit and proper person to be registered.
17. As noted, the arguments by the parties focussed on that question of whether (c) of the definition of professional misconduct was made out. The argument for Dr Arulanandarajah dealt with the question of suitability under (c) of the definition of unprofessional conduct jointly with the argument as to fit and proper under (c) of the definition of professional misconduct.[24]
18. We agree that a similar analysis applies to both questions. In the light of our analysis above, we find that Dr Arulanandarajah's conduct constituted a conviction for an offence under an Act other than the National Law which may affect his suitability to continue to practise his profession.
19. Conduct that did not occur in connection with the practice of medicine is not explicitly included in (a) of the definition of professional misconduct, in contrast to the definition at (c). However, we accept the Board's contention that the conduct in this case is capable of constituting unprofessional conduct. We note that (c) of the definition of unprofessional conduct includes 'a conviction for an offence under another Act'.
20. The relevance of the personal conduct in this case to professional standing is underlined by its being inconsistent with the notion of trustworthiness in the Board's Code of Conduct, and with the expectations in the AMA Code of Ethics, which state that personal conduct of a doctor may affect their reputation and that of the profession.
21. The Board correctly submitted that situations involving conduct outside the practise of the practitioner's profession are amenable to disciplinary action. It referred by footnote[25] to cases relating to possession of child pornography,.aggravated burglary,.involvement in money laundering,. and, in the context of an acrimonious family law dispute, false affidavits and breach of restraining orders. In two of these matters a finding was made of Professional misconduct under (a) of the definition as well as (c) (Black and Camm).
22. There have also been a number of cases where disciplinary action has been taken in the light of findings against practitioners for domestic violence. In Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157, the Tribunal found that the assault by a nurse of his 16 year old daughter amounted to professional misconduct under (a) of the definition of that term. In that case, there was a finding of guilt in the Magistrates' Court, but not a conviction. Therefore, unlike the present case, the assault was not covered by (c) of the definition of unprofessional conduct. However, the Tribunal noted that the definitions of unprofessional conduct and professional misconduct are not exhaustive. It found that the assault constituted professional misconduct under (a), on the basis of the common law conception of professional misconduct as including conduct that would be regarded as disgraceful by members of the relevant profession of good reputation. In our view, the same reasoning would apply to the assaults in this case, had the referral to the Tribunal included this as an alleged basis, which it did not.
23. Finally, we are satisfied that, in light of the nature of the unprofessional conduct, as described above, it can be said to be substantially below the standard reasonably expected of a doctor of an equivalent level of training or experience.
24. Accordingly, we also find that Dr Arulanandarajah's conduct constituted professional misconduct within the meaning of (a) of the definition of that term.

1. The principles applicable to determinations were set out in Medical Board of Australia v Jansz [2011] VCAT 1026 at [358] - [373] and Medical Board of Australia v Naik [2009] VCAT 755 at [60]- [61]. In summary:

(a) the purpose of the imposition of determinations is to protect the public;

(b) determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;

(d) the objectives of determinations can be achieved by specific deterrence, ie the deterrence of the person concerned from further inappropriate conduct..., by general deterrence, ie the deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner;

(e) personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;

(f) the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;

(g) the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;

(h) insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and

(i) any form of official censure is of consequence. It has been held that 'a reprimand should not be considered 'a slap over the wrist'".

