1. The Tribunal determines that the allegations dated 11 May 2021 against Dr XOT are properly brought under the Health Practitioner Regulation National Law (Victoria) Act 2009, and able to be dealt with by the Tribunal.

1. This is the determination of a preliminary jurisdictional question which has arisen in a disciplinary proceeding brought by the applicant (Board) against Dr XOT. This decision concerns whether the Health Practitioner National Law (National Law)[1] operates in relation to conduct which occurred between 1977 and 1986. That is obviously well before the commencement of the National Law, on 1 July 2010, or the two preceding enactments of 1994 and 2005, and indeed, well before the creation of VCAT in 1998.
2. Dr XOT was first registered as a medical practitioner on or about 15 December 1969. He remained registered and practised for almost 50 years, until 4 July 2019, when he surrendered his registration.
3. Between 1 July 1977 and 31 December 1986, Dr XOT committed a series of sexual assaults and acts of incest against his daughter. These came to light over 30 years later. On 2 July 2019, he was arrested by police, interviewed and charged (and two days later, surrendered his registration). A year after that, on 21 July 2020, he was convicted in the County Court of indecent assault and incest. He was sentenced to a total effective sentence of 16 years and 6 months' imprisonment. He will remain imprisoned until 2032 at the earliest (by which time he will be 85 years old).
4. The Tribunal has of course determined matters on many occasions since 1 July 2010 relating to practitioners who have engaged in professional misconduct over periods preceding, and overlapping with, the commencement of the National Law on 1 July 2010.
5. In relation to most such cases since 2010, a transitional provision has applied, namely, regulation 30 of the Health Practitioner Regulation National Law Regulation (statutory rule no 42/2010). This had the effect that for conduct which occurred during the operation of a corresponding Act prior to the National Law, the practitioner was to be dealt with as if they had been registered under the National Law. But this was subject to the provisos 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. Those provisos mitigated against any potential adverse impacts arising from retrospectivity. In practice, those provisos were invariably satisfied, since the type of conduct the subject of disciplinary proceedings was invariably conduct which could have been notified and prosecuted under earlier corresponding legislation for the registration and disciplining of practitioners.
6. Here, however, regulation 30 does not apply. It was a savings and transitional provision. As such, under s 305 of the National Law, it expired on 30 June 2015.
7. It appears that in the years since 2015, most of the cases concerning historical professional misconduct which have come before the Tribunal have been ones where regulation 30 has nevertheless continued to apply after 30 June 2015, because a notification had been received, and hence, the disciplinary process had commenced, before that date.[2]
8. But in this case, the notification against Dr XOT was received well after that date, on 2 July 2019.
9. In a number of cases concerning historical offending or professional misconduct, the allegations have been framed by reference to the recent court convictions.[3] Where those convictions occurred after 1 July 2010, that was found to be a sufficient basis for invoking the relevant tribunal's jurisdiction.
10. In this case though, the allegations allege professional conduct comprised by the actual indecent assaults between 1 July 1977 and 28 February 1981, and the acts of incest between 1 March 1981 and 31 December 1986.[4]
11. The Board contends that in cases such as this, where regulation 30 no longer has application, the Tribunal should simply apply s 35(1)(i) and s 193 of the National Law according to their terms.
12. Section 35(1)(i) provides that a function of the Board is:

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]

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]

1. The plain meaning of both these provisions is that they can apply to conduct which occurred before 1 July 2010. The Board's contention is that this is the correct interpretation, and that disciplinary proceedings may be brought against a practitioner in relation to past conduct, no matter how long ago it occurred, where it is alleged that 'the practitioner has behaved in a way that constitutes professional misconduct' (in the words of s 193). It is said this does not offend the rule against retrospectivity.
2. The Board relies on various authorities in support of that proposition (being authorities relating to both the regulation of health professionals under the National Law, and otherwise). It also contends that there is no unfairness to Dr XOT in adopting this approach.
3. I was told that there is no prior decision of VCAT which considers this question. However, it has been considered in the 2020 Tasmanian decision of Medical Board of Australia v Thompson [5]and in two 2021 Western Australian decisions: Pharmacy Board of Australia v Hamilton [6]and Medical Board of Australia v Lagrange[7].
4. In each of these three cases, the Tribunal found that even in the absence of regulation 30, the National Law applied, and that this did not offend the principle against retrospectivity.
5. Dr XOT is not participating in these proceedings. As noted, he is in prison. In mid-2021, he indicated he did not wish to have any further paperwork served on him, nor receive any further communication from the Board.
6. The Board provided written submissions in support of its contention that the National Law applies to Dr XOT's conduct, and that the principle against retrospectivity does not prevent this.
7. Upon analysis, I have come to the same view. As explained below, I accept most (but not all) of the Board's contentions.

