1. The respondent ('Mr Omant') is a registered nurse.
2. On 24 November 2010, Australian Federal Police ('AFP') members executed a search warrant at Mr Omant's residence. They found images and videos subsequently classified as child pornography. The images and videos covered all five levels of classification of child pornography: nudity or erotic posing (Level 1), sexual activity between children or solo masturbation by a child (Level 2), non-penetrative sexual activity between adults and children (Levels 3), penetrative sexual activity between adults and children (Level 4), and sadism and bestiality (Level 5).
3. On the same day, Mr Omant was charged with three offences relating to the use of a carriage service to access child pornography and knowingly possessing child pornography material.[1]
4. Mr Omant pleaded guilty to all three offences at the committal proceedings, and on 27 May 2011 was sentenced in the County Court of Victoria at Geelong ('County Court') by his Honour Judge Chettle to a total effective sentence of eighteen months, suspended for a period of two years on a recognisance release order in the sum of $1,000 to be of good behaviour.[2] The suspended sentence expired on 26 May 2013.
5. On 25 January 2013, the Victorian Board, as delegate of the Nursing and Midwifery Board of Australia ('the Board'), referred the matter to the Victorian Civil and Administrative Tribunal ('the Tribunal') under s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ('the National Law').[3]
6. On 13 September 2013, the Tribunal found that Mr Omant had engaged in professional misconduct and unprofessional conduct. The Tribunal ordered that Mr Omant's registration be suspended for 12 months, and subjected his registration to various conditions and restrictions.
7. Mr Omant sought judicial review of the Tribunal's decision in the Supreme Court of Victoria. On 13 October 2014, Justice Rush made orders quashing the decision of the tribunal and ordering the matter to be remitted for hearing de novo by a differently constituted Tribunal.[4]
8. On the remitter to the Tribunal, Mr Omant did not dispute that he had downloaded child pornography onto computers and hard drives located at his house over a period of four years before the search of his house by the AFP. However, he contended that his conduct was not professional misconduct, as it was not undertaken at his place of employment and had not affected the performance of his duties as a nurse. Rather, he contended that his actions were no more than unprofessional conduct.

1. The amended allegations relied on by the Board are[5]:

1.1 engaged in professional misconduct as defined in paragraph (c) of the definition of 'professional misconduct' in section 5(1) of the National Law; or

engaged in unprofessional conduct as defined in paragraph (c) of the definition of 'unprofessional conduct' in section 5(1) of the National Law -

in that, while registered as nurse in Division 1, in the County Court at Geelong on 27 May 2011 he was found guilty of the following offences:

1.1.1 Use a carriage service to access child pornography material contrary to sub-section 474.19(1) of the Criminal Code (Cth) between 23 August 2009 and 14 April 2010 (maximum 10 years imprisonment at the time of offending);

1.1.2 Access child pornography material using a carriage service contrary to sub-section 474.19(1) of the Criminal Code (Cth) between 15 April 2010 and 23 November 2010 (maximum 15 years imprisonment); and

1.1.3 Knowingly possess child pornography on 23 November 2010, contrary to section 70(1) of the Crimes Act 1958 (Vic) between 21 July 2006 and 27 March 2007 (maximum 5 years imprisonment) -

and otherwise breached an applicable code of conduct and his ethical responsibilities.

(a) At all relevant times Mr Omant was registered to practice as a nurse in Division 1.

(b) On, about or between 21 July 2006 and 27 March 2007; 23 August 2009 and 14 April 2010; and 15 April 2010 and 23 November 2010 Mr Omant used a computer to access the internet and in turn access and download child pornography.

(c) The total number of images (1,111) and videos (164) in Mr Omant's possession (stored on one computer, two laptops and a USB storage device), covered all five levels of classification of child pornography, including the most serious level (Level 5).

(d) During a record of interview with the Australian Federal Police on 24 November 2010, Mr Omant made the following admissions:

(1) he accessed the internet for child pornography in early 2009;

(2) he used programs to download child pornography for 18 months to two years;

(3) he viewed child pornography three to four times a week; and

(4) his age of attraction is 12 to 14-year-old girls.

(e) On 24 November 2010, Mr Omant was arrested and charged by the Australian Federal Police with two counts of using a carriage service to access child pornography and one count of possession of child pornography.

(f) On 18 March 2011, Mr Omant pleaded guilty to all charges contained on the Indictment.