1. Dr Arulanandarajah was born in Sri Lanka. He moved with his family to the UK as a child. He gained his medical qualification there. He migrated to Australia in 2006. In 2012, he began working as a general practitioner (GP) in Melbourne.
2. Following the events the subject of this case, he moved with his wife and infant son to Kalgoorlie, joining a general practice there in September 2017.
3. In July 2019, he moved to a different general practice in Kalgoorlie, where he still works. The practice bulk bills. Doctors there are in demand, and it can take weeks to get an appointment. His practice includes dealing with mental health, issues concerning poverty, domestic violence, and drug and alcohol abuse.
4. He has a mentoring role. He said he is the only doctor in Kalgoorlie who takes on supervision of medical students. He is involved in community and professional education. This includes contributing to mental health support networks for other doctors. He has been offered a one-day a week role as a Medical Coordinator of the Regional Training Hub of the Rural Clinical School of Western Australia Kalgoorlie. This role is to provide GP training and support to facilitate more GPs committing to rural careers. However, he has deferred accepting this position, pending the outcome of this case.
5. Dr Arulanandarajah expressed sorrow for the pain and trauma which the incident had caused for the victim, for her family, for his wife, and the harm caused to the profession. He said he had re-evaluated his work/life balance. He now works 9 to 5, instead of long, late-night shifts.
6. He has taken a number of rehabilitative steps. He has been seeing a psychotherapist, Mr Jeremy Candappa, since December 2015. He said he still speaks with Mr Candappa, on average, once a week.
7. He agreed that he drank heavily in the period leading up to the assaults, in an attempt to relieve the stress he was experiencing due to various causes. He abstained from alcohol for 12 months after the incident, and now drinks sparingly (he said perhaps one glass per fortnight).
8. Dr Arulanandarajah produced a fulsome letter of apology to his victim. This was provided to her the day before his sentencing hearing, but he said, and we accept from the evidence as a whole, that this reflected his feelings from immediately after the incident.
9. Dr Arulanandarajah said there was no chance of a repeat of his conduct. He referred to the steps he had taken, described above, to make sure it never happens again. Additionally, it was clear he has been profoundly affected by the incident, and its far-reaching consequences for all concerned.
10. We have no reason to doubt the truthfulness and sincerity of the evidence Dr Arulanandarajah gave.
11. We were provided with 28 positive personal and professional references for Dr Arulanandarajah. There were four batches of references, provided at the following times:
    • In September 2016, after the criminal charges were laid, for consideration as part of the first immediate action process (5 references)
    • In February 2017, for the purposes of the Magistrates' Court criminal sentencing hearing (5 references)
    • In August 2017, for the purposes of the second immediate action process (8 references)
    • In October 2020, for the purposes of this hearing (10 references).
12. In some cases, the same referee provided references on multiple occasions. The references came from 15 different people in all.
13. The referees are present and past employers and supervisors, general practitioner colleagues (two of whom are, or have been, Dr Arulanandarajah's regular treating GPs), and other professional colleagues such as nurses and a physiotherapist. They also included family members and friends: Dr Arulanandarajah's wife, his sister, and a close friend.
14. With few exceptions, the references indicate a knowledge of the allegations or conviction, as applicable.
15. Dr Arulanandarajah's employers state he is competent, reliable and dedicated to his patients. They express confidence in his clinical work, his integrity and respect for ethical boundaries.
16. His colleagues are confident to rely on him to look after their patients in their absence. They say he is professionally competent, patient and thorough. They refer patients to him. Examples of life changing outcomes he has achieved for patients were given. His notetaking and record-keeping were referred to with approval.
17. He is described as having an empathetic quiet and calm manner, being in demand from patients, dependable, trustworthy, honest and compassionate.
18. There are many social and health problems in and around Kalgoorlie, and Dr Arulanandarajah is taking steps to achieve changes in the area of mental health, suicide prevention and alcohol and drug abuse.
19. Many of the referees refer to the far-reaching changes which were precipitated by the assaults on 10 July 2015. Alcohol had become a tool which Dr Arulanandarajah used to relieve stress. He made, and kept, a resolution to abstain from alcohol completely for 12 months, following the assaults. He now drinks sparingly, perhaps one glass per fortnight.
20. He is described as rarely socialising in public these days, preferring to focus on his family, especially his young son, who has ongoing health and development issues. He attends social gatherings less often, making excuses to be at home instead.
21. The referees refer to him as having been deeply affected by the assaults, and having taken steps to improve himself: having regular counselling, adopting regular meditation and other lifestyle changes. This is consistent with the reports from his psychotherapist and the forensic psychologist, referred to below.
22. His referees also refer to his charity work.
23. Dr Arulanandarajah commenced seeing the psychotherapist, Mr Jeremy Candappa, in December 2015. He still has regular appointments with him (currently via TeleHealth). He said Mr Candappa also visited Kalgoorlie as part of his practice, until interrupted by the Covid-19 pandemic. Mr Candappa described Dr Arulanandarajah as exhibiting, prior to the assaults:

...reactive anxiety and depression, exacerbated by excessive alcohol use. It was evident that the misuse of alcohol was attributed to the high levels of stress, heavy workload and significant challenges he faced in relation to his family and work additions.[26]