Successive Acts governing the registration and conduct of medical practitioners

1. Since 1970, the sequence of Acts which have applied to the registration and conduct of medical practitioners, including Dr XOT, 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. (This has applied to Dr XOT until the present day.)
2. The conduct by Dr XOT the subject of the present allegations occurred between 1977 and 1986. That is, during the operation of the first of the four Acts listed above.

1. Chief Justice Dixon said in Maxwell v Murphy: [8]

The general rule of the common law is that a statute changing the law ought not unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

1. In considering whether the presumption against retrospectivity applies in this case concerning Dr XOT, I refer first to the three decisions of Australian tribunals which deal with the exact point raised here, in terms of the application of the National Law to pre-1 July 2010 conduct, namely, Thompson, Hamilton and Lagrange.

1. Dr Thompson engaged in certain conduct which the Board asserted amounted to professional misconduct, between November 1996 and March 1997. He was then, and remained at the time of the hearing, a registered health practitioner. The Board received a notification after 1 July 2015. Regulation 30 was not applicable, having lapsed.
2. In those circumstances, the Board submitted that there were two available interpretations: either the Tribunal should continue to hear complaints for prior behaviour applying the prior corresponding Act, or alternatively, it should apply the National Law to the prior behaviour.
3. The Tasmanian Health Practitioner Tribunal found that the second of these alternatives applied: the National Law was to be applied to the behaviour in 1996 - 1997.
4. The Tribunal also found that there was no longer power to bring the disciplinary proceeding under the prior corresponding Act (as the potentially applicable saving provision, cl 34 of Schedule 7 of the National Law, did not preserve the operation of that prior Act).[9]
5. The Tribunal applied the reasoning of the 1989 New South Wales Court of Appeal decision in Walton v McBride.[10] It also applied the 2019 VCAT decision of Dental Board of Australia v Ho.[11] I refer to both of these decisions in detail below.

1. Ms Hamilton was a pharmacist registered under the Pharmacy Act 1964 (WA) from 6 December 2000 to 17 October 2010. After that, she was registered under the National Law. Allegations were brought against her in or around 2019 in the State Administrative Tribunal of Western Australia. They alleged dispensing anabolic steroids on 586 occasions between 26 August 2008 and 30 April 2009.
2. The Pharmacy Board of Australia in that case had received a notification on 13 January 2015. As this was prior to the lapsing of regulation 30, the State Administrative Tribunal of Western Australia found that regulation 30 did apply in that case.[12]
3. However, the Tribunal went on to find that even if regulation 30 did not apply to Ms Hamilton, the National Law would nevertheless apply. This was on the basis that the text, context and purpose of the National Law all support the application of the National Law rather than the prior corresponding Act.[13] The presumption against retrospectivity did not operate to prevent that conclusion being reached there.
4. Additionally, the Tribunal said it was desirable for provisions of the National Law to be generally interpreted and applied in a consistent manner across the various responsible tribunals throughout Australia.[14] The decision in Hamilton was consistent with that in in Thompson, with both relying on the reasoning in McBride.

1. One of the allegations against Dr Lagrange related to sexual conduct on multiple occasions with a patient in the 1980s and 1990s. The notification of that conduct was given to the Board on 22 May 2018.
2. The State Administrative Tribunal of Western Australia, again chaired by Judge Parry, found, on the basis set out in Hamilton, that on its proper interpretation, s 35(1)(i) of the National Law (and also s 193) rebuts the presumption against retrospectivity in relation to alleged conduct by a registered health practitioner that occurred prior to the commencement of the National Law.[15]
3. Accordingly, Dr Lagrange's conduct was properly referred by the Board to that Tribunal under the National Law, and the case was properly determined under the National Law.