(g) Mr Omant was convicted and sentenced to an effective term of imprisonment of 18 months, comprising (18 months imprisonment for charges 1 and 2) and 12 months imprisonment for Charge 3).

(h) Mr Omant was sentenced as a serious sexual offender in respect of Charge 3.

(i) The length of the Mr Omant's reporting period pursuant to the Sex Offender Registration Act 2004 is life.

(j) Mr Omant was released upon giving security by way of his own recognisance in the sum of $1000 to be of good behaviour for a period of two years.

(k) The sentence that would have been imposed if convicted of this offence after a trial would have been a total effective term of imprisonment of two years with a non-parole period of 12 months.

1. On, about or between 1 July 2010 and 23 November 2010, Mr Peter William Omant:

2.1 engaged in professional misconduct as defined in paragraph (a) and/or (c) of the definition of 'professional misconduct' in s 5(1) of the National Law; or

2.2 engaged in unprofessional conduct as defined in s 5(1) of the National Law -

in that while registered as a nurse in division 1, he accessed and possessed child pornography and otherwise breached an applicable code of conduct and his ethical responsibilities.

(a) The Applicant refers to and repeats particulars 1(b) - (j).

(b) Conduct Statement 9 of the Australian Nursing and Midwifery Council's ("ANMC") Code of Professional Conduct for Nurses in Australia (2006) provides:

The conduct of nurses maintains and builds public trust and confidence in the profession at all times.

The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing professional and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.

(c) Conduct Statement 8 of the ANMC's Code of Professional Conduct provides:

Nurses recognise that vulnerable people, including children ... must be protected from sexual exploitation and physical harm.

(d) Standard 1.2 of the ANMC's National Competency Standards for the Registered Nurse (2006) requires nurses to:

... recognise the responsibility to prevent harm.

1. On, about or between 23 August 2009 and 30 June 2010 Mr Peter William Omant:

3.1 engaged in professional misconduct as defined in paragraphs (b) and/or (c) of the definition of 'professional misconduct' in s 3(1) of the Health Professions Registration Act 2005; or

3.2 engaged in unprofessional conduct as defined in s 3(1)(h)((i) of the HPRA -

in that while registered as a nurse in division 1, he accessed and possessed child pornography and otherwise breached an applicable code of conduct and his ethical responsibilities.

(a) The Applicant refers to and repeats particulars 1(b) - (j) and 2(b) to (d).

1. On, about or between 21 July 2006 and 27 March 2007, Mr Peter William Omant engaged in unprofessional conduct of a serious nature as defined in paragraphs (a) and/or (b) and/or (d) of the Nurses Act 1993 in that while registered as a nurse in division 1, he accessed and possessed child pornography and otherwise breached an applicable code of conduct and his ethical responsibilities.

(a) The Applicant refers to and repeats particulars 1(b) - (j) and 2(b) to (d).

1. Section 5(1) of the National Law provides as follows:

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

(i) a condition to which the practitioner's registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and

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

(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and

(e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and

(f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and

(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and

(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

1. The Health Professions Registration Act 2005 (Vic) ('HPRA') was repealed on 1 July 2012 by the Health Professions Registration (Repeal) Act 2012. Section 3 of the HPRA relevantly provided:

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession;

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;

(d) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for that person's well-being;

(e) influencing or attempting to influence the provision of health services in such a way that client care may be compromised;

(f) a contravention of section 94 or the guidelines issued under section 95;

(g) the failure to act as a health practitioner when required under an Act or regulations to do so;

(i) an offence where the health practitioner's suitability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the health practitioner to continue to practise because of the finding of guilt; or

(ii) an offence under this Act or the regulations; or

(iii) an offence as a health practitioner under any other Act or regulations;

(i) the contravention of, or failure to comply with a condition imposed on the registration of the health practitioner by or under this Act;

(k) the breach of an agreement made under this Act between a health practitioner and the responsible board that registered that practitioner.

1. The Nurses Act 1993 (Vic) ('Nurses Act') was repealed on 1 July 2007 by the HPRA. Prior to its repeal, s 3 of the Nurses Act relevantly provided:
   1. Definitions

"unprofessional conduct" means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered nurse; or

(i) an indictable offence in Victoria or an equivalent offence in another jurisdiction; or

(ii) an offence where the nurse's ability to continue to practise as a registered nurse is likely to be affected because of the finding of guilt, or where it is not in the public interest to allow the nurse to continue to practise because of the finding of guilt; or

(iii) an offence against this Act or the regulations; or

(iv) in the case of a nurse practitioner, an offence as a nurse practitioner under any other Act or regulations; or

(d) professional conduct which is of a lesser standard than that which might reasonably be expected of a registered nurse by her or his peers; or

(e) providing a person with nursing services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being; or

(f) influencing or attempting to influence the conduct of a nurse's practice in such a way that patient care may be compromised; or

(g) the failure to act as a nurse when required under an Act or regulations to do so; or

(h) the contravention of or failure to comply with a condition, limitation or restriction on the registration or endorsement of registration of the nurse imposed by or under this Act.

