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The respondent 3. At the time of the proceedings the respondent was 30 years old. She obtained a Diploma of Nursing in 2016 from the Canberra Institute of Technology and first obtained general registration as an Enrolled Nurse (Division 2) (EN) on 1 February 2017. She has not been registered as an EN since 1 June 2022, having failed to renew her registration.

4. On 1 April 2022, the respondent contacted ACT Police Operations, stating that she was in possession of child abuse material that was contained within mobile phone messages and on an external hard drive. That day, ACT Police attended the respondent’s residence, seizing a mobile phone and an external hard drive. The respondent informed police that the child abuse material was sent to her by her then partner (the co-offender), whom she met on a dating application and that she had engaged in conversations with on WhatsApp about having sex with children.

5. The respondent said that the hard drive was given to her by the co-accused and that she called the police because, during sex, the co-offender said that “we should have a baby so that we can fuck it”. 6. When inspecting the seized material, police located:

(a) 68 images of child abuse material on the respondent’s mobile phone, including some material sent by the respondent to the co-offender on 12 and 13 October 2021; and (b) 2146 videos and images of child abuse material on the external hard drive.

7. On 1 April 2022, the respondent was arrested and charged with three criminal offences: (a) possessing child exploitation material, contrary to s 65(1) of the Crimes Act 1900 (ACT) (case CC2022/3169) (Charge 1); and (b) using a carriage service to distribute child abuse material, contrary to s 474.22A(1) of the Code Criminal Act 1995 (Cth) (Criminal Code Cth) (case CC2022/3170) (Charge 2).

8. On 16 June 2022, the respondent was charged with using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth) (case CC2022/5824) (Charge 3).

9. On 7 November 2022, the respondent entered pleas of guilty to the charges.

10. On 21 May 2024, the respondent was convicted of the charges, and was sentenced as follows: (a) Charge 1 – eight months’ imprisonment reduced to four months and 23 days on account of the respondent’s guilty plea and assistance to authorities, commencing on 21 May 2024 and expiring on 13 October 2024; (b) Charge 2 – 15 months’ imprisonment reduced to nine months on account of the respondent’s guilty plea and assistance to authorities, commencing on 21 May 2024 and expiring on 20 February 2025; (c) Charge 3 – 12 months’ imprisonment reduced to seven months and six days on account of the respondent’s guilty plea and assistance to authorities, commencing on 15 January 2025 and expiring on 20 August 2025.

11. The agreed facts filed in the Supreme Court proceedings (agreed facts) provided descriptions of a sample of the material located across the devices. The child abuse materials included highly depraved material depicting the penetrative rape and torture of very young children. The agreed facts noted that a review of the materials showed that the child victims depicted were largely between one and ten years of age. Over 1,000 individual child victims were depicted. With respect to Charge 1, the sexual activity portrayed in the materials included sexual penetration of children as young as three years as well as abhorrent depictions of cruelty and torture of very young children. For Charge 2, all the materials were Category 1, meaning they depicted real pre-pubescent children. I note that this material was not before the Tribunal but I accept in full the description as set out in the agreed facts.

Procedural steps

12. The uncontested chronology before the Tribunal is as follows.

13. On 26 April 2022, the Australian Health Practitioner Regulation Agency (APHRA) received a confidential notification stating that the respondent has “outstanding matters in court”, had longstanding substance abuse issues, and the notifier wanted to ensure the respondent raised the charges upon completion of her practitioner renewal. The nature of the outstanding court matters was not disclosed in the notification and the Board made enquiries.

14. On 22 July 2022, APHRA informed the respondent of the notification and of its investigation into her conduct.

15. In a telephone conversation between the respondent and an APHRA Regulatory Advisor on 4 August 2022, the respondent indicated that she did not renew her registration due to the criminal Charges (which were pending at the time) and the requirement to declare the charges if re-registering.

16. On 25 February 2025, the Board referred conduct of the respondent to the ACT Civil and Administrative Tribunal (Tribunal) pursuant to s 193 of the Health Practitioner Regulation National Law (ACT) (National Law) by filing an Application for Disciplinary Action (Application).

