1. In response to the jurisdictional issue raised by the respondent, the Tribunal determines that it has jurisdiction in relation to the pre-2010 conduct alleged against him.
2. The matter remains listed for the resumption of the hearing on 24 June 2025, as previously ordered. But as discussed on 27 May 2025, it is listed for an administrative mention on 18 June 2025. There is no hearing on that date, and the parties do not attend the Tribunal. By the close of business on that date, the parties are to write to the Tribunal by email (preferably jointly) stating their proposals for the future conduct of this matter, in light of this decision.

1. This is the determination of a jurisdictional argument[1] which has been raised by the respondent while the proceeding is part heard. In December 2021, the applicant (the Board) commenced this proceeding at VCAT. It brought 19 allegations against a specialist endocrinologist, Dr Murray Gerstman, concerning complaints made by 15 women, primarily relating to the way in which breast examinations were conducted, spanning the period from 1990 to 2018.[2]
2. These are brought under the Health Practitioner Regulation National Law (National Law). The National Law as applicable in Victoria is set out in a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.
3. These allegations span the period when various prior corresponding Acts applied, regulating the conduct of medical practitioners, before the National Law commenced, on 1 July 2010. It was clearly tacitly accepted by both parties that VCAT had jurisdiction to hear and determine all those allegations, including those relating to conduct alleged to have been engaged in prior to 1 July 2010.
4. The Tribunal heard evidence from ten of the complainants during the first hearing block allocated, 25-29 November 2024. A second block of hearing dates was scheduled for 12-16 May 2025. However, on 9 May 2025, a jurisdictional point was raised on behalf of Dr Gerstman, which required determination before the matter could proceed further. The second block of hearings was adjourned, and following an exchange of submissions, argument was heard on that point on 27 May 2025.
5. The jurisdictional issue arises from the decision handed down on 20 March 2025 by the South Australian Court of Appeal in the matter of Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith[3] (Jackson & Smith). The Court of Appeal decision relates to both those matters, as the issues raised in each were similar.
6. In Jackson & Smith, the Court of Appeal found that allegations brought against both of those practitioners, concerning conduct engaged in prior to their being registered under the National Law, were beyond the scope of the jurisdiction of the South Australian Civil and Administrative Tribunal (SACAT).
7. The contention made by Dr Gerstman here is that similarly, the correct application of the relevant provisions of the National Law in this case is that VCAT does not have jurisdiction to hear and determine nine of the allegations (involving seven of the complainants) being those concerning conduct alleged to have occurred prior to Dr Gerstman's registration under the National Law, from the date it commenced in force, 1 July 2010.[4]
8. As the parties agreed, VCAT should follow a decision of a superior intermediate court of another State to the extent that it is applicable to any decision it is required to make.[5] This is particularly so in matters involving the regulation of health professionals, since this is carried out by way of a national scheme, with consistent legislation applying in all Australian jurisdictions.
9. The Board contends, however, that VCAT does have jurisdiction to consider alleged pre-2010 conduct by Dr Gerstman. It does so on two bases. In each case, it says that the decision in Jackson & Smith is not applicable to Dr Gerstman's circumstances. It is properly to be distinguished from the present case.
10. The Board submits that, properly understood, the ratio decidendi[6] of Jackson & Smith is not applicable to the circumstances of Dr Gerstman. It says the ratio of the Court of Appeal's decision relates to circumstances where a practitioner is alleged to have engaged in conduct prior to 2010 but had not been registered at all prior to 2010 (which is not Dr Gerstman's situation). Dr Gerstman does not agree. He says the ratio of the decision does apply to his circumstances.
11. Secondly, the Board says that the correct interpretation of the relevant provisions of the National Law is that the Tribunal does have jurisdiction to deal with pre-2010 conduct in any event. This is for the reasons stated in Medical Board of Australia v XOT (XOT)[7] and earlier decisions of various Australian tribunals dealing with health practitioners which were referred to, and followed, in that decision. The Board points to the fact that those cases were not considered by the Court of Appeal in its decision, and that there was no analysis of the various relevant issues considered in those cases, including issues concerning 'retrospectivity' and it so it cannot be regarded as having overturned them.
12. The Board says that amendments made to the National Law which came into effect on 15 May 2023, confirm this. Dr Gerstman disagrees.
13. Quite recently, on 10 May 2025, Dr Gerstman has surrendered his registration. The parties agreed, however, that this does not impact on the analysis required in dealing with the present jurisdictional point.[8]
14. For the reasons set out below, I find that the ratio of Jackson & Smith does not apply to Dr Gerstman's circumstances. I also find that the South Australian Court of Appeal did not deal with, and did not overrule, the decision in XOT, and the decisions it applied. Hence, I find that the Tribunal does have jurisdiction in relation to the pre-2010 conduct alleged against him.

The decisions of Australian tribunals in XOT, and in the prior decisions referred to in XOT

1. The issue of VCAT's jurisdiction to hear and determine allegations relating to conduct prior to 1 July 2010 was the subject of its decision in XOT. This was handed down on 25 October 2022_._ The evolution of the way in which VCAT, and its counterpart tribunals in other states, have dealt with allegations relating to conduct prior to 2010 is set out in detail in paragraphs [1] to [47] of XOT. Those paragraphs of XOT should be referred to, for a detailed description of how that evolution took place. Rather than quoting that part of the decision in full, I note the following points:
   • The first key provision is s 35(1)(i), which provides that a function of the Board is:[9]

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. [emphasis added]

• The second key provision is s 193(1)(a), which states that the Board:

must refer a matter about a registered medical practitioner to VCAT if... the Board reasonably believes the practitioner has behaved in a way that constitutes professional misconduct. [emphasis added]

• For the first five years after the National Law came into effect, jurisdiction in relation to such pre-2010 conduct was explicitly preserved by regulation 30 of the Health Practitioner National Law Regulation 2010 (National Law Regulations).[10] However, this regulation sunsetted after five years, on 30 June 2015.
• Since that time, the question of the application of the National Law to pre-2010 conduct has been considered in the 2020 Tasmanian decision of Medical Board of Australia v Thompson[11] and in two 2021 Western Australian decisions: Pharmacy Board of Australia v Hamilton[12] and Medical Board of Australia v Lagrange.[13] A brief summary of each of those matters is set out at [25] to [36] of XOT.
• In each of these three cases, the relevant tribunal found that even after regulation 30 had sunsetted, the National Law applied, and that this did not offend the principle against retrospectivity.
• Since 1970, the sequence of Acts which have applied to the registration and conduct of medical practitioners, including Dr Gerstman, is as follows:
  • between 23 December 1970 and 30 June 1994, the Medical Practitioners Act 1970 (Vic);
  • between 1 July 1994 and 30 June 2007, the Medical Practice Act 1994 (Vic);
  • between 1 July 2007 and 30 June 2010, the Health Professions Registration Act 2005 (Vic); and
  • on 1 July 2010, the National Law commenced.
• The XOT decision at [37] to [42] summarised relevant parts of the decision of the 1989 New South Wales Court of Appeal decision in Walton v McBride.[14]
• It then summarised also applied the 2019 VCAT decision of Dental Board of Australia v Ho.[15]

1. With regard to Ho, the XOT decision said at [43] to [47]:

Ho is different from the above four decisions in that the conduct took place while the practitioner (a dentist) was not registered. In Ho, the Tribunal analysed the purpose of the National Law, its text, and the context of s 193(1). It noted that words 'has behaved' literally reach back to past behaviour, either while the practitioner was registered, or before then.[16]

Part 8 of the National Law concerns the "Health Performance and Conduct" of practitioners. It provides for a scheme for the protection of the public and the profession, including notification of conduct by registered practitioners, investigation of registered practitioners, and taking regulatory action against a registered practitioner where appropriate.[17]

1. Concerning context, numerous provisions of the National Law were noted which indicated that the jurisdiction conferred by s 193(1) includes conduct when the practitioner was not registered. For example, (c) in the definition of 'professional conduct' in s 5 of the National Law refers 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.