1. Dr Arulanandarajah had developed a habit of binge drinking as a way of dealing with stress. In the years leading up to the assault, he was working 6 to 7 days per week at two different practices. He was working 14 hour days and 6 pm to 8 am.[27] He was deeply affected by the death of his father in October 2012.
2. Mr Candappa said Dr Arulanandarajah has struggled with remorse and guilt. However, over the last four years he has worked hard to implement:

...better coping strategies [for] dealing with his mood swings, fatigue and lack of energy. He has actively engaged in regular counselling, reduced his overall workload, and scheduled regular breaks from his practice and work. He has established regular relaxation techniques which include mindfulness practice and meditation that have been clearly integrated into his daily routines.[28]

1. In his report of 6 February 2017, Mr Candappa said:

I am of the view that Dr Juviraj Arulanandarajah presents as little risk of any further misconduct; including [presenting] no threat to any of his patients or other professional staff and other members of the community that he may come into contact with. I have found him to be a person of personal and professional integrity, and extremely compassionate in his practice as a doctor.[29]

1. This was reiterated in Mr Candappa's report of 22 August 2017.
2. The pre-sentence report by the forensic psychologist Ms Pamela Matthews said that in her view:

Dr Arulanandarajah's offending behaviour in July 2015 results from a mixture of: (a) mild depressed mood state reactive to yet another experience of miscarriage in 2014; (b) persistent work and family life stress, for example: the nature of his work, hours of his working week and day, and the difficulties in conceiving a child; and (c) his alcohol abuse which was at hazardous levels...[30]

1. Dr Arulanandarajah has taken responsibility for his conduct, which he has no recollection of, because he was so drunk. He pleaded guilty in the Magistrates' Court. This resulted in a lesser criminal sanction, but also in not putting his victim through the trauma of a contested hearing. It also led to the chain of events comprising the disciplinary process, which has been underway for more than five years.
2. We accept his remorse is genuine and deep, and the changes he has made in the light of the assaults have literally been life-changing.
3. We accept alcohol was a major factor in the assault perpetrated by Dr Arulanandarajah. We accept he has now successfully managed to curb his alcohol consumption. This is now down to a minimal level and there is little indication of any risk it may become problematic again.
4. There is no suggestion that Dr Arulanandarajah presents a risk to patients in a professional setting.

1. The Board submitted that specific deterrence was a minor, but not non-existent factor. We agree. Certainly, the extensive indications of remorse, insight and rehabilitation, very much reduce the applicability of specific deterrence.
2. The key question for our consideration is the role of general deterrence.
3. We deal first with one submission made by counsel for Dr Arulanandarajah which we do not accept. It was said that general deterrence has no application here, because members of the profession do not need to be sent a message that they should not perpetrate sexual assaults. They know that already.
4. We reject that submission. The same logic would suggest that the more serious the breach, the less the need for general deterrence.
5. General deterrence does have a legitimate role to play in disciplinary proceedings where criminal charges have been proved, and a sentence imposed. Disciplinary proceedings have their own separate role and purpose - to protect the public and the reputation of the profession. As is frequently stated, disqualification by way of general deterrence in disciplinary cases is not for the purpose of punishing the practitioner, but to send a message of deterrence to the profession, which is also heard by the community. We acknowledge that care needs to be taken in a case such as this, where the doctor has already been criminally sentenced, with general deterrence having already been taken into account in the magistrate's decision. But that was for the purposes of criminal sentencing, where punishment is an element. A doctor who enjoys the privilege and responsibility of registration is subject to the disciplinary regime in addition to the criminal regime, in a way other citizens are not.
6. The point is validly made by the Board that sexual assault by a doctor, even if unconnected with practice, is incompatible with the attributes required in a GP, in carrying out their practice. These include dependability and trustworthiness. Further, part of the role of a GP is to be able to respond sensitively and effectively to victims of sexual violence. Being a perpetrator of such violence indicates a lack of empathy for the victims of sexual violence.
7. We do however accept the submission for Dr Arulanandarajah that we need to exercise care to avoid 'double punishment'.[31]