1. Allegations were made against Dr William Mc Bride concerning activities engaged in prior to 1 October 1987. On that day, amendments to the Medical Practitioners Act 1938 (NSW) came into effect. These replaced the formula 'misconduct in a professional respect' with the briefer phrase 'professional misconduct'. This arguably extended the concept beyond conduct embraced by the previous expression (although the differences did not purport to be drastic, since the word 'misconduct' remained).[16]
2. The Medical Tribunal of New South Wales determined some preliminary questions. These included whether the old formulation, or the new one, 'professional misconduct', applied.
3. The Tribunal decided that the new formulation applied. The matter went to the NSW Court of Appeal. It upheld the Tribunal's decision. In particular, it found that the principle against retrospectivity did not apply there.
4. Key parts of the McBride decision are set out, with appropriate commentary, in the following extract from paragraphs [39] - [57] of the decision in Thompson:
   1. In [McBride] the New South Wales Court of Appeal stated:

"The primary submission for Dr McBride...was that it would be contrary to principle for the Act to be construed to apply a new and arguably 'more stringent' criterion of 'professional misconduct' to conduct which preceded the amendments which introduced that criterion."[14][17]

1. The Court was urged by Dr McBride to find that in respect of the conduct before 1 October 1987:

"...the standard to be applied by the Tribunal in deciding whether he had been guilty of 'professional misconduct' was the standard which at that time obtained, and not any more stringent standard later adopted. Otherwise, it was argued, his rights and liabilities would be affected in a significant way by a change of the law. The amendments to the Act should not be so construed but should be given meaning which was prospective only and therefore avoided the attachment of new legal consequences of facts or events which occurred before the commencement of the amendments. Reliance was placed upon Maxwell v Murphy (1957) CLR 261, 267; Fisher v Hebburn Limited [1960] HCA 80; (1960) 105 CLR 188, 194 and Geraldton Building Co Pty Ltd v May [1906] ArgusLawRp 58; (1977) 13 ALR 17."[14]

1. This submission was rejected by the Court of Appeal for a number of reasons.
2. First, the Court acknowledged that whilst the determination of professional misconduct can have serious consequences for a medical practitioner, that is not the purpose of the Act. The purpose is to protect the public.

"It is that objective which must determine, where there is ambiguity, the construction to be given to the Act. It may be arguable that a construction should not be adopted which would have serious and deleterious consequences for a person affected, if some other construction is available. However, this does not necessarily follow if the purpose of the statute is the protection of the public from medical practitioners, found by the current standard, to be properly the subject of one of the many orders that can be made under the Act." [15]

1. The Court noted in that case the new legislation provided the Tribunal with a wide range of orders and sanctions (as is the case with the National Law).

"This wide range of provisions has been enacted for a purpose. It is to enable the Tribunal to fashion an order appropriate to the facts found including, where relevant, where the subject matter of the complaint relates to alleged 'professional misconduct'. It would be curious if, despite a need for the above supervisory arrangements designed for the protection of the public, Parliament were to countenance the continued practice of a person in need of such attention, simply because to so order would amount, as it is said, to the retrospective operation of a new standard. The wide range of orders available to the Tribunal emphasises the fact that the Act is designed for the protection of the public." [15]

44. Secondly, the Court held:

"Many cases draw a distinction which is pertinent to the present case. It is the distinction between legislation which has a retrospective operation and legislation which affixes present and future consequences to past events. Particularly in cases where present fitness to enjoy professional or trade privileges are concerned, it is not at all unusual, for amendments adopting more rigorous standards to apply to past conduct occurring before such standards were adopted." [17]

1. The Court of Appeal refers to a number of cases in support of this finding including Geschke v Del-Monte Home Furnishes Pty Ltd [1981] VicRp 80; [1981] VR 856. In that case Gobbo J at page 860 stated:

"...the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action. In one sense such legislation may appear to attach new consequences to past acts but I am of the opinion that the type of consequence envisaged in the judgment in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 was one where, for example, a new disability was created that prevented further enjoyment of an existing or accrued right. In no meaningful sense was the trader here the holder of an accrued right to trade without risk of future restraint based on past conduct...I am of the opinion therefore that the principle against retrospective operation of a statute has no application to the present case."