This includes in the definition conduct unconnected to the practitioner's profession which may bear on his or her fitness to hold registration and for this reason may be conduct that requires regulatory action under Part 8. There is no reason to limit that 'unconnected conduct' to conduct when the person was a registered health practitioner.

1. The reasoning in Ho is consistent with that in Thompson, Hamilton, Lagrange, and McBride in that it supports the conclusion that the text of s 193(1) provides for it to 'reach back' to past behaviour, and that this aligns with the purpose and context of the National Law.
2. The Tribunal's conclusions in XOT were relevantly set out at [52] to [65]:

1. Consistently with the authorities referred to above, I find that National Law applies to Dr XOT's conduct between 1977 and 1986, and that the presumption against retrospectivity does not apply to prevent this. My reasons are as follows. These largely reflect the arguments in the Board's submissions.
2. First, the plain meaning of s 35(1)(i) and s 193(1) is that prior conduct is to be dealt with under the National Law. In particular, under s 35(1)(i), one of the functions of the Board is to refer matters about health practitioners who are or were registered under 'this Law or a corresponding prior Act' to the responsible tribunal. And under s 193(1)(a), the Board must refer a matter to VCAT where it reasonably believes that 'the practitioner has behaved in a way that constitutes professional misconduct'.
3. Second, cl 7(1) of Schedule 7 to the National Law provides that 'in the interpretation of a provision of this Law, the interpretation that will achieve the purpose or object of this law is to be preferred to any other interpretation'.
4. The purpose of the National Law is to protect the public. As the Board rightly submitted, conduct which occurred prior to the commencement of the National Law may be powerful evidence of a health practitioner's fitness to practice. And it would be a significant impairment of the purpose of the National Law if findings of professional misconduct were limited to conduct which occurred after the commencement of that legislation.
5. It would be an absurd outcome if, following the expiry after five years of a transitional provision (regulation 30) a practitioner's prior conduct came to be beyond the reach of the regulator in carrying out its protective functions. Such an intention, which would in effect, provide an amnesty to such a practitioner, is not to be imputed to Parliament.[19]
6. Third, in terms of context, the provisions of the National Law generally are consistent with it being applied in relation to prior conduct, rather than the corresponding prior Act. For example, s 139 provides:

(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 Divisions 2 and 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

1. Thus, if a practitioner had only been registered under a corresponding prior Act, their conduct could nevertheless be dealt with under the National Law, with whatever adaptions are necessary to make this practicable. Again, there are in s 139(3) the same provisos mitigating against any potential adverse impacts arising from retrospectivity as appeared in regulation 30.
2. The above three reasons support the conclusion that the National Law does have retrospective operation, and that consideration of its text, purpose and context serve to rebut the presumption against retrospective interpretation. On that basis, I find that the allegations in this case may be brought in this case by the Board against Dr XOT under the National Law.
3. Additionally however, it is arguable that in the relevant sense, application of the National Law to Dr XOT is not in fact retrospective.
4. This is on the basis of the distinction referred to above in the above passage from Pearce,[20] between legislation which has a retrospective operation and legislation which affixes present and future consequences to past events.
5. Certainly, when compared with some of the examples set out above of cases where this distinction has been applied, the outcome for Dr XOT is more benign. This is not case where a higher standard or more disadvantageous outcome is sought to be applied now, compared with the standard applicable previously. In that sense, Dr XOT is not as adversely affected as the solicitor's clerk who was prevented from practising by the new law, or the fishermen who lost his licence, or the company found to have engaged in 'unfair training', when that was not the case under the previous law.
6. Clearly, the successive Acts regulating medical practitioners, going back to the Medical Practitioners Act 1970, have always had as a core function, the provision of a system for dealing with serious conduct such as that alleged against Dr XOT. And the sanctions available have always included cancellation of registration. For example, under section 17(1)(a) of the Medical Practitioners Act 1970, the Medical Board of Victoria had the power to remove from the register, a practitioner who had been convicted of an indictable offence.
7. Thus, in terms of the approach described in World Best Holdings,[21] above, there is no unfairness to Dr XOT in applying the provisions of the National Law, as compared to those which were in place under relevant prior corresponding Act, at the time he engaged in the conduct, between 1977 and 1986.
8. A related contention put by the Board, which I also accept, is that the presumption against retrospective operation of legislation only applies where that would impinge on a person's accrued rights, privileges, obligations or liabilities. It said that health practitioners registered under the National Law do not have any accrued rights, privileges, obligations or liabilities in regard to prior conduct which had not been brought to the attention of the regulator prior to the participation day for the National Law, nor do they have an accrued right to be dealt with under a corresponding prior Act.

1. On 15 May 2023, s 138 and s 139 were repealed, and replaced by new provisions, being: s 138, s 139, s 139A, and s 139B. These were introduced by the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022, an Act of the Queensland parliament. As they came into effect on 15 May 2023, they are referred to in this decision as the May 2023 Amendments.
2. These have broader application than the former s 138 and s 139. In particular, the new s 138 states that a notification may be made about, and proceedings taken against, health practitioners concerning behaviour that occurred while registered under the National Law or before being registered under the National Law, or during any period when the practitioner was not registered (due to, for example, cancellation, suspension or withdrawal of registration). Thus, the new s 138 relates to conduct at any time.
3. I was provided by the Board with the relevant passage from the Explanatory Notes to the Bill which introduced these changes: the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld):[22]

Clause 90 replaces sections 138 and 139 of the National Law, which specify when notifications may be made and proceedings may be taken in relation to health, conduct and performance issues under part 8 of the National Law. The amendments allow National Boards to take disciplinary action against persons who continue to practi[s]e or use a protected title after their registration has lapsed. The amendments also clarify when disciplinary proceedings can be undertaken against a registered practitioner for behaviour that occurred while the practitioner was unregistered.

New section 138 provides that a notification may be made and proceedings may be taken under part 8 against a person who is a registered health practitioner in relation to behaviour that occurs while the practitioner is registered, occurred before the practitioner was registered, or that occurred during any other period in which the practitioner was unregistered, such as during a lapse or suspension in registration. This amendment is intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration, which has been the longstanding interpretation and practise of regulators and tribunals. The section also clarifies that behaviour that occurred before a practitioner was registered may not constitute unsatisfactory professional performance or unprofessional conduct, and that behaviour that occurred during a lapse or suspension in registration may not constitute unsatisfactory professional performance or unprofessional conduct, except as provided by new section 139.