1. Concerning the imposition of a disqualification period, we were referred to numerous prior court and tribunal decisions, especially on behalf of Dr Arulanandarajah. All of these have significant differences from the present case. Accordingly, none of them are particularly useful as comparators.
2. Many relate to conduct which was connected to the practice of the profession - sexual relationships with patients, or with the mother of a child who was a patient, conduct which extended beyond a single episode, sometimes over years, physical contact or assaults in the consulting room, and exploitation of vulnerable patients.
3. The Board referred to the case of Nursing and Midwifery Board of Australia v Little [2020] VCAT 687. This was invoked as an example of a case where general deterrence was important because of the strong need to send a message to the profession and public. That matter concerned the nurse in charge of maternity services at Bacchus Marsh Hospital, where a number of avoidable infant deaths had occurred. Ms Little had failed to provide adequate care and supervision, with adverse outcomes occurring in 16 cases between 2008 and 2014. Ms Little had retired in 2015, aged 67. By the time of the Tribunal hearing, she was 73. She had no intention of seeking to return to practice.
4. The parties came to the Tribunal with an agreed proposal for a reprimand, and for Ms Little to give an undertaking not to practise ever again. However, the Tribunal did not accept the agreed position, and instead suggested to the parties that general deterrence required that a 10 year suspension be imposed. This was accepted by the parties in the hearing.
5. We accept that, as demonstrated in Little, general deterrence has a particular role to play in disciplinary proceedings. Aside from that, however, the circumstances of the two cases are quite different, and ultimately, general deterrence has less of a role to play here. We note that Little concerned the incompetence of the senior nurse involved in a notorious failure to protect mothers and babies over an extended period. There was no indication of any criminal charges in that case. And, of course, it related to conduct in the practise of the nurse's profession.
6. We also note the recent case of Dental Board of Australia v BYX, [32] already referred to. This was an instance of conduct outside practice, which had been dealt with criminally before coming to the Tribunal. In that case, a dentist indecently assaulted and groomed his sister-in-law when she was 14 - 16 years old. He was found guilty in the Magistrates' Court despite contesting the charges. He was sentenced to imprisonment, reduced to a 300 hour Community Based Order on appeal. He still denied the conduct at the Tribunal hearing. He was disqualified from applying for reregistration for three years (in addition to two years' suspension already served). The Board had sought eight years. Despite certain mitigating matters arising from the judge's sentencing remarks on appeal, the Tribunal noted the practitioner's continued denial, the breach of trust of a vulnerable young person involved, but that it had not been demonstrated the conduct would not be repeated.
7. It is apparent that the situation in BYX differs in many ways from the present circumstances. This was a single episode, of drunken sexual assaults on a friend and former colleague. It did not involve exploitation of a professional power imbalance or an age imbalance. Here, the practitioner has acknowledged his wrongful conduct at an early stage, and remorse and rehabilitation have been demonstrated unequivocally.
8. As comparators, we have also had reference to the determinations imposed in cases relating to conduct unconnected with the practise of the relevant profession, concerning domestic violence.[33] Of course, each case is to be determined according to its own unique facts and circumstances.