17. In the application, the Board set out two allegations which comprise its referral. The allegations contend, in summary, that the respondent behaved in a way that constituted professional misconduct by: (a) engaging in conduct that resulted in being convicted by the Supreme Court of the Australian Capital Territory (ACT Supreme Court) of three criminal charges relating to the possession of child abuse material (ground 1); and (b) failing to notify the Board within seven days of being charged with criminal offences carrying a maximum term of imprisonment of 12 months or more (ground 2).

18. The applicant submitted that the Tribunal should: (a) find that the facts alleged are proven to the relevant standard; (b) make findings that the respondent engaged in professional misconduct in respect of the conduct underpinning the allegations in ground 1, and unprofessional conduct in respect of ground 2.

Evidence

19. The Board’s bundle of documents titled “Book of Documents” (the Tribunal Book or TB). The book included: the Board’s application, professional codes and guidelines, and the documents from the AFP and ACT Supreme Court relied upon by AHPRA in its investigation and correspondence with the respondent.

20. The Board also relied on the affidavit of Ms Freda Taah, a solicitor employed by the Australian Government Solicitor, dated 27 August 2025 filed in support of the Board’s application for substituted service orders. The affidavit largely dealt with attempts by the Board to contact the respondent, which I will come to shortly.

21. The respondent made no submissions, filed no evidence and did not otherwise participate in the proceedings. Is the respondent aware of the proceedings?

22. A preliminary question before the Tribunal was whether it should proceed to determine this matter in circumstances where it could not be certain that the respondent has been served with a copy of the application and/or the listing notice.

23. The respondent had limited engagement with the APHRA during its investigation, or with the Board afterwards.

24. The only incident of contact between the Board and the respondent appears to have been a telephone conversation following a letter notifying the respondent that a notification had been received and referred for investigation. On 4 August 2022, an AHPRA Regulatory Advisor had a telephone conversation with the respondent where the respondent indicated that she “went to court on Thursday last week and officially pleaded guilty”.

25. On 30 July 2025, the Tribunal made substituted service orders pursuant to r 25 of the ACT Civil and Administrative Tribunal Procedures Rules. The Tribunal was satisfied it was impractical or not possible for the application to be personally served on the respondent, and that sending the application to the respondent at the last address where she was known to have stayed, and emailing the application to her at her last known email address, were reasonably likely to bring the application to her attention.

26. On 8 August 2025, the application and other documents were emailed to the respondent by the Board. An email notification was received by the Board which stated delivery of the email was complete but “no delivery notification was sent by the destination server”. Also on 8 August 2025, the application and other documents were sent via express post to the address identified in the Tribunal’s orders of 30 July 2025. A tracking search conducted on the Australia Post website indicated that the package was delivered on 15 August 2025.

27. In addition, other documents have been sent to the respondent as follows: (a) On 3 September 2025, a letter enclosing a copy of Tribunal Orders dated 27 August 2025, along with copy of a Listing Notice for the final hearing in this matter, were emailed to the respondent. An email notification was received which stated delivery of the email was complete but “no delivery notification was sent by the destination server”. On the same day, the documents were sent to the respondent by express post. (b) On 24 September 2025, a letter along with a copy of the TB were emailed to the respondent. An email notification was received which stated delivery of the email was complete but “no delivery notification was sent by the destination server”. On the same day, the letter and TB were sent to the respondent by Express Post.

28. As at the hearing date, none of the correspondence and documents sent to the respondent by post had been returned.

29. The starting point is that the substituted service orders, as made, have been complied with.

30. The Tribunal notes that in the TB are copies of various police reports mentioning the respondent, many post-dating the conviction and some quite recent. It is not necessary to go into great detail about the content of these reports but suffice to say that the respondent is suffering a period of unwellness, contributed to by substance abuse. To put no gloss on the situation, she has spiralled since her conviction, and it may be that attending to these proceedings is not at the forefront of her mind. There is, however, nothing to suggest that the respondent was unable to receive email, or unable to respond to mail or answer her phone such that these proceedings should be further delayed or stayed.