(emphasis added, to illustrate the Boards' argument)

1. The Board argued that this Explanatory Note indicated that the new s 138 should be characterised as an amendment which confirms, or removes doubt as to the application of existing legislation. As such, the Board said, it is presumed to operate retrospectively.
2. Dr Gerstman, on the other hand argues that these provisions created an entirely new legislative regime, which operated prospectively, from 15 May 2023, and therefore the new provisions do not apply to the 14 complaints or notifications his conduct (which were made between May 2013 and February 2020).[23]

1. The functions of a National Board are set out in s 35 of the National Law. They include, in s 35(1)(a), (g) and (i):[24]

(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; or

(ii) are students in the health profession;

...

(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;

1. 'Corresponding prior Act' is defined in s 5 as follows:

corresponding prior Act means a law of a participating jurisdiction that -

(a) was in force before the day on which the jurisdiction became a participating jurisdiction; and

(b) established an entity having functions that included -

(i) the registration of persons as health practitioners; or

(ii) health, conduct or performance action.

1. Part 8 of the National Law (ss 138-207) concerns the health, conduct and performance of practitioners.
2. Sections 138 and 139 concerned the scope of Part 8. Until replaced with effect from 15 May 2023, they provided:

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.

(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.

1. Sections 138 and 139 were repealed with effect from 15 May 2023, and in their place new ss 138, 139, 139A and 139B were enacted. These are as follows:

138 - Application of Part to persons who are registered health practitioners

(1) A notification may be made under this Part about, and proceedings may be taken under this Part against, a person who is a registered health practitioner in relation to behaviour that -

(a) occurs while the practitioner is registered in a health profession under this Law; or

(b) occurred before the practitioner was registered in a health profession under this Law; or

(c) occurred during any other period in which the practitioner was not registered in a health profession under this Law, including, for example, if the registration had ended or was cancelled, suspended or withdrawn.

(2) A registered health practitioner's behaviour that occurred at a time specified in subsection (1)(b) or (c) may not constitute -

(a) unsatisfactory professional performance; or

(b) unprofessional conduct, except as provided by section 139.

139 - Proceedings in relation to practitioner's behaviour while temporarily unregistered

(1) This section applies if -

(a) proceedings are taken under this Part against a person who is a registered health practitioner; and

(b) the panel or tribunal is satisfied the behaviour to which the proceedings relate occurred -

(i) after the practitioner's registration ended under section 108(2)(a); and

(ii) while the practitioner continued to practise the health profession.

(2) The proceedings may be taken and findings may be made as if the practitioner were registered at the time the behaviour occurred.

(3) Subsection (2) does not prevent a finding of unprofessional conduct on the basis the person was contravening a provision of Division 10 of Part 7, whether or not the person has been prosecuted for, or convicted of, an offence in relation to the contravention.

(4) In this section -

behaviour includes -

(a) continuing to take or use a title protected under Subdivision 1 of Division 10 of Part 7 for a health profession; or

(b) continuing to undertake a practice protected under Subdivision 2 of Division 10 of Part 7 for a health profession.

139A - Application of Part to persons who were registered health practitioners

(1) This section applies to a person who was, but is no longer, registered in a health profession under this Law.

(2) A notification may be made under this Part about, and proceedings may be taken under this Part against, the person as if the person were still registered in a health profession under this Law in relation to behaviour that occurred while the person was registered.

(3) For the purposes of subsection (2), this Part (other than Divisions 2 and 6) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

139B - Application of Part to persons who were registered under

corresponding prior Act

(1) This section applies to a person who -

(a) was registered in a health profession under a corresponding prior Act; and

(b) is not, and has not been, registered in a health profession under this Law.

(2) A notification may be made under this Part about, and proceedings may be taken under this Part against, the person as if the person were registered in a health profession under this Law in relation to behaviour that occurred while the person was registered under the corresponding prior Act.

(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 could have been taken under the corresponding prior Act.

For the purposes of subsection (2), this Part (other than Divisions 2 and 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

1. The background to the Jackson & Smith decision of 20 March 2025 is that two matters came before SACAT which raised similar issues, relating to the extent to which it had jurisdiction to deal with conduct prior to registration.

1. Mr Jackson was a paramedic, working for the South Australian Ambulance Service. He applied for registration as a paramedic on 26 November 2018. I understand this was at the time when the registration of paramedics was first introduced. However, it took until 22 May 2019 for him to be registered by the new Board.[25]
2. In the meantime, between 6 and 7 January 2019 (that is, prior to becoming registered) Mr Jackson allegedly engaged in physical and sexual activity with a colleague without consent during a shift. His employment was suspended on 30 January 2019, and he was charged with criminal offences on 6 May 2019. Those charges were withdrawn by police on 3 September 2019, and were not subsequently re-laid. However, Mr Jackson had failed to advise the Board of these matters (presumably in early February 2019), in breach of his obligation to do so, under s 130 of the National Law. The Board apparently became aware of these matters around 9 September 2019, when it commenced an investigation into them.
3. Mr Jackson remained registered (with his registration being renewed in the meantime) until his registration lapsed, on 1 December 2021.
4. On 22 February 2023, the Board referred the matter to SACAT. It brought two allegations. The first was of failing to advise the Board that he had been suspended by his employer and charged with criminal offences. The second was that he had made a false or misleading declaration regarding those matters in his application to renew his registration.
5. Jurisdictional issues were identified. A preliminary hearing was conducted before President Hughes. On 22 November 2023, Her Honour handed down her decision (Paramedicine Board of Australia v Jackson.[26]
6. Her Honour found that SACAT had no jurisdiction to hear the case. This was on two bases. The first was because the practitioner was not registered at the time of referral to it. The second was that there was no jurisdiction to deal with conduct which occurred in February 2019, given that Mr Jackson was not registered until 22 May 2019.
7. Subsequently (presumably in late 2023) the Board appealed that decision to the South Australian Court of Appeal.

1. Mr Smith was a physiotherapist who was first registered (provisionally) in 1996. Prior to 2010, he was registered under the Physiotherapy Practice Act 2005 (SA). This fact was not, however, mentioned by the Court of Appeal in its decision, and the Boards argues that this impacts on the ratio of its decision - see below.
2. In 2007 or 2008, Mr Smith allegedly sexually assaulted, or engaged in sexualised touching, of a female child at a picnic in a National Park. On 24 July 2019 criminal charges were laid in relation to that alleged conduct. Mr Smith did not notify the Board.
3. In November 2020, Mr Smith was refused renewal of his professional indemnity insurance, and so was not able to practise from that point.
4. On 11 December 2020 a magistrate found Mr Smith not guilty of the sexual assault charges.
5. On 14 December 2020 the Board received notification of those matters. It also later received further unrelated notifications, relating to separate conduct in the course of practice in April 2017 and December 2019.
6. On 20 March 2022 the Board commenced a disciplinary proceeding at SACAT. There were six allegations. Allegations numbered 1-4 and 6 related to the alleged conduct in the course of practice. Relevantly for present purposes, allegation 5 was that Mr Smith had engaged in sexualised interactions with a child in 2007/2008.
7. On 22 December 2022, Mr Smith's registration lapsed.
8. On 25 October 2023, SACAT conducted its hearing. Mr Smith did not participate.
9. However, no decision was handed down, since, following Justice Hughes' decision in Jackson, and the appeal lodged by the Board in that case, SACAT referred the Smith matter to the Court of Appeal, as a Case Stated.