1. Mr Omant has requested a two phase approach to the hearing of the proceeding, with the Tribunal's findings to be provided to the parties prior to receipt of submissions as to the final orders of the Tribunal in the event that Mr Omant is found guilty of professional misconduct.[6]

1. The jurisdiction of the Tribunal is protective, not punitive. In Clyne v New South Wales Bar Association[7], the High Court said:

Although it is sometimes referred to as "the penalty of disbarment", it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.[8]

1. In Legal Services Commissioner v Brereton[9], the Court of Appeal said:

The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner's name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.[10]

1. The Tribunal has an important role in maintaining public confidence in the reputation of the nursing profession.

1. The Board is required to prove its case on the balance of probabilities in accordance with the test in Briginshaw v Briginshaw.[11]
2. In Karakatsanis v Racing Victoria Limited,[12] the Court of Appeal endorsed the use of the Briginshaw test by the Tribunal, and approved and adopted a formulation of the test in the following terms:

... The notion of "inexact proof, and indefinite testimony or indirect references..." needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.[13]

1. The result is that the Tribunal must be satisfied in its findings to a 'comfortable level of satisfaction' on the balance of probabilities, consistent with the gravity of the allegations.

1. The parties provided the Tribunal with a statement of agreed facts[14]:

1. The Respondent was born on 24 May 1957 and is 57 years of age.
2. The Respondent currently holds general registration as a Registered Nurse (Division 1).
3. The Respondent's registration is subject to the following condition:

"That Mr Omant must not practice nursing until the conclusion of the criminal and Nursing and Midwifery Board of Australia investigations, and any subsequent hearings, into his conduct and health."

1. This condition has been in place since 13 December 2010 except for a period in which an order of the Victorian Civil and Administrative Tribunal (since quashed) was in effect.

1. On 24 November 2010, Australian Federal Police ("AFP") members attended at the Respondent's residence and executed a search warrant. The search located a number of images and videos subsequently classified as child pornography material.
2. The Respondent was arrested and interviewed by AFP members. During the interview, the Respondent made a number of admissions, including:

6.1 he was accessing child pornography material online for the past two years;

6.2 he accessed child pornography material 3-4 times per week; and

6.3 he knows that accessing child pornography material is illegal and offensive to some people, but continues to download material for the challenge of it.

1. During the search, the AFP seized the following items from the Respondent's premises:

1. An analysis conducted by the Forensic and Data Centre at the Australian Federal Police identified the following images and access dates in respect of the above items:

8.1 "Mystique" midi computer tower: 45 picture files and 64 video files with creation dates between 1 October 2010 and 23 November 2010;

8.2 Asus F3J laptop computer: 952 picture files and 39 videos with creation dates between 6 August 2010 and 5 September 2010;

8.3 Toshiba Satellite A 30 laptop computer: 89 picture images and 56 video files with creation dates between 21 July 2006 and 27 March 2007;

8.4 Transcend USB flash device: 29 picture files and 5 video files with creation dates between 16 November 2008 and 23 February 2008[15]; and

8.5 Maxtor external hard disk drive: 6 video files with creation dates between 11 December 2007 and 23 May 2008.

1. The materials identified within the above items were classified into five levels of severity:

9.1 Level 1 - images depicting nudity or erotic posing, with no sexual activity: 681 images and 37 videos;

9.2 Level 2 - sexual activity between children, or solo masturbation by a child: 78 images and 36 videos;

9.3 Level 3 - non-penetrative sexual activity between adult(s) and child(ren): 160 images and 23 videos;

9.4 Level 4 - penetrative sexual activity between adult(s) and children); 183 images and 68 videos; and

9.5 Level 5 - images depicting sadism or bestiality: 12 images and 1 video.

1. On 24 November 2010, the Respondent was charged with the following three offences:

10.1 Charge 1 - Between 23 August 2009 and 14 April 2010, Peter Omant used a carriage service to access child pornography material in breach of section 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth);

10.2 Charge 2 - Between 15 April 2010 and 23 November 2010, Peter Omant accessed child pornography material using - a carriage service in breach of section 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth); and

10.3 Charge 3 - On 24 November 2010, Peter Omant was knowingly in possession of child pornography material In breach of section 70(1) of the Crimes Act 1956 (Vic).