31. Further, this is a disciplinary proceeding, a purpose of which is the protection of the public. While acknowledging the many challenges that face the respondent at present, the Tribunal is wary of permitting the forestalment of proceedings due to avoidant behaviour by a respondent, even where there is evidence that the respondent is unwell. To the extent that the Tribunal had any discretion to adjourn the proceedings to further attempt service, I was not prepared to exercise it. An applicant must be given the opportunity to present their case to the tribunal, but they cannot be compelled to take it. I was satisfied she had been given such an opportunity.

32. Accordingly, having regard to the totality of the evidence, the Tribunal is satisfied that the Board has complied with the substituted service orders made by the Tribunal on 30 July 2025 and that reasonable steps have been taken to put the respondent on notice of the proceeding.

The Legislative Framework and the purpose of disciplinary proceedings

33. The main guiding principles of the national registration and accreditation scheme are set out in section 3A of the National Law.

34. Subsection 3A(1) of the National Law provides for the main guiding principle as follows: (1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount— (a) protection of the public; (b) public confidence in the safety of services provided by registered health practitioners and students.

35. An entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A. The Tribunal is such an entity.

36. A National Board, such as the Board, is required to refer matters to a responsible tribunal (such as ACAT) in certain circumstances. Subsection 193(1)(a) of the National Law provides: (1) Subject to section 193A, 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, the practitioner has behaved in a way that constitutes professional misconduct; or ...

37. Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) permits a person to make an application to the Tribunal if an authorising law, such as the National Law, provides for this to occur.

38. After hearing a matter about a registered health practitioner, a responsible tribunal may make a number of different decisions. These include that the practitioner has behaved in a way that constitutes unprofessional conduct or that 1 the practitioner has behaved in a way that constitutes professional misconduct.

39. If the responsible tribunal makes one of those decisions, it may then take certain action, including cautioning or reprimanding the practitioner, imposing a condition on the practitioner’s registration, requiring the practitioner to pay a 2 fine, or suspending or cancelling the practitioner’s registration.

40. A s should be apparent from the guiding principes, the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner. As stated in Craig v Medical Board of Australia [2001] SASC 169 at [41]: A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practicing, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

41. The Board carries the burden of proof. The standard of proof is the normal civil standard of “on the balance of probabilities”. In the context of disciplinary proceedings, the standard is to be applied having regard to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. Findings of fact must be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding. The Tribunal must be “comfortably satisfied” of those facts, on proper evidence.

42. Section 5 of the National Law provides the following non-exhaustive definition of: professional misconduct, of a registered health practitioner, includes – (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

1 National Law, s 196(1)(b)(ii) and (iii) 2 National Law, s 196(2) (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

43. As the definition of “professional misconduct” is an inclusive rather than exhaustive one, it is accepted that the common law meaning of professional misconduct subsists alongside the three limbs comprising the statutory definition. At common law, professional misconduct includes conduct that would reasonably be regarded as disgraceful or dishonest by members of the 3 relevant profession of good reputation and competency.

44. To satisfy limbs (a) or (b) of the statutory definition of professional misconduct, 4 the relevant conduct must satisfy a two-step test : (a) first, it has to meet the less stringent standard of ‘unprofessional conduct’, namely “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”; (b) second, it has to be sufficiently serious to amount either as an individual instance (limb (a)) or cumulatively for more than one instance (limb (b)) to conduct falling substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

45. Further, in order to satisfy limbs (a) or (b) the exercise involves an evaluation of whether the practitioner’s conduct departed, to a requisite degree, from a relevant standard that is expected of them:

3 E.g., Allinson v General Council of Medical Education and Registration [1894] 1QB 750; ] Adamson v Pharmacy Board of Tasmania (No 2) [2004] TASSC 82 at [10] 4 Nursing and Midwifery Board of Australia v Morrison (Occupational Discipline) [2022] ACAT 92 (a) in the first step, the standard is that reasonably expected of the practitioner by the public or professional peers, and the extent of departure need only be “lesser” in order to fall within unprofessional conduct; (b) in the second step, the standard is that reasonably expected of a practitioner of an equivalent level of training or experience, and the departure must be “substantial” in order to fall within professional misconduct.

46. Section 39 of the National Law provides that the Board may develop and approve codes and guidelines (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions.