1. Hence, the Court of Appeal had two matters before it, which it dealt with together: the Jackson appeal by the Board, and the Case Stated in Smith. Following an exchange of submissions by the Board and Mr Smith (Mr Jackson did not participate in the appeal process) the Court of Appeal heard argument on 30 May 2024. It handed down its decision on 20 March 2025.
2. In the meantime, as noted, the first hearing block in the present case involving Dr Gerstman was completed, on 25-29 November 2024. The second hearing block, scheduled for 12-16 May 2025, was adjourned to deal with the present jurisdictional point raised by Dr Gerstman on 9 May 2025. Following an exchange of submissions, argument was heard on that on 27 May 2025.

The decision of the President of SACAT in Jackson

1. Her Honour identified two relevant 'temporal limitations' on SACAT's jurisdiction. The Court of Appeal described the first of these as follows:

... s 193 of the National Law 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 (emphasis added).[27]

1. That finding, concerning the date of referral, was overturned by the Court of Appeal. It found that referral to SACAT could occur after registration had ceased.
2. Concerning Dr Gerstman, it is common ground in any event that he was registered when this proceeding was commenced by the Board at VCAT in December 2021. As indicated below, however, the Court of Appeal's analysis of this point is relevant to the present case.
3. Moving to the second temporal limitation, the Court of Appeal described this as follows:

...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.[28]

1. That finding, concerning the date of the alleged conduct, was in effect upheld by the Court of Appeal.
2. I note that the President's decision at [61] referred to the disciplinary regime as being primarily aimed at future conduct, in terms of protecting the public. Her Honour said the scheme provides a more limited authority to take action with regard to former registered practitioners, as such persons are not an immediate risk to the public in relation to the provision of health services.
3. Concerning the May 2023 Amendments, I pause here to note that, while the President's decision did deal with these, the Court of Appeal's decision did not. It was common ground between the parties before the Court of Appeal that the version of the National Law in force from 21 October 2022 to 14 May 2023 was the version applicable in the cases before it.
4. With regard to the effect of the May 2023 Amendments, the President's decision said, firstly, at [69] and [70]:

The Board contended that the amendments reveal and clarify the legislative purpose of the referral provisions and may be taken into account in the construction of the law as it was when the referral occurred.

That contention is consistent with the decision of Newcastle City Council v GIO General Ltd[29] and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd.[30] In the former case, McHugh J said:

... a court is permitted to have regard to the words used... in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the provision's legislative history.[31]

1. And at [76]-[80] Her Honour said:
   1. The Board contended that whilst the amendments do not have retrospective effect, they make clear that the legislative intention is that a board is intended to have power to make a referral in respect of a health practitioner's behaviour that occurred prior to the practitioner becoming registered.
   2. The Tribunal accepts that there is no textual indication that the amendments have retrospective effect, as distinct from basing future action on past events. The Board's referral on 28 February 2023 was governed by the law as it stood at that time and the subsequent amendment has not altered that.
   3. The contention that the amendments to Part 8 Division 1 and s 193 merely amplify or clarify the law as it stood at February 2023 is doubtful, but ultimately this does not need to be decided. This is because the key determinant of the Board's ability to refer was, and remains under the law as amended, the respondent's registration status at the time of the referral of the matter to the Tribunal. There is no dispute that, at the time of the referral, the respondent [Mr Jackson] was not registered. The respondent's registration (if there was one) lapsed in 2021 and by the date of the referral in February 2023, the respondent was not registered. This immediately excludes the respondent from the operation of s 193. Nothing in the amendments has altered that.
   4. The provision that governed his referral was s 138 as it stood at 28 February 2023. If the respondent was ever registered (which he denies), he was at the time of referral a person "who was, but is no longer, registered in a health profession". Section 138 remains unamended except that it is now renumbered as s 139A. If the respondent were the subject of a referral now, s 139A would govern the referral.
   5. The effect of the amendments on referrals has largely been directed at those provisions concerning persons who are registered health practitioners at the time of the referral. The respondent is not in that cohort.

1. The conclusion expressed in the italicised passage in paragraph [78] above was however overturned by the Court of Appeal. So, what should properly be drawn from the decision of the President on this aspect?
2. In my view, the above passages contain indications which might be said to be both for and against the Board's submission that the May 2023 Amendments (in particular, the new s 138) merely served to amplify and clarify the law as applicable in Dr Gerstman's circumstances. Paragraphs [69], [70], [76] and [77] might be said to support the Board's contentions, and the first sentence of paragraph [78] to be against them.
3. Overall, however, given this part of the decision relates to a conclusion that was overturned by the Court of Appeal, I do not regard it as standing as a clear authority on the issue determined in XOT and the prior cases decided consistently with it.

The Court of Appeal's decision in Jackson & Smith

1. As a result of the way in which the two cases were presented to, and argued before, the Court of Appeal, its consideration was confined, in both a factual and a legal sense.
2. The Case Stated in Smith was joined to the appeal in Jackson, on the basis that it raised the same issue as the second appeal point in Jackson. That is, whether SACAT lacked jurisdiction in relation to conduct which occurred prior to the practitioner being registered.[32]
3. The Court of Appeal gave a brief description of the factual background to each of the Jackson and Smith proceedings at the beginning of its decision and provided answers to the questions formally arising in each of those cases, at the end.
4. But in its analysis of the issues arising, the Court of Appeal did not distinguish between the circumstances of Mr Jackson and Mr Smith.
5. In particular, as emphasised by the Board in argument before me, the Court of Appeal's decision did not refer to the fact that at the date of the alleged conduct in 2007/2008, Mr. Smith was in fact registered under the Physiotherapy Practice Act 2005 (SA). That fact became apparent to me when it was drawn to my attention by Dr Gerstman's submissions.[33] These referred to the transcript of argument before the Court of Appeal on 30 May 2024, where this was mentioned by counsel for the Boards.[34] But when the decision was handed down, on 20 March 2025, this was not mentioned at all.
6. With regard to the scope of the Court of Appeal's decision as to legal issues, I was told by counsel that it was common ground between the parties before the Court of Appeal that the National Law in its pre-May 2023 form applied in the Jackson & Smith case. Hence the Court of Appeal did not deal with the Board's contention here that the true effect of May 2023 Amendments (and in particular, the new s 138) was, relevantly, to clarify the law as it stood prior to that, in that it served to confirm that boards and tribunals had power to act concerning conduct alleged to have been engaged in under corresponding prior Acts.
7. Nor did the Court of Appeal's decision deal with the issues of retrospectivity and of future operation based on past events which were the basis for XOT, and the decisions it followed. It did not deal with the question of what followed the sunsetting of regulation 30.