1. Charges 1 and 2 are effectively one continuing offence but laid in two counts because there was a change in the legislation, where the maximum penalty changed from 10 years to 15 years.
2. On 27 May 2011, in the County Court of Geelong, the Respondent pleaded guilty to the above three offences.
3. The Respondent's Counsel conceded that His Honour Judge Chettle could treat the prosecution opening as a statement of agreed facts.
4. On 27 May 2011, His Honour Judge Chettle sentenced the Respondent as follows:

14.1 Charge 1 - convicted and sentenced to twelve months imprisonment;

14.2 Charge 2 - convicted and sentenced to eighteen months imprisonment; and

14.3 Charge 3 - convicted and sentenced to twelve months imprisonment.

1. His Honour directed that each of the three sentences be served concurrently, resulting in a total effective sentence of eighteen months.
2. His Honour suspended the Respondent's sentence on a reconnaissance[16]release order in the sum of $1000 to be of good behaviour for a period of two years.
3. On 26 May 2013, the Respondent's suspended sentence expired.

1. On 25 November 2010, AHPRA received a verbal notification from Barwon Health's Executive Director of Nursing stating that the Respondent had disclosed that he had recently been interviewed by the AFP in relation to possession of child pornography and that he had alcohol dependency issues.
2. On 26 November 2010, AHPRA received a written notification form from Barwon Health's Executive Director of Nursing in respect of the Respondent's pending criminal charges.
3. On 2 December 2010, the Victorian Board's Notification Assessment Committee determined:

20.1 That an investigation be conducted into the Respondent's professional conduct and the possibility that the Respondent may have an impairment; and

20.2 That the matter be referred to the Victorian Board's Immediate Action Committee ("IAC") for consideration.

1. The Board's investigation was put on hold, pending the outcome of the criminal matters.
2. On 10 December 2010, the IAC determined to take immediate action by imposing the following condition on the Respondent's registration:

"That Mr Omant must not practice nursing until the conclusion of the criminal and Nursing and Midwifery Board of Australia investigations, and any subsequent hearings, into his conduct and health."

1. On 17 June 2011, AHPRA appointed Dr Guy Churchman as an Assessor pursuant to section 171 of the Health Practitioners Regulation National Law (Vic) 2009 ("the National Law"), At the time, Dr Churchman was a registered medical practitioner, with expertise in the drug and alcohol area and held a graduate diploma in counselling.
2. On 30 June 2011, Dr Churchman met with the Respondent for the purpose of undertaking a health assessment and subsequently prepared a report. Dr Churchman concluded that, on the evidence to hand, the Respondent did not have a health impairment.

1. On 16 November 2011, the Board decided to refer this matter to VCAT pursuant to section 193(1) of the National Law.
2. On 25 January 2013, the matter was referred to VCAT which made a decision on 13 September 2013.
3. On 13 October 2014, the matter was remitted to VCAT for a rehearing by the Supreme Court following Mr Omant's application for judicial review of VCAT's decision dated 13 September 2013.

1. On 22 April 2013, the Board engaged Dr Karen Owen to provide an expert opinion in this matter.
2. On 24 April 2013, Dr Owen conducted a clinical assessment of the Respondent and provided a report to the Board.
3. Dr Owen makes the following comments in her report:

30.1 There is no evidence to suggest that the Respondent has any significant psychiatric disorder or sexual behaviours or fantasy that would constitute a paraphilia.

30.2 There is past evidence of stress and coping issues that acted as precursors to the Respondent's offending. There is no evidence of current problems with stress or coping.

30.3 The Respondent has a strong interest in pursuit of his study with the express purpose of placing himself in a position to be able to adapt his training and skills into a related work area that will not bring him into contact with the public.

30.4 There are very limited factors upon which to conclude the Respondent represents an ongoing risk of sexual offending or more specifically a risk to patients in his care should he be permitted to return to the nursing profession.

30.5 Consideration of the historical data and current information strongly suggests that the Respondent's sexual offending represents a discrete period of offending related to the presence of acute dynamic risk factors rather than a pervasive pattern of sexual offending.