47. The Tribunal is regularly assisted in determining whether these standards have been departed from to the requisite degree by assessing whether the conduct breached any codes or guidelines approved by the Board. Section 41 of the National Law provides that a code or guideline approved by the Board is admissible in evidence as to what constitutes appropriate professional conduct or practice for the health profession. At all relevant times, the Code of Conduct 5 for Nurses (Code of Conduct) , developed and approved by the Board under s 39 of the National Law, and the ICN Code of Ethics for Nurses (revised 2021) 6 (Code of Ethics) applied to the respondent.

The allegations

48. The Board submits the respondent’s conduct was inconsistent with the 7 following standards (citations omitted): [35.1]Principle 1.2 of the Code of Conduct (Legal compliance, 1.2 Lawful Behaviour) requiring nurses not to engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. [35.2] Principle 1.3 of the Code of Conduct (Legal compliance, 1.3 Mandatory reporting) requiring nurses to abide by mandatory reporting legislation imposed to protect groups particularly at risk, including reporting obligations about child abuse and remaining

5 Nursing and Midwifery Board of Australia, ‘Code of Conduct for Nurses’ (effective from 1 March 2018) 6 International Council of Nurses, ‘The ICN Code of Ethics for Nurses’ (revised 2021) 7 Applicant’s Submissions on Facts, Findings and Determinations dated 22 October 2025 at [35] alert to groups who may vulnerable to sexual exploitation and acting on welfare concerns [35.3] Element 2.5 of the Code of Ethics element 2.5 requiring nurses to maintain standards of personal conduct at all times. Nurses are required to reflect well on the profession and enhance its image and public confidence and are to recognise and maintain personal relationship in their professional role [35.4] Element 4.2 of the Code of Ethics requiring nurses to uphold the dignity, freedom and worth of all human beings and oppose all forms of exploitation, such as human trafficking and child labour

49. Further, under s 130(1) of the National Law (as in force at the time), a registered health practitioner is required to provide written notice to the Board within seven days after becoming aware that a “relevant event” has occurred in relation to the practitioner. A “relevant event” is defined in s 130(3) of the National Law to include being: (a) charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (b) convicted of an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere.

50. At the time of the charges, on 1 April 2022, the respondent was registered as an Enrolled Nurse with the Board. However, the respondent did not renew her registration and became unregistered on 1 June 2022. As such, in accordance with s 130, the respondent was required to notify the Board in writing of Charge 1 and Charge 2 by 8 April 2022 but failed to do so. The Board because aware of the charges through notification from the notifier on 26 April 2022.

51. The Board alleges that the respondent’s failure to notify the Board was 8 inconsistent with: [42.1] Principle 1.1 of the Code of Conduct which requires nurses to abide by any reporting obligations under s 130 of the National Law 42.2. [42.2] Element 1.8 of the Code of Ethics which requires nurses to demonstrate professional values such as respect, justice, trustworthiness and integrity.

8 Applicant’s Submissions on Facts, Findings and Determinations dated 22 October 2025 at [42]

52. The Board submitted that on the evidence before it the Tribunal could be “comfortably satisfied” that the Respondent engaged in the conduct alleged in grounds 1 and 2.

Characterisation – has respondent engaged in professional misconduct?

53. The Board relies on limb (c) of the statutory definition of professional misconduct. This requires that it establish that the conduct engaged in by the practitioner, viewed objectively, is inconsistent with being a fit and proper person to hold registration.

54. This is a backward-looking test – it does not require any assessment of whether the practitioner is currently a fit and proper person to hold registration in the 9 profession .

55. In Psychology Board of Australia v Griersmith [2019] VCAT 52 at [67], the Tribunal described the meaning of a fit and proper person under the National Law as follows (citations omitted): The term ‘fit and proper person’ is not defined in the National Law but its meaning has been the subject of much judicial comment. The test does not carry defined criteria but allows for a wide range of matters to be considered. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licenses entails. The decision maker needs to make a value judgement and, in doing so, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be taken in weighing matters in favour of the person. The tests must be applied in the context of what the person will be authorised to do if the relevant permission is given.