1. Even though the Court of Appeal decision overturned the decision of the President in relation to the first temporal limitation (concerning registration status at the time of referral), the Court of Appeal's analysis on that point is nevertheless relevant to the question I have to decide about the application of s 193 to the nine allegations relating to Dr Gerstman's conduct prior to 1 July 2010.
2. That analysis included observations about the following matters:
   • The Court of Appeal was not persuaded that the references to a registered health practitioner in ss 193 and 196 provided any significant support for the first temporal limitation.[35]
   • Further, there are several textual or contextual and purposive indicators which tell against any such limitation. Most significantly, the terms of s 196(4). This empowers a tribunal to make an order relating to a person who does not hold registration (for example, disqualifying them from applying for registration for a specified period). The Court of Appeal said that 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 at the time of referral.[36]
   • Another textual or contextual indication of this broader intention is found in the s 35(1)(i) description of the functions of national boards. This includes referring matters about health practitioners who 'are or were registered' to the Tribunal.
   • The Court of Appeal did not agree with the submission that the existence of (the old) s 138 and s 139 was of significance in providing support for the first temporal limitation. It said they are merely 'deeming' provisions.
   • Nor was much support to be derived from the differing use of the terms 'person' and 'registered medical practitioner' in various places within the National Law.
   • Finally, the Court of Appeal agreed with the Boards' submission that the first temporal limitation ran contrary to the protective purpose the National Law. In particular, it would allow practitioners to control the scope of the Boards' power to refer matters to tribunals and tribunals' jurisdiction to determine them (and impose sanctions). That is, a practitioner could avoid this by discontinuing their registration. This would tend to undermine the effectiveness of the protection afforded to the public.[37]
3. The conclusion expressed by the Court of Appeal as to the first temporal limitation was:[38]

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.

1. As noted, however, the Court of Appeal did endorse the second temporal limitation identified by the President. That is, that the behaviour or conduct relied upon as grounding a complaint of professional misconduct must occur while the person was a registered health practitioner.
2. In this regard, its reasoning addressed the following matters:
   • Once again, it accepted there is no clear textual basis for the limitation in s 193 or s 196.[39] It said:

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.

• In this regard, the Court of Appeal referred first to s 193(1)(a)(ii). This requires a Board to refer a matter to the Tribunal if it forms the belief that a registration was improperly obtained by reason of false or misleading information. It said where a practitioner bases their application for registration on false statements, this plainly comprises behaviour or conduct that occurred prior to the practitioner achieving the status of registration. The Court of Appeal noted that while s 193(1)(a)(ii) did not directly address the question of whether the first limb of s 193(1)(a) (namely s 193(1)(a)(i)), encompasses behaviour that occurred prior to registration, it was contextually relevant to the interpretation of that first limb.[40]
• The Court of Appeal then turned to that first limb: s 193(1)(a)(i). It noted the Board's submission that its natural meaning encompasses a referral based on behaviour or conduct that occurred prior to the practitioner achieving registration. It noted the submissions that logically, when considering the possibility that professional misconduct or unprofessional conduct has occurred, and whether an applicant is fit and proper or suitable to hold registration, it would be artificial not to have regard to past criminal behaviour.[41]
• Then, in a key passage relied on by Dr Gerstman, at paragraphs [72] and [73], it said:

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'.

• The Court of Appeal then went on at paragraphs [74]-[77] to state that it did not attach much weight to the submission that the second temporal limitation would narrow the reach of the National Law, by preventing referrals and hearings in relation to pre-registration conduct. It expressed the view that such conduct could be satisfactorily addressed through the provisions governing applications for registration and renewal. It rejected the Boards' submissions to the contrary.

Answers given by the Court of Appeal to the questions before it

1. The Court of Appeal then proceeded to provide answers to the formal questions asked in each of the Jackson and Smith proceedings.
2. In Jackson, the question for determination 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?

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.

1. In Smith, the question for determination 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?

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.

1. Dr Gerstman contends that in the light of the Jackson & Smith decision, XOT, and the cases it refers to, and follows, must be regarded as incorrect.
2. In summary, the following arguments are made in support of this contention:
   • 'Section 35(1) of the National Law does not confer jurisdiction upon the Tribunal, but rather describes the functions of the Board, including (per s 35(1)(i)) making a referral about a health practitioner to a responsible tribunal. Similarly, section 193(1)(a) does not, by the use of the word "has" operate to confer jurisdiction where none otherwise exists.'[42]
   • 'Insofar as the decision of XOT at [56] refers to an "absurd outcome" arising from purported conduct being "beyond the reach of the regulatory carrying out its protective functions", having regard to the decision of [Jackson & Smith] this categorisation is incorrect.'[43]
   • 'The recent amendments to the Part 8 of the National Law in May 2023 [see below], create a wholly new scheme allowing for the receipt and referral of notifications, which did not exist at the time of the December 2021 referral. These amendments to the National Law do not have retrospective effect and no regard need to be had to the explanatory memorandum for the construction of the provisions in place at the time of Dr Gerstman's referral in December 2021. It is clear from the decision of Jackson Smith that there is no uncertainty in the construction of these provisions that requires recourse to these extraneous materials.'[44]
   • 'From its development through to its implementation the National Law can be seen to be a reflection of a carefully planned and highly thought out legislative scheme undertaken at the very highest levels of government providing for a transition from a multitude of pre-existing State regulatory regimes to a single national regime.'[45]
   • In that regard, specific transitional provisions were included when the National Law was enacted. These are set out at s 288 and s 289. They deal, respectively, with notifications which, on the commencement day, had been received, but not yet commenced to be acted upon, or had only partially been acted upon. These were taken to be notifications made under the National Law.[46]
   • Additionally, provision was made for notifications yet to be made concerning conduct prior to the commencement of the National Law. This was done by way of regulation 30 to the National Law Regulations, covering the five-year period to 30 June 2015. Again, the contact was to be dealt with as if the practitioner was registered under the National Law.[47]
   • 'Upon the expiration of the National Law Regulation, the only continuing jurisdiction under the National for conduct that did not take place during a period of a registered medical practitioner holding registration under the National Law arose by ss 138 and 139.'[48] The submission correctly stated that neither of these applied to Dr Gerstman. Section 138 concerned behaviour of a practitioner while registered under the National Law, where they are no longer so registered. Section 139 concerned behaviour of a practitioner while registered under corresponding prior Act, who was never registered under the National Law. In both cases, the National Law was to be applied.
   • In summary, none of the above transitional provisions or specific provisions applied so as to confer jurisdiction in relation to alleged pre-2010 conduct by Dr Gerstman.
   • Turning to the application of the provisions concerning notification, investigation, and the bringing of proceedings at VCAT, it was submitted that in the light of the reasoning of the Court of Appeal in Jackson & Smith, and the answers given to the questions posed, XOT, and the decisions on which it relies are incorrectly decided.
   • In particular, reliance was placed on the passage at [72] and [73] of the Court of Appeal's decision (quoted above) and also paragraphs [74]-[77] (described above).
3. In written submissions and in oral argument, Dr Gerstman's position was that the decision in Jackson & Smith having been handed down on 20 March 2025, it simply could not be ignored. It was contended, in effect, that the transitional provisions in s 288 and s 289, the now expired regulation 30 and the former s 138 and s 139 s in effect, comprised a code setting out in full, the arrangements as to when Boards and Tribunals had power to deal with pre-2010 conduct, and when they did not, and that should be adhered to.
4. The question arises as to the apparently anomalous effect of Dr Gerstman's postulated interpretation, whereby, faced with a continuum of alleged improper conduct from 1990 to 2018, the Board only had power to investigate and refer conduct alleged to have occurred after 2010. The response given by Dr Gerstman's counsel was simply that that is what the legislature had determined.
5. The same response was given in relation to the apparently anomalous situation whereby, on Dr Gerstman's postulated interpretation, complaints concerning pre-2010 conduct, received after 1 July 2015 but before 15 May 2023, could not validly be dealt with.