30.6 The Respondent is considered to represent a low risk of committing further sexual offences in the future.

30.7 On balance, consideration of the dynamic factors and the nature of the Respondent's profession in nursing [Dr Owen is] of the opinion that he is able to safely practice in his profession.

30.8 [Dr Owen is] of the opinion that should the Respondent be permitted to practice nursing in the future precautionary conditions of his registration would be warranted.

1. On 25 November 2014, Gary McMullen, Psychologist, prepared a report at the request of the Respondent's Solicitors, which copy of the report has been provided to the Board. The report states that:

31.1 Mr McMullen was of the view that Mr Omant did not meet the criteria for any mental disorder;

31.3 His treatment has comprised of cognitive - behavioural therapy, psycho-education and activity scheduling and he has been fully engaged in the work;

31.4 Mr Omant remained abstinent of alcohol for over 12 months and is now a controlled drinker;

31.5 Mr Omant has clear insight into his former offending behaviour and that the offending occurred in the context of his life at that time as outlined in Mr McMullen's earlier report of 16 February 2011. Further, Mr Omant has now radically changed his lifestyle and has no plans to return to the isolating work he did at the time and has a clear understanding of the harm he was part of creating;

31.6 Mr Omant has made a variety of very positive steps in rehabilitation; and

31.7 In Mr McMullen's opinion, Mr Omant represents a very low risk and is confident that he will not reoffend.

1. Since the suspension of the Respondent's registration as a Registered Nurse, he has not engaged in any nursing practice. Further, he has received the following Certificates of Registration:

32.1 Master's Certificate in Occupational and Environmental Health (Monash University);

32.2 Master's Certificate in Public Health (Monash University);

32.3 He is undertaking subjects for a Graduate Certificate of Health Informatics (Griffiths University) and Graduate Diploma of Health Economics and Policy (Monash University); and

32.4 A copy of the Respondent's Updated Curriculum Vitae, Certificates in Tertiary Education have been provided to the Board together with a course outline and subjects undertaken in relation to the current Graduate Certificate/Diploma which he is undertaking.

1. As part of the Respondent's registration as a Registered Nurse, he is required to be familiar with and abide by the standards which a Registered Nurse must uphold in nursing practice, including the following codes and guidelines published by the Australian Nursing and Midwifery Council of Australia and approved by the Board:

33.2 National Competency Standards for the Registered Nurse;

33.3 Code of Professional Conduct for Nurses in Australia; and

1. The Respondent, as a Registered Nurse, is required to comply with the Australian Nursing and Midwifery Council's codes and guidelines listed above.

1. In addition to the evidence provided by the statement of agreed facts, the Board tendered and relied upon the statement of Lauren Kangars, an Investigating Officer of the Australian Health Practitioner Regulation Agency ('AHPRA') and the statement of Katherine Ruth Fitzpatrick, a Federal Agent with the AFP , as well as the attachments to their respective statements. There was no request by Mr Omant to cross examine these witnesses, and therefore no need for them to attend the Tribunal to give oral evidence.
2. The Tribunal accepts the evidence contained in the statement of agreed facts and in the statements and attachments of Ms Kangars and Ms Fitzpatrick.
3. In a letter dated 9 December 2010 to the State Manager of AHPRA Victoria[17], Mr Omant's solicitors submitted:

(1) Mr Omant had struggled with alcohol for over 15 years;

(2) Mr Omant had never attended work intoxicated or under the influence of alcohol;

(3) on 24 November 2010, Mr Omant had advised his Nurse Unit Manager of the charges against him and that he struggled with alcohol, stating that he downloaded pornography while intoxicated and then deleted it once he was sober;

(4) during the period of 23 August 2009 to 23 November 2010, or indeed at any other time, there were no instances at work that brought into question Mr Omant's capacity to provide safe care to patients;

(5) Mr Omant had acknowledged that he has problems with alcohol and sex-related issues, for which he was now receiving treatment; and

(6) Mr Omant did not propose to practice pending the completion of his treatment for alcohol.