56. Limb (c) of the definition of professional misconduct was examined extensively by this Tribunal in Pharmacy Board of Australia v Respondent OR92024 (Occupational Discipline) [2025] ACAT 2 (Respondent OR92024). Along with a number of observations made as to the proper construction of limb (c), the Tribunal stated at [48]:

9 The respondent’s present situation is relevant to sanction but not to the prior question of characterisation The starting point for construing paragraph (c) of the definition of “professional misconduct” in the National Law is the text of the provision. The text refers to “conduct... that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.” The text does not, of itself, resolve the question of whether it is only the objective conduct which is to be considered when determining fitness and propriety, or whether the word “conduct” imports both the actions of the practitioner and the full circumstances in which they occurred. However, contrary to [the Board’s] submission, the definition does invite an inquiry into the practitioner’s fitness and propriety to hold registration. It requires an assessment of whether the conduct is inconsistent with “the practitioner” being a fit and proper person. This supports a focus not only upon the conduct, but also upon the fitness and propriety of the particular practitioner in question.

57. Respondent OR92024 establishes that in considering whether conduct is inconsistent with a practitioner being a fit and proper person to hold registration in the profession, it is appropriate to consider the objective and subjective circumstances surrounding the conduct and not merely the conduct itself. The Tribunal is satisfied that it should apply this approach.

58. Section 5 of the National Law sets out a range of conduct that constitutes “unprofessional conduct”. Relevantly, such conduct includes the conviction of a practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession.

59. The conduct in ground 1 is extremely serious. It could not be seriously in doubt that it is professional misconduct under limb (a) on the basis that it is unprofessional conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

60. It is also conduct that is clearly inconsistent with the respondent being a fit and proper person to hold registration in the nursing profession within limb (c) of the test. The respondent’s conduct is inconsistent with core requirements of fitness and propriety, including the obligation to act lawfully and with integrity and compassion, and to protect the rights and freedoms of children, being one of the most vulnerable members of society.

61. The conduct therefore constitutes misconduct under limb (a) and (c).

62. Section 130(1) of the National Law required the respondent to report when charged with offences punishable by 12 months imprisonment or more. This requirement arose when she was charged with Charge 1 and Charge 2 on 1 April 2022 was clearly in breach of it.

63. The failure to notify conduct is less serious than the conduct in ground 1. It is, certainly unprofessional conduct, in that it is of a lesser standard than that which might reasonably be expected of the respondent by the public or her professional peers and the Tribunal makes that finding. Given the seriousness of the charges, the failure to report likely meets the definition of serious misconduct under limb (a) of that test.

Appropriate disciplinary action

64. Section 196(1)(b) of the National Law provides that after hearing a matter about a registered health practitioner, the Tribunal may take a number of actions, including deciding that the practitioner has behaved in a way that constitutes professional misconduct.

65. As the Tribunal is satisfied that the respondent has engaged in professional misconduct under s. 196(1)(b), it may make one or more of the following determinations pursuant to s 196(2): (a) the respondent be cautioned or reprimanded (s 196(2)(a)); (b) on the basis of the respondent’s convictions for offences under other Acts, the nature of which may affect the practitioner’s suitability to continue to practise the profession; (c) the respondent be fined not more than $30,000 made payable to the Board (s 196(2)(c)); (d) disqualify the respondent from applying for registration as a registered health practitioner for a specified period (s 196(4)(a)); (e) prohibit the respondent, either permanently or for a stated period, from providing any health service or a specified health service and/or using any title or a specified title (s 196(4)(b)); (f) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the respondent (s 196(4)(c)).

66. As set out above, it is well established that the purpose of the imposition of protective orders in disciplinary proceedings under the National Law is, consistent with the “main guiding principle” in s 3A(1) of the National Law, to protect the public and protect the profession, in the sense of maintaining its stature and integrity in the eyes of the public.

67. The law relating to the making of determinations was extensively considered in 10 Medical Board of Australia v Jansz and can be summarised as follows: (a) The purpose of the imposition of determinations is to protect the public; (b) Determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public; (c) Determinations should in no way be punitive. The objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; and by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and (d) Determinations facilitate rehabilitation on the part the practitioner. Personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner and the likelihood of recidivism. Or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination. The degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner. Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the

10 [2011] VCAT 1026 practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do what is necessary to avoid further transgressions.