1. Underlying the Board's contentions is the anomalous position which it says arises if the arguments by Dr Gerstman were accepted. That is, in relation to notifications concerning pre-2010 conduct made after 1 July 2015 but before 15 May 2023, there would be a 'black hole' - there would be no jurisdiction to deal with these.
2. Thus, it pointed out, (assuming the new s 138 only operates prospectively) if one took the example of two practitioners who had engaged in the same heinous activity before 2010, where the notification concerning one was made in April 2023, and the other in June 2023, the Board and Tribunal would only have power to deal with the second, but not the first.
3. The Board submits that, properly understood, the ratio of Jackson & Smith is not applicable to the circumstances of Dr Gerstman. It says the ratio of the Court of Appeal's decision relates to circumstances where a practitioner is alleged to have engaged in conduct prior to 2010, but had not been registered at all prior to 2010 (which is not Dr Gerstman's situation).
4. The Board says that decision does not apply as a binding precedent in circumstances where Dr Gerstman was, during the whole of the period when the conduct the subject of the 15 complaints allegedly occurred, registered under either the National Law, or one of the applicable corresponding prior Acts regulating medical practitioners.
5. Further, in all cases, in contrast to the circumstances of Jackson & Smith, the complaints here were made by his patients, who had raised issues about his conduct while engaged in their clinical care.
6. Secondly, and more broadly, the Board says, the correct interpretation of the relevant provisions of the National Law is that the Tribunal does have jurisdiction to deal with pre-2010 conduct in any event. This is for the reasons stated in XOT and earlier decisions of various Australian Tribunals which were referred to, and followed, in that decision.
7. The Board provided copies of authorities of High Court and the Victorian Court of Appeal, and a text, which it submitted reinforced the reasoning in XOT. That is, that the effect that the provisions of the National Law are either permissibly retrospective, or not retrospective in the true sense. They are:
   • Minogue v State of Victoria [2018] HCA 17 (Minogue) at [18]-[24] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ, at [93] per Gageler J and [101]-[111], per Gordon J.
   • Stephens v R [2022] HCA 31; (2022) 273 CLR 635, at [29[]-[36] (Stephens) per Keane, Gordon, Edelman and Gleeson JJ.
   • Yarra City Council v Metropolitan Fire and Emergency Services Board and Ors [2017] VSCA 194 at [179]- [220], (Yarra) especially at [218]-[219], per Warren CJ, Tate and Osborn JJ.
   • Herzfeld and Prince, Interpretation (third edition, 2024 Thompson Reuters).
8. The Board also submits that the valid operation of the National Law in relation to alleged pre-2010 conduct is confirmed by the new version of s 138 which came into operation on 15 May 2023.
9. In support of this contention, the Board referred first to the decision in Minogue. In that case, the High Court upheld the effectiveness of a 'declaratory' provision which was enacted '[t]o avoid doubt' as to the operation of a provision in place relating to the grant of parole. This 'declaratory' provision was held to apply from the time of the commencement of the earlier provision. It did so without having retrospective effect.[49]
10. It says the conclusion that the Tribunal has jurisdiction here is not precluded by the decision in Jackson & Smith, because considerations relevant to Dr Gerstman's situation were not argued in the Court of Appeal, and more significantly, not dealt with at all in its decision.
11. It also argues that the outcome in XOT and the decisions it followed, is bolstered by the finding made by the Victorian Court of Appeal in Medical Board of Australia v Kemp.[50] This emphasised that regulatory proceedings such as the present, are 'not determinative of private rights'.
12. That case concerned the question whether s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) applied in a VCAT disciplinary proceeding against a medical practitioner. Niall JA (as he then was), with whom Maxwell P and Tate JA agreed, said:[51]

I have come to the conclusion that, in hearing and determining a matter referred to it by the Board, VCAT is not involved in a process that represents a curial adjudication of private rights. That is because:

(m) the VCAT proceeding is regulatory in nature, and serves a public purpose by enforcing standards applicable to health practitioners;

(n) the proceeding is not a dispute inter partes. VCAT is hearing a matter referred to it for determination by a regulatory body that performs a public function and has no private interest in the outcome of the proceeding;

(o) relatedly, the outcome of the proceeding is not determinative of private rights. The right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than the conferral of a private right; and

(p) the rules of evidence, and the practices and procedures that apply in courts, have no application (except to the extent that they are adopted by VCAT).

First question - What is the ratio decidendi of the Court of Appeal's decision?