1. We accept the proposition agreed by both parties that Dr Arulanandarajah should receive a reprimand. This in itself is a serious sanction for a practitioner who values his good name. It is a formal statement, publicly made and recorded, of denunciation of the doctor's unacceptable actions in committing the sexual assaults in 2015.
2. We now turn to the competing submissions as to whether Dr Arulanandarajah should be disqualified from practising, and if so, for what period. As noted, the Board submitted his registration should be cancelled, and he should be disqualified from practising for three years. Alternatively, his registration should be suspended. For Dr Arulanandarajah on the other hand, it was submitted that no sanction other than a reprimand should be imposed.[34]
3. As stated, sexual assault by a doctor clearly flies in the face of the fundamental tenet that the medical profession has a responsibility to care for and protect members of the community. In this case, it is clear that Dr Arulanandarajah's victim suffered profound negative consequences from the assaults. The contradiction between such conduct and the duty and reputation of the profession is so stark that some period out of practice is called for here.
4. On the other hand, there are a number of strongly mitigating factors present. These point to a lesser period of disqualification being imposed than would otherwise be the case. In particular:
   • Dr Arulanandarajah promptly self-reported when criminal charges were laid, and accepted the allegations made against him from an early stage, despite indicating he has no recollection of the assaults, and has co-operated with the Board throughout the process.
   • There are no prior adverse findings against him.
   • Dr Arulanandarajah has demonstrated a high degree of remorse, and has taken literally life changing steps by way of rehabilitation. Also, the major stresses referred to by the forensic psychologist Ms Pamela Matthews have been removed, in particular the stresses associated with long hours and work style, and his abuse of alcohol.
   • The delay since the assaults occurred is now five and a half years.
   • The assaults were on a friend, not a patient. As noted, there is no suggestion that Dr Arulanandarajah presents a risk to patients in a professional setting
   • Also, while they were both employed through the same large organisation, Dr Arulanandarajah and the victim had not worked in the same clinic for two years. The relationship by that stage was one of friendship, rather than as doctor and nurse working together in the same location. There is no suggestion that he presents a risk to colleagues in a professional setting.
   • There is a low probability of Dr Arulanandarajah re-offending. This was estimated by the forensic psychologist Ms Pamela Matthews as being between 2% and 8% over the five - six years from February 2016. There is no suggestion that re-offending has occurred.
5. As to delay, in Stirling v Legal Services Commissioner [2013] VSCA 374 at [127] the Court of Appeal was critical of the fact that almost four years elapsed from the commencement of the investigation to the completion of the Tribunal hearing. It said that disciplinary matters should be brought to justice quickly.
6. The circumstances in which the delay in this case occurred are set out above. It is true that the parties awaited the completion of the criminal proceedings. But it is now four years since that occurred.
7. Regardless of the cause of the delay, however, it has provided the opportunity for Dr Arulanandarajah to demonstrate remorse and insight and engage in rehabilitation. As noted, he has done so to a high degree. The length of time which has elapsed has enabled him to demonstrate that he has consolidated the changes he has made to his work and life habits.
8. In many ways, this case is an exemplar of rehabilitation. Dr Arulanandarajah has set up a new life thousands of kilometres away from his former home and workplace in Melbourne. He has taken resolute action to reduce his alcohol consumption to a very minimal level and completely altered his work style and lifestyle.
9. Also, we note the profound impact that the assaults, and the drawn-out processes which have followed on from them over the last five and a half years, has had on Dr Arulanandarajah and those around him. We understand there was some adverse publicity associated with the criminal process.
10. Finally, we take into account the numerous positive references provided in support of Dr Arulanandarajah. Together, these provide context and reinforcement as to the journey of rehabilitation Dr Arulanandarajah has been on since the assaults in July 2015, as well as underlining the genuineness of his remorse. They also describe the valuable contribution he has made through his practice, and wider community and professional work.
11. We regard suspension as appropriate here, rather than cancellation. This is because, in the light of all the matters set out above, we do not regard Dr Arulanandarajah as being presently unfit to practise.
12. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [41]- [45], the Tribunal described the distinction between the determinations of suspension and cancellation as follows:

The major difference between a suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration ...

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct or has been shown to be a serial offender.

1. Weighing up all the above matters, we determine that Dr Arulanandarajah's registration should be suspended for a period of three months. The conduct was sufficiently serious, and harmful to the reputation of the profession, such as to warrant a period out of practice for the purposes of general deterrence. But the mitigating factors are significant, warranting this being for a lesser period than would otherwise apply. In particular we refer to the connection with practice being only slight, the delay, Dr Arulanandarajah's insight and rehabilitation, the absence of any present concerns about protection of patients or colleagues, the numerous positive references received, and his contributions to the profession and the community.
2. There was some suggestion made in general terms that Dr Arulanandarajah's patients would suffer from his absence due to disciplinary action. However, the evidence about this was insubstantial, and not specific. We have allowed a short period prior to the suspension commencing to enable arrangements to be made to reduce the disruption this will cause to his patients.

[1] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] [2018] HCA 15, 92 ALJR 423, (2018) 265 CLR 304. The Tribunal received correspondence between the parties about this issue dating from July 2018. In February 2020, the Board referred Dr Arulanandarajah's solicitors to the decision of Hughes J, President of the South Australian Civil and Administrative Tribunal, in Medical Board of Australia v Yu (SACAT reference number 2019/SA002874, 14 January 2020). This determined that the Tribunal did have jurisdiction, in what appear to be equivalent circumstances to the present. That is, the disciplinary proceeding was not subject to the exclusive jurisdiction of the Commonwealth under s 75(iv) of the Constitution. This was on the basis that the Medical Board is not an emanation of the Crown in right of the State. There was no submission that the Tribunal should not proceed with this hearing due to lack of jurisdiction.