68. Any form of official censure is of consequence. A reprimand is a serious matter for a professional person, with real ramifications for professional reputation and prospects, and should not be considered a “slap over the wrist”.

69. The Tribunal is satisfied that it is appropriate take a “global” approach to determinations, rather than endeavour to impose separate sanctions for each unprofessional act, given they are intertwined.

70. The conduct alleged in ground 1 is extremely serious. Offences associated with child pornography, and the exploitation and/or abuse of children are inconsistent with being a fit and proper person to hold registration: Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] and [75].

71. The seriousness of the criminal conduct is also demonstrated by the maximum penalty of 15 years imprisonment for Charge 1 and Charge 2.

72. There is no evidence that the respondent created the child abuse material or that she actively sought the material out. However, as the ACT Supreme Court noted, the criminal charges are not victimless crimes and accessing and possessing such material “creates a market for the continued corruption and 11 exploitation of children. Children are sexually abused to supply the market”.

73. It is of no consequence that the child abuse material that was located on the respondent’s mobile phone appears to have been automatically saved on the mobile phone when they were sent to her by the co-offender. The respondent encouraged the sending of the material by engaging with the co-offender in depraved conversations regarding the subject. As admitted by the respondent, she went along with the co-offender’s discussion of sexually exploiting and abusing children and made no attempt to report it for five months.

11 R v Crivici [2024] ACTSC 156 at [190]

74. The conduct also cannot be considered as an isolated, inadvertent or a momentary lapse in judgment, as it occurred over a period of approximately five months, with the respondent transmitting 11 files as well as text-based abuse material to the co-offender via WhatsApp between 7 and 31 October 2021.

75. The seriousness of the conduct in ground 1 is mitigated to some extent by the respondent’s self-reporting of the offences to the Police, which led to her own conviction and to that of the co-offender. It is better late than never, but the Tribunal is not satisfied that the reporting was motivated by anything other than concern for the ramifications should she be caught. There is no evidence of any true and considered insight into the seriousness of or remorse for the conduct she engaged in.

76. The respondent was also sentenced to a significantly less period than the maximum term, with the ACT Supreme Court sentencing her to a combined period of 15 months imprisonment. That sentence was fully suspended due to the respondent’s guilty pleas and her assistance to the law enforcement authorities. Regard for reporting and cooperation in penalty may encourage such conduct by others, or the benefit of the community, and the penalty should reflect that.

77. Of some further relevance is the respondent’s history of personal challenges, including excessive alcohol and drug usage, self-harming behaviour and suicidal ideation. In recent years, following her charges, she has been diagnosed with several mental health disorders including complex post-traumatic stress disorder and autism spectrum disorder. Unfortunately, it is unclear the extent to which these factors caused or led to poor decision making by the respondent. The respondent’s failure to participate in this proceeding means the Tribunal can give but limited weight to these considerations.

78. I do accept that the respondent appears to have been desperate for some kind of contact or connection and may have been particularly vulnerable, but that raises a different kind of concern about her fitness to practice. The Board submitted, and the Tribunal accepts, that the respondent’s psychological conditions and their impact on her functioning raises concerns as to her underlying fitness to practice. Again, the respondent’s failure to participate means these concerns remain unaddressed.

79. It is also of concern to the Tribunal that the respondent’s alcohol and substance abuse may have worsened since her convictions. There is reference in the AFP records to an event on 14 January 2024 which involved serious levels of intoxication that I do not need to further detail in these reasons, save to say that there is nothing before the Tribunal to suggest that the respondent has taken steps to mitigate any risks she presents to the public.

80. As the respondent is no longer registered as an Enrolled Nurse, the Tribunal is more limited in the determinations open to it than would be the case were she still registered. However, it must do what it can to protect the public and meet the purposes of the Act.

81. The board seeks a reprimand, a 4-5 year disqualification period from re-applying for registration, with a corresponding period banning the respondent from the provision of any health services or using the title of an enrolled nurse.