1. For Dr Gerstman it was simply submitted that the answers to the questions provided at the conclusion of the Court of Appeal's judgement comprise the ratio in each case.
2. The Board, on the other hand, submitted that on a proper analysis of the Court of Appeal's reasoning, and the wording of its decision, no distinction was being made between conduct while registered under the National Law and conduct while registered under a corresponding prior law. That is, on the face of the reasoning in the Court of Appeal's decision, those two things were treated as being equivalent. The Board argued that the significant thing for conferral of jurisdiction is whether the practitioner was subject to the obligations of registration as a health professional at the time the conduct in question occurred.
3. For Dr Gerstman, that was the case. He was registered under the applicable Acts regulating medical practitioners in force from time to time, for the whole of the period during which the offending conduct is alleged to have occurred, that is, 1990 to 2018.
4. With regard to Mr Jackson, it is clear there was no possibility of him having been registered under a corresponding prior Act. This was because paramedics only came to be included as a profession subject to regulation under the National Law in 2018/2019.
5. With regard to Mr Smith, the Court of Appeal's decision does not mention that he was in fact registered under the corresponding prior Act when the conduct occurred. In my view, it cannot be the case that in order to identify the ratio of a decision, one must consult material outside the decision itself.
6. A person reading the decision would have no basis to assume anything other than that the alleged sexualised interactions with a child occurred during a time when Mr Smith was not registered at all.
7. In my view, the ratio of the Court of Appeal's decision must reflect that circumstance.
8. Consequently, the scope of the precedent which Jackson & Smith represents is correspondingly confined.
9. In this regard, I do not accept Dr Gerstman's submissions relating to the effect of the two key paragraphs of the Court of Appeal's decision relied upon by Dr Gerstman, [72] and [73], (quoted above at [73]).
10. In my view, properly construed, paragraph [72] does not confine the reasoning to 'a period of registration' under the National Law, as opposed to a period of registration under a corresponding prior Act regulating health practitioners.
11. Similarly, in paragraph [73], the reasoning relating to 'behaviour while registered' in reference to the former s 138 and s 139, is properly construed as including registration under a corresponding prior Act. In my view, the second sentence of paragraph [73] makes this clear.
12. I also note that the way in which the Court of Appeal expressed itself in those paragraphs, and elsewhere in its decision, allows for some nuance in the application of its reasoning to factual situations which differ from the circumstances as described by it relating to Mr Jackson and Mr Smith. It acknowledged in paragraph [72] that the Boards' submissions with regard to conduct prior to registration being relevant to suitability to practise had 'some force'.
13. I note the submissions by the Board in this case in relation to the Court of Appeal's conclusion that it was satisfied alleged conduct prior to registration could be satisfactorily dealt with through the provisions governing registration and renewal. In oral argument, the Board pointed to considerations not mentioned in the Court of Appeal's analysis, which it suggested do in fact render consideration of such prior conduct through the registration process problematic. The Board noted that in the registration context (under Part 7 of the National Law) the power to conduct investigations (which is in Part 8) is not applicable.
14. The Board said in argument that it might perhaps be practicable for a cut and dried prior criminal finding against a practitioner to be dealt with as part of the registration process. But the reality is that under the current legislation, which requires serious matters to be referred to the relevant tribunal, the boards are not equipped to conduct contested hearings where serious allegations are in issue. While boards did conduct contested hearings in disciplinary allegations under legislation enacted prior to 2007, changes which were then adopted with the national regime, were based on the principle that serious allegations should be referred for determination by tribunals, with the board acting as prosecutor. Further, dealing with serious allegations in a registration context can raise issues of fairness to the accused practitioner, with regard to the application of the principle of penalty privilege.[52]
15. I simply note these considerations as being generally supportive of the Board's submissions to the effect that the Court of Appeal's decision not be accorded broader application than the proper application of the doctrine of precedent requires.
16. Additionally, it is clear that there is a qualitative difference between Dr Gerstman's circumstances, and those covered by the ratio of the Court of Appeal's decision, with regard to how closely connected the alleged conduct is to practice. All 15 allegations against Dr Gerstman relate to conduct involving patients as alleged victims, in the clinical setting. The alleged conduct the subject of the ratio of the Court of Appeal's decision was completely outside the clinical setting (Smith), and in the case of Mr Jackson, involved a paramedicine colleague, rather than a patient.
17. Finally, I note the anomalous consequences, described above, which would follow if Dr Gerstman's contention as to the effect of the Court of Appeal's decision was accepted. This is a significant consideration. These consequences were not denied in argument for Dr Gerstman. They would undermine the National Law's protective purpose, and in my view, in the absence of specific consideration of the implications of this by the Court of Appeal, it would be wrong to accord its decision such sweeping impact.
18. I find that the ratio of the Court of Appeal's decision is not such as to require the conclusion that the Tribunal lacks jurisdiction in relation to the pre-2010 allegations against Dr Gerstman.

Second question - Have XOT, and the earlier decisions it followed, been overturned?

1. I now turn to the broader contention put by the Board. This is that the correct interpretation of the relevant provisions of the National Law is that the Tribunal does have jurisdiction to deal with pre-2010 conduct in any event. This is for the reasons stated in XOT and earlier decisions of various Australian Tribunals which were referred to, and followed, in that decision.
2. The Board says the conclusion that the Tribunal has jurisdiction here is not precluded by the decision in Jackson & Smith, because various relevant considerations which are vital to that analysis, were not argued in the Court of Appeal, and not considered in its decision.
3. Dr Gerstman's position, in effect, is that despite this, the Court of Appeal's decision must nevertheless be regarded as having overturned XOT, and the decisions it followed.
4. As noted above, it was common ground between the parties before the Court of Appeal that the National Law in its pre-May 2023 form applied in the Jackson & Smith case. And as noted, the Court of Appeal did not deal with:
   • The Board's contention here that the true effect of the May 2023 Amendments (and in particular, the new s 138) was, relevantly, to clarify the law as it stood prior to that, in that it served to confirm that Boards and Tribunals had power to act concerning conduct alleged to have been engaged in under corresponding prior Acts.
   • The issues of retrospectivity and of future operation based on past events which were the basis for XOT, and the decisions it followed.
   • The related question of what followed the sunsetting of regulation 30.
   • The impact of the suite of transitional type provisions referred to in Mr Gerstman's argument (at [80]).
5. It would be difficult to conclude that XOT, and the decisions which it follows, have been overturned by the Court of Appeal, in circumstances where neither those cases themselves, nor the issues considered in those decisions, were dealt with by the Court of Appeal at all.
6. With regard to the authorities of Minogue, Stephens and Yarra, and in the extract from Herzfeld and Prince, relied on by the Board, I agree these support the conclusions concerning the issue of retrospectivity in XOT, and the referenced prior decisions.
7. In Stephens, the High Court said:

Shorn of difficult-to-draw distinctions and difficult-to-apply nomenclature, the underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations. As H L A Hart explained, 'the reason for regarding retrospective law-making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts'.

1. It could hardly be said that a practitioner who has allegedly engaged in sexualised conduct in clinical consultations prior to 2010 had a justifiable expectation that it would not be regarded as amenable to disciplinary action.
2. Herzfeld and Prince refers to two categories of legislation which have been described in legal analysis. First, legislation which deems the law at a time in the past to be different from what it in fact was at that time. This is 'true' retrospective legislation. It has been referred to as 'retroactive' legislation.
3. The text goes on to describe the second category:

However, the word 'retrospective' also has an 'extended meaning'. That is to describe a law which alters or interferes with rights and duties defined by reference to events prior to its enactment. It has been said that the use of the word 'retrospective' in this sense is inaccurate and misleading. But it is a firmly established usage.

1. This is the distinction which was referred to in XOT at [48] and [60]-[64].
2. The text goes on, at [9.540], by way of summary:

The presumption is both against giving legislation an operation that is retrospective in the true sense (retroactive) as well as against giving legislation an operation that is retrospective in the extended sense (altering or interfering with rights and duties defined by reference to events prior to its enactment).The distinction between retrospectivity in the true sense, ie retroactivity, and retrospectivity in the extended sense is thus often not clearly maintained and the presumption is applied indiscriminately to both. Indeed, if, as has been said, retroactivity is rare, the presumption is perhaps more commonly invoked when applied to laws which are retrospective only in the extended sense.

As a majority of the High Court recently said in Stephens v The Queen [2022] HCA 31; (2022) 273 CLR 635:394:

These debates are not concerned with matters of principle. The distinctions between retrospective and retroactive laws are "terminological, not conceptual". However described, both are capable of defeating reasonable expectations concerning existing rights, although retroactive laws will generally be more pronounced in this effect. These distinctions should not distract from the underlying principle ...