1. The Court applied these observations to the characterisation of the conduct of Dr McBride. The Court noted that 'professional misconduct' had always been wrongful in the case of a registered medical practitioner. "All that the successive statutory amendments have done has been to give new and arguably differing content to the meaning of the expression."[18]

47. Thirdly, the Court held:

"The Act must be given full force and effect according to its terms. It provides jurisdiction to the Tribunal relevantly, in respect of complaints made that a registered medical practitioner has been guilty of professional misconduct...That phrase is defined in the Act. Accordingly, on its face, the Act applies in respect of complaints now made and requires the Tribunal to determine those complaints by reference to the current definition. To disturb the ordinary interpretation of the Act, Dr McBride must invoke a presumption against 'retrospective operation'." [19]

1. The Court found that the presumption was inappropriate where the legislation evinces a contrary intention.
2. Finally, the Tasmanian Health Practitioner Tribunal in Thompson found that the saving provisions in Schedule 7, Part 6, s34 of the National Law do not preserve the operation of the now repealed MPR Act. It referred to the statement in McBride that:

"... the consequence of the arguments for Dr McBride would be that the repeal of the former provisions would remove any basis in the Tribunal for dealing with complaints about conduct that occurred before one October 1987. Given the purpose of the Act is the protection of the public, such an amnesty is not to be attributed to Parliament."

1. It agreed with the reasoning in McBride that as a result there was:

"a lacuna in respect of complaints not pending but relating to pre-amendment conduct. Such a gap in the legislation is not to be imputed to Parliament. It can be avoided entirely if the Act is interpreted as operating in its terms, attaching its consequences for the protection of the public to the conduct of the registered medical practitioner concerned, whether that conduct occurred before or after the amendments. There is no difficulty in so construing the Act. To do so is consistent with the achievement of its objects. It is consonant with long established legal authority dealing with analogous statutory provisions." [21].

1. Ho is different from the above four decisions in that the conduct took place while the practitioner (a dentist) was not registered. 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.[18]
2. In relation to purpose, the Tribunal said:

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.[19]

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.

1. In Statutory Interpretation in Australia (9th edition) Professor Pearce says:

Future Operation Based on Past Events

10.4

It is important when considering the question of retrospectivity to draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events. Jordan CJ contrasted these circumstances in Coleman v Shell Co of Australia Ltd [1943] NSWStRp 41; (1943) 45 SR (NSW) 27 at 31:

... as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

The Full Court of the Victorian Supreme Court put the matter succinctly in Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824:

[The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.

Numerous examples can be found of the courts applying this distinction. One of the most frequently cited (perhaps because of the nature of its facts) is Re a Solicitor's Clerk [1957] 1 WLR 1219. The clerk was convicted in 1953 on charges of larceny but no order could be made under the Solicitors Act 1941 (UK) as it then stood prohibiting him from being employed as a solicitor's clerk because he had not stolen from his employer or his employer's client. The Act was subsequently amended to allow such an order to be made in the case of any conviction for larceny. The clerk argued that to apply the amendment to him would be to give it retrospective operation.

This argument was rejected by the court on the ground that no retrospectivity was involved. The Act had future operation only, even if the conduct on which it depended had taken place in the past. Although the prohibition was based on a conviction that had occurred before the commencement of the Act, it operated in the future. On the other hand, the Act would have had retrospective operation if anything done before its commencement had been declared void or voidable or if a penalty had been inflicted for having carried out a particular function before the Act came into force.

An Australian case that reached a like conclusion in similar circumstances is La Macchia v Minister for Primary Industry [1986] FCA 452; (1986) 72 ALR 23. The holder of a fisherman's licence was convicted of an offence that at the time of conviction could not result in the cancellation of his licence. The relevant Act was subsequently amended to permit cancellation for such convictions. The Full Court of the Federal Court, citing Re a Solicitor's Clerk, upheld the validity of a cancellation based on the conviction before the Act was amended. Likewise, in Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856 a widening in the range of matters that constituted 'unfair trading' was held to catch conduct that had taken place prior to the amendment.