82. The Tribunal is satisfied that a reprimand is an appropriate mechanism for the Tribunal to express its condemnation of the nature and extent of the respondent's misconduct. It indicates to the public, patients and other practitioners that the standards expected of the respondent have not been met and that the respondent has been censured. It therefore orders that the respondent be reprimanded.

83. The Tribunal is also satisfied that a lengthy disqualification period is appropriate. Such a period is necessary both for the protection of the public and for general and specific deterrence.

84. There is evidence that the respondent expressed remorse in the Supreme Court proceedings, but it is not clear whether this was true remorse for the child victims of the offences, or for the consequences for herself of engaging in the conduct. As the respondent has not engaged in the Tribunal proceedings, the Tribunal has not been able to assess the respondent’s insight or remorse and hence it must assume that the risks she presents remain unaddressed.

85. Given the respondent’s lack of involvement in the proceedings, the Tribunal cannot assess the likelihood of the respondent repeating the offending behaviour. It may well be that the specific offences are a consequence of a particular emotional state and relationship she was in, are unlikely to be repeated. However, even on an empathetic reading of the evidence, and of her personal circumstances at the time of the commission of the offences, it is apparent that the respondent has certain personality vulnerabilities that would need to be addressed before any consideration could be given to reregistration.

86. Further, and having regard to the seriousness of the misconduct, a significant period of disqualification is required for purposes of specific and general deterrence, and for the maintenance of professional standards and public confidence in those standards.

87. At Annexure A of its submissions, the Board presented a list and summary of cases concerning penalty for cases involving the possession or transmission of child exploitation material. The Tribunal is grateful to the Board for this work. Again, the respondent did not file anything is response.

88. All the cases in Annexure A demonstrate a lengthy period of disqualification is appropriate where practitioners have engaged in offences related to child abuse or child pornography.

89. Nursing and Midwifery Board of Australia v Ward [2022] WASAT 104 concerned a practitioner who plead guilty to two counts of using a carriage service to access child pornography. He also failed to notify the Board of the charges. The material involved was of most serious kind but access took place over a short period of three to four days. A handwritten note found in his room said “I love child porn and rape yum.” The Western Australian State Administrative Tribunal imposed a disqualification period of 2.5 years. He did not participate in the proceedings.

90. In Nursing and Midwifery Board of Australia v Augustine (Review & 12 Regulation), the practitioner had pleaded guilty to 3 criminal offences relating

12 [2025] VCAT 85 to accessing, transmitting and possessing or controlling child abuse material over a period of 6 weeks. The material concerned prepubescent children. The practitioner was sentenced to 14 months imprisonment and was released on recognisance after four months. The practitioner also failed to notify the board. VCAT imposed a disqualification period of 6 years.

91. Nursing and Midwifery Board of Australia v Hauser [2025] VCAT 313 concerned a practitioner who made and uploaded 19 recordings of himself describing sexual fantasies involving children. He pleaded guilty and was sentenced to two years imprisonment. His registration was cancelled and he was disqualified from applying for registration for four years.

92. Medical Board of Australia v McGavigan [2023] SACAT 65 involved the practitioner asking others to role play as children or to source a young girl for the purpose of roleplaying. His registration was cancelled and he was prohibited from reapplying for ten years. The attempt at procurement makes this one of the most serious cases.

93. In Medical Board of Australia v Yu (No 2) [2021] SACAT 45, the practitioner was in possession of 481 images, 60 videos and 17 system files of child exploitation material included sexual activity. The offending took place over a period of five years. Dr Yu was sentenced to a period of imprisonment, although it was suspended. He was disqualified from applying for registration for a period of eight years.

94. In Medical Board of Australia v Pang [2018] VCAT 1221, the practitioner attempted to take a photograph up the dress of a 12-year-old child and also failed to disclose a previous conviction for possessing child pornography. He was disqualified for four years.

95. In Nursing v Midwifery Board of Australia v Omant [2015] VCAT 1529 the practitioner was charged with three offenses relating to possessing and accessing child pornography. He disclosed that he had a serious alcohol abuse disorder and that the offending had happened over a four-year period in which he was drinking to excess. The proceedings were complicated by lengthy legal action, but by their conclusion the practitioner had effectively been suspended for almost five years and the Board did not seek further suspension.