1. I agree it is appropriate to consider the extent to which the postulated application of s 196 of the National Law to pre-2010 conduct would defeat reasonable expectations concerning existing rights (per Stephens) or would unfairly or unjustly impact on a practitioner (per World Best Holdings). In my view, it is clear it would do neither of these things.
2. In this regard, the above passage from Kemp also serves to emphasise the distinction between the criminal context and the professional disciplinary context. While there is some analogy between these, it is not perfect. Professional disciplinary proceedings are sui generis (in a class of their own.).[53] Analysis of questions of retrospectivity will be impacted where the issue of statutory interpretation arises in a criminal justice context, or where the liberty of the subject is in issue. Neither is the case here.
3. With regard to the suggestion that s 138 has declaratory effect, and the invocation of Minogue in support of that proposition, Dr Gerstman correctly noted that the declaratory intent was said to be expressed in extraneous material, namely, the Explanatory Notes. This was in contrast to Minogue, where that intent was expressed in the text of the amending provision itself.
4. That is correct and raises the question of whether resort needs to be had to the extraneous materials. Here, Dr Gerstman submitted it was not, as the effect of the regime under the National Law for dealing with 'latent' notifications, investigations and possible referrals, was clear.[54]
5. In my view, that is not the case. The expiry of regulation 30 gave rise to a situation in which an argument could be made that Boards and Tribunals no longer had jurisdiction to deal with pre-2010 conduct.
6. It was argued for Dr Gerstman that this was a conscious choice by the drafters of the legislation: in effect, complainants were given five years to make their complaints, and after that time, they were shut off from being able to do so.
7. As the Board submitted in response, correctly in my view, this very much flies in the face of the protective purpose of the National Law. It is accepted that there can be many reasons why complainants do not come forward promptly after conduct is engaged in. For example, there is the power imbalance between practitioners and patients, and a dependency on the practitioner. Some patients are highly vulnerable, and others (for example, young patients) only later become aware that the conduct they experienced at the hands of a practitioner was wrong.
8. For these reasons, in my view, it is appropriate to have regard to extraneous materials in interpreting the new s 138. And clearly, the Explanatory Notes quoted above do confirm the intention to enable Boards and Tribunals to deal with conduct prior to registration, and, a fortiori, with conduct while registered under a corresponding prior Act.
9. I find that the new s 138 is confirmatory of the position which pertained prior to its enactment, as described in XOT and the decisions it followed, such that the Tribunal does have jurisdiction to deal with the allegations made concerning pre-2010 conduct by Dr Gerstman.
10. For these reasons, I find that XOT and the decisions it followed have not been overturned by Jackson & Smith, and that the analysis underlying those decisions remains applicable. This conclusion is bolstered by the effect of the new s 138.

1. Accordingly, I find the Tribunal does have jurisdiction in relation to pre-2010 conduct alleged against Dr Gerstman. The hearing should continue, in relation to the16 allegations on foot against him.

[1] As such, it is determined by the presiding legal member, under s 107 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[2] At the commencement of the hearing, in response to an application made by Dr Gerstman (concerning eight of the complainants), a ruling was made by the Presiding Member that the allegations concerning two of the complainants would be summarily dismissed. This was on the basis that those patients would not be attending to give evidence (one of them being deceased), and it would be manifestly unfair to Dr Gerstman for them to proceed in those circumstances. So, the number of complaints being considered by the Tribunal was narrowed down to 16.

[3] [2025] SASCA 25.

[4] The Board identified these patients and allegations at paragraph [14] of its written submissions, and no issue was taken by Dr Gerstman as to the patients and allegations identified by the Board. The jurisdictional point is not taken in relation to one particular patient, whose complaint concerned alleged conduct during consultations with Dr Gerstman in 1997-8 (who we refer to as Patient 15). This is because since the notification from Patient 15 was received later than the others, on 12 July 2023. (The complaints by patients 1-14 were received between May 2013 and February 2020). In relation to Patient 15, Dr Gerstman concedes that the version of s 138 of the National Law, as amended with effect from 15 May 2023, applies, and that this does enable the Tribunal to hear and determine those allegations concerning consultations in 1997-8.

[5] See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; CLR 89 at [135].

[6] This is a Latin phrase literally meaning 'the reason for deciding'. It is frequently, including in this decision, abbreviated to 'ratio'.

[7] [2022] VCAT 1223.

[8] It is noted, incidentally, that the surrender of Dr Gerstman's registration would, on his argument as to the effect of the new provisions in effect from 15 May 2023 (described below), apparently entail that he is now beyond the reach of the National Law in relation to pre-2010 conduct. His surrender of registration would preclude the expedient being adopted by the Board in the event its submissions here were rejected, of re-commencing an investigation into pre-2010 conduct, now. This would be because the new s 138 would not cover Dr Gerstman, nor, he argues, would the new s 139A (which is to similar effect to the old s 138).

[9] The text of this, and other relevant provisions of the National Law is set out below.

[10] This contained safeguards (in regulation 30(3)), requiring, in effect, that the notification could have been made, and that disciplinary proceedings of the same type could have been taken, under the earlier Act. These safeguards mitigated against any potential adverse impacts arising from retrospectivity.

[11] [2020] TAS HPT 2, per Chairperson A Clues (Thompson).

[12] [2021] WASAT 138, per Judge D R Parry, Mr J Mansveld and Dr D Pearson (Hamilton).

[13] [2021] WASAT 161, per Judge D R Parry, Dr E Marillier and Ms KY Loh (Lagrange).

[14] [1989] NSWCA 222, unreported, Casebase BC 8901640; Kirby P, Priestly JA and Hope AJA (McBride).

[15] [2019] VCAT 467 (Ho).

[20] Pearce, Statutory Interpretation in Australia (9th ed). The relevant passage from this text is set out at [48] of XOT.

[21] [2005] NSWCA 261 at [43] and following; (2005) 63 NSWLR 557 at 570 and following; [2005] NSWCA 261; 223 ALR 346 at 357 and following (World Best Holdings). Reference is made to relevant aspects of this decision at [49]-[51] of XOT, and in particular, to Spigelman CJ's statement that the task is 'to determine the scope and degree of the unfairness or injustice tat is applicable in in the particular case' (at [59]).

[22] This was a Bill before the Queensland parliament, given that the scheme adopted for the National Law is for the other states to adopt the Health Practitioner Regulation National Law Act 2009 of the Queensland parliament.

[23] Noting that the 15th complaint, referred to above, was made on 12 July 2023, which was after the May 2023 Amendments came into effect.

1. [24] See further, s 32(1) that relevantly provides that a National Board has the powers necessary to enable it to exercise its functions. This would include referral to a responsible tribunal.

[25] Mr Jackson contended he was never registered, but Her Honour made a finding that Mr Jackson became registered on 22 May 2019.

[26] [2023] SACAT 66.

[28] The text in this, and the preceding paragraph, paraphrases the Court of Appeal's decision at [13] and [14].

[29] [1997] HCA 53; (1997) 191 CLR 85.

[30] [2004] HCA 14; (2004) 218 CLR 273, 280-281.

[31] [1997] HCA 53; (1997) 191 CLR 85, 112.

[32] Concerning the first temporal limitation, as noted above, Mr Smith was still registered at the time of the notification and referral to SACAT.

[33] Submissions for Dr Gerstman, at [35].

[34] Before the Court of Appeal, the Boards were jointly represented, by Mr Jacobi KC.

[42] Dr Gerstman's submissions at [7].

[50] [2018] VSCA 168 (Kemp).

[51] Ibid at [166]. Sub-paragraph numbering as per original.

[52] See Towie v Medical Practitioners Board of Victoria [2008] VSCA 157.

[53] Stirling v Legal Services Commissioner [2013] VSCA 374 at [66]- [67].

[54] Submissions for Dr Gerstman, at [45].