1. In the 2005 decision of the Court of Appeal in Attorney-General of New South Wales v World Best Holdings[20] Spigelman CJ said that in approaching the task of interpreting legislation, statutory provisions:

will only be given retrospective operation to the extent necessitated by the words of the statute, considered in their full context and in accordance with the legislative purpose, but no greater extent (see Reid v Reid [1886] UKLawRpCh 18; (1886) 31 ChD 402 at 408-9; Louri v Renard [1882] Ch 421).[21]

1. The main concern about adopting a retrospective operation is whether potential unfairness or injustice to the practitioner might result. In World Best Holdings Spigelman CJ considered a number of House of Lords decisions. He expressed agreement with the view of Stoughton LJ in Secretary of State for Social Security v Tunnicliffe[22] as follows:

His Lordship emphasised that matters of this character were to be determined by the application of a presumption that the legislature did not intend to act unjustly or unfairly and went on to reject any formulaic approach to the determination of the intention of Parliament with respect to the retrospectivity of a particular legislative scheme.[23]

1. Spigelman CJ went on to state that a court is required

to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply.[24]

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.[25]
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, 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, 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.
9. The Board also argued that the relevant provisions applied to procedure only, and hence were excluded from the operation of the presumption against retrospectivity. This argument sought to invoke the second limb of Dixon CJ's description of the principle in Maxwell v Murphy:

But given rights and liabilities fixed by reference to past matters, facts or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to he secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.

1. I have some doubt about whether the re-enactment of substantive provisions for disciplining practitioners can properly be classified as merely procedural. It is not necessary for me to determine that issue, however.
2. Finally, I refer to the Tribunal's jurisdiction to hear this matter. In my view, it necessarily follows as part of the above analysis and conclusion that the National Law reaches back to Dr XOT's conduct between 1977 and 1986, that the Tribunal is the body which has been given the power to conduct this disciplinary proceeding. Once again, s 35(1)(i) refers to Boards referring matters about health practitioners who are or were registered under this Law or a corresponding prior Act to 'responsible tribunals for participating jurisdictions'. And s 193(1) mandates referral to 'a responsible tribunal' where the Board reasonably believes the practitioner has behaved in a way that constitutes professional misconduct.[26] VCAT is declared to be the responsible tribunal by s 6 of the Health Practitioner Regulation National Law (Victoria) Act 2009.
3. Having determined that the allegations are properly brought under the National Law, and able to be dealt with by the Tribunal, the matter will now be listed for hearing to consider what findings and determinations should be made.

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

[2] Applying the saving provision in cl 34 of Schedule 7 of the National Law.

[3] For example, in Nursing and Midwifery Board v Burrows [2020] QCAT 164, Nursing and Midwifery Board of Australia v TGA [2021] VCAT 220 and Nursing and Midwifery Board of Australia v TFQ [2021] VCAT 1176.

[4] The allegations by the Board in their original form were based on the fact of Dr XOT being convicted in the County Court on 21 July 2020. But they were subsequently amended to allege the actual conduct itself, between 1977 and 1986.

[5] [2020] TAS HPT 2, per Chairperson A Clues (Thompson).

[6] [2021] WASAT 138, per Judge D R Parry, Mr J Mansveld and Dr D Pearson (Hamilton).

[7] [2021] WASAT 161, per Judge D R Parry, Dr E Marillier and Ms KY Loh (Lagrange).

[8] [1957] HCA 7; (1957) 96 CLR 261 at 267.

[10] [1989] NSWCA 222, unreported, Casebase BC 8901640; Kirby P, Priestly JA and Hope AJA (McBride).

[11] [2019] VCAT 467 (Ho).

[12] This was on the basis of the same reasoning as in Medical Board of Australia v Koniuszko [2016] VCAT 492 and Dental Board of Australia v Abdullah [2016] VCAT 19. That is, applying the savings provision in cl 34 of Schedule 7 to the National Law.

[17] The paragraph numbers in the McBride decision referred to in Thompson are those in the Casebase BC 8901640 report.

[20] [2005] NSWCA 261 at [43] and following; [2005] NSWCA 261; (2005) 63 NSWLR 557 at 570 and following; [2005] NSWCA 261; 223 ALR 346 at 357 and following.

[22] [1991] 2 All ER 712 at 724.

[23] (2005) 63 NSWLR 5576 at 570 [57].

[26] This makes it unnecessary to consider s 138, which deems the disciplinary provisions applicable to practitioners formerly registered under the National Law. In any event, if s 138 was considered, in my view, it should properly be interpreted as applying to pre-1 July 2010 conduct, as well as conduct after that date.