96. I agree with the Board that the respondent’s conduct seems more serious than that in Nursing and Midwifery Board of Australia v Ward, which was over a very short period (3 to 4 days), but less serious that Medical Board of Australia v McGavigan where there appears to have been an attempt at procurement of a child.

97. I agree that the respondent’s conduct could be considered more similar to the circumstances in Nursing and Midwifery Board of Australia v Hauser, Medical Board of Australia v Lee and and Nursing and Midwifery Board of Australia v Omant, although again in those cases there appears to have been more evidence that the practitioner had a sexual interest in children and took more active steps to procure the material. In the present matter, before the ACT Supreme Court, the respondent denied having any sexual interest in children.

98. On any view, however, the respondent was prepared to access and transmit child exploitation material in order to maintain a relationship, demonstrating a lack of empathy for the victims and a lack of insight into the seriousness of her conduct and the consequences of it. While she has shown some remorse, its genuineness cannot truly be assessed, and it does not appear that she has taken any steps to address underlying vulnerabilities. Her failure to participate in the proceedings means that the Tribunal has no idea whether she has, or is willing to, take any steps to address the circumstances that led to the offending.

99. That said, the respondent is still a young woman who has endured many personal challenges. While it is difficult to see how she could ever return to employment involving the care of children, it is not impossible that she would strive to achieve employment in other areas of nursing in the future, and the Tribunal does not wish to impose a penalty that is so crushing as to remove all hope.

100. Having regard to the cases, the Tribunal is satisfied that a suspension period of four years is appropriate. After that time, she will need to satisfy the Board that she is a fit and proper person for registration, and will no doubt need to demonstrate remorse and contrition and that she has taken steps to address the circumstances that led to the offending.

Prohibition

101. The comparative cases indicate that prohibition orders are appropriate where the Tribunal has serious concerns about the risk posed to the public by a practitioner. While there is nothing to suggest that the respondent is holding herself out as a health practitioner (indeed, the evidence is quite to the contrary), the risk are such that the Tribunal is satisfied that the respondent should be prohibited from providing any health service (as defined in the National Law) for a period of time the same length as the disqualification period.

Costs

102. The Board seeks an order that the practitioner pay its costs of and incidental to the proceedings. The Board submits that an order that the respondent pay its costs is appropriate and in the interests of justice because if a costs order were not made, the Board's costs will effectively be borne by other registered members of the profession (as the Board is primarily funded by the annual registration fees paid by practitioners) instead of the practitioner who engaged in the misconduct.

103. Section 48 of the ACAT Act provides that the parties to an application must bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders. Section 57 of the ACAT Act details that an authorising law may set out the powers of the tribunal, and the decisions it may make under the authorising law. Section 195 of the National Law provides that the tribunal may make any order about costs it considers appropriate for the proceedings. As such, it gives the tribunal a discretion in relation to costs orders and is an authorising law as contemplated by section 57 of the ACAT Act.

104. The Tribunal notes the High Court authority of Latoudis v Casey [1990] HCA 59 where McHugh J reasoned in relation to costs at [6] that: Even when the discretion is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against a successful party expect for reason connected with the case.

105. This Tribunal has also previously made costs orders in favour of a national board, see Medical Board of Australia v Adams [2015] ACAT 8; Medical Board of Australia v Kanapathipillai [2016] ACAT 16.

106. The respondent’s failure to participate means that there are no submissions before the Tribunal as to why she should not pay costs. She has engaged in such clear misconduct, and had played no part in the proceedings, even to assist (she could have saved the resources of both the applicant and the Tribunal by agreeing to facts were the matter genuinely not contested).

107. I have no information as to the respondent’s capacity to pay costs. Of course, the Tribunal can draw inferences from the evidence before it, and the obvious one is that she is very unlikely to have the means to pay a cost order of any kind. This alone, however, is not a reason to decline making a costs order where it is otherwise appropriate.

108. Accordingly, I will also make an order for costs. Whether the applicant chooses to enforce it will be a matter for it.

……………………………….. Presidential Member H Robinson

Date(s) of hearing: 18 November 2025 Solicitors for the Applicant: Australian Government Solicitor Respondent: No appearance