[3] Submissions by counsel on behalf of the Board dated 17 September 2020.

[4] Submissions by counsel on behalf of Dr Arulananarajah dated 26 October 2020 (accompanied by two folders containing character reference material and authorities largely not included in the joint Tribunal Book).

[5] In accordance with s 107 of the Victorian Civil and Initiative Tribunal Act 1998, questions of law arising have been decided by the presiding member.

[6] Submissions for Dr Arulanandarajah, at [40]-[41] and [58]-[74]. These two cases are Ziems v The Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279, and A Solicitor v The Council of the Law Socirty of New South Wales [2004] HCA 1; (2003) 216 CLR 253.

[8] Submissions for Dr Arulanandarajah, at [47]-[49] and elsewhere, referring in particulat to Ziems, and Parr v Nurses Board of Victoria (1998) 16 VAR 118.

[9] Counsel for Dr Arulanandarajah suggested that the Board assumed the fact of the conviction automatically entailed that Dr Arulanandarajah was not suitable to continue to practise (or not fit and proper). But that is not a correct characterisation of the Board's position.

[10] Submissions for Dr Arulanandarajah, at [56].

[11] See for example, the decision of the NSW Court of Appeal in Johns v Law Society of NSW [1982] 2 NSWLR, per Moffitt P at 9-10, which referred to the question whether 'past proved unfitness has been changed to fitness', through rehabilitation.

[12] [2012] VSC 394.

[13] This is relevantly the same as the definition in s 297 of the Legal Profession Uniform Law, currently in force.

[14] Section 4.4.17 was the provision which empowered the Tribunal to make orders following a finding of professional misconduct, including suspension of his practising certificate, or a prohibition on the grant of a practising certificate for a specified period.

[15] [2017] VCAT 109.

[16] [2015] QCAT 439.

[17] Submissions for Dr Arulanandarajah, at [36]- [39].

[18] [2005] VCAT 826.

[19] A Solicitor v The Council of the Law Socirty of New South Wales [2004] HCA 1 at [20], and New South Bar Association v Cummins [2001] NSW CA 284, per Spigelman CJ at [56].

[20] Roylance v General Medical Council [1999] UK PC 16.

[21] Submissions for Dr Arulanandarajah, at [51].

[22] Submissions for Dr Arulanandarajah, at [41].

[23] [2019] VCAT 1739

[24] See for example, Dr Arulanandarajah's submissions at 37(iii)(b).

[25] The footnote to the Board's submission was as follows:

'See variously: NMBA v Augustine [2018] VCAT 1526 (rape, cancellation of registration with 10 year disqualification period), MBAv Black [2016] VCAT 892 (child pornography offences, three month suspension of registration), NMBA v Hutchinson [2018] VCAT 1705 (child pornography offences, six year disqualification), NMBA v Sudell (aggravated burglary, deprivation of liberty, assault, four years, WA State Administrative Tribunal_), NMBA v Roe [2018] WASAT 92_ (breach of violence restraining order, disqualification period 12 months), MNBA v Camm [2019] SAHPT 3 (money laundering, six month suspension of registration).'

[26] Report by Mr Jeremy Candappa of 22 October 2020, at paragraph 4.

[27] Report of Ms Pamela Matthews, forensic psychologist, dated 3 February 2016.

[28] Report by Mr Jeremy Candappa of 22 October 2020, at paragraph 15.

[29] Report by Mr Jeremy Candappa of 6 February 2017, at paragraph 50.

[30] Report of Ms Pamela Matthews of 3 February 2016, at page 14.

[31] See Nursing and Midwifery Board of Australia v Faulkner [2008] QCA 97.

[32] [2019] VCAT 1739,

[33] In particular, Medical Board of Australia v Koulouris [2020] VCAT 348 (reprimand plus three month suspension), Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 (reprimand plus one month suspension), and Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 (reprimand).

[34] With regard to this submission as to determinations by the Board, which was set out in its submissions of 17 September 2020, we note that on 26 October 2020, extensive additional documentation was provided to the Board, and the Tribunal, on behalf of Dr Arulanandarajah,, including extra mitigatory material.