1. Ms Fitzpatrick's statement attaches the police brief filed in the County Court, and produced to the Tribunal. The brief contains full details of the numerous images and videos found at Mr Omant's home during the execution of the search warrant on 24 November 2010. The brief records admissions made by Mr Omant during a taped record of conversation:

(1) Mr Omant has been a subscriber of an Optus internet account for between 18 months and two years;

(2) Mr Omant has accessed child pornography online for two years;

(3) Mr Omant has used the file sharing program Frostwire to access child pornography;

(4) Mr Omant accessed child pornography three to four times per week;

(5) Mr Omant knows that accessing child pornography is illegal and offensive to some people, but continues to download material because finding new images presents a challenge; and

(6) Mr Omant sometimes masturbates while viewing the images, but is not sexually attracted to them. [18]

1. Ms Fitzpatrick's statement also contains as an attachment the sentencing remarks of his Honour Judge Chettle on 27 May 2011, which note:

(1) Mr Omant pleaded guilty at the committal proceeding and was fully cooperative;

(2) 45 child pornography images and 64 videos created between August and November 2010 were located on one computer;

(3) 951 child pornography images and 39 videos created between August and September 2010 were located on another computer;

(4) 89 child pornography images and 56 videos created between July 2006 and March 2007 were located on a laptop computer;

(5) 26 child pornography images and five videos were located on a portable USB device;

(6) Mr Omant has searched for child pornography using expressions such as: 'gaol bait', 'youngest teen', 'pedo', 'eleven year old', 'kiddy anal', and 'pre-teen porn star'; and

(7) the Court had viewed a sample of the images, and found them to be 'truly disgraceful'.[19]

1. Mr Omant's statement dated 12 March 2015 was tendered. His reporting period under the Sex Offender Registration Act 2004 (Vic) is life. Mr Omant acknowledged in his statement that as a result of this, he is unable to engage in any child related work, and that this will limit his employment prospects.
2. Mr Omant gave evidence that during the period of offending, when he did not have a work commitment, he would drink a dozen cans of beer in order to get to sleep because he was suffering from insomnia and could not turn off from work.
3. Mr Omant acknowledged that, following a period of abstinence after his conviction, he had returned to drinking but was now drinking light beer.[20] He was now a diagnosed diabetic, and was drinking three to four nights a week.[21] Mr Omant conceded that if he was stressed or lonely, he was more likely to drink alcohol, and become more vulnerable to surfing the internet.[22]
4. Mr Omant admitted that during the search of his house in November 2010, the police located child pornography images on his home computers.[23] He admitted that the images depicted child abuse. He stated that he understood that it was wrong to search the internet for child pornography and that doing so was a conscious choice.[24] He admitted that some of the images downloaded by him were violent and degrading, depicted sadism and bestiality, and showed penetration of female children as young as three years of age by adult males.[25] He agreed that most normal members of the community would consider these images to be disgusting, and that he used the images as a source of stimulation for masturbation and sexual arousal.[26] He said that he had downloaded pornographic images over a period of four years.[27] He acknowledged that his actions could not be justified, and that he was deeply ashamed of what he had done.[28]
5. Mr Omant gave evidence that at the time of his offending, he did not view the individuals contained within the images as people, because the images were pre-existing.[29] Mr Omant gave evidence that he had believed that he was not contributing to the occurrence of the actual offence, but that he now realised that he had preyed upon the victims, who would be affected for the rest of their lives.[30]
6. Under objection from counsel for the Board, counsel for Mr Omant called a number of additional witnesses. They were Dr Owen, Dr Ward and Mr McMullen. The objection of counsel for the Board to the calling of these witnesses was that their evidence was not relevant to the question of whether Mr Omant had engaged in professional misconduct or unprofessional conduct. The Board submitted that the evidence of Dr Owen, Dr Ward and Mr McMullen was relevant to issues of penalty and registration, which at the request of the respondent were to be dealt with after the issue of professional misconduct or unprofessional conduct had been resolved. It was apparent when the witnesses were called that the objection had considerable merit. Nonetheless, the evidence of these witnesses will be of significant assistance to the Tribunal in the next phase of this proceeding.

1. Dr Karen Owen, a consultant forensic and clinical psychologist and the clinical director of Vic Psych Plus, provided a statement of evidence dated 9 May 2013 and a report dated 7 May 2013.[31] She subsequently provided a statement dated 8 April 2015, and a report dated 31 March 2015.[32]
2. Dr Owen's first assessment of Mr Omant on 24 April 2013 was for the purpose of sexual risk assessment. After two previous significant relationships, Mr Omant was single and living alone. He was considered to have a lengthy and pervasive history of intimate and non-intimate relationship problems characterised by superficial interpersonal relationships and an absence of social support networks.[33] He had no reported history of psychiatric or psychological concerns or treatment. Mr Omant did not feel that his alcohol consumption had become a problem until around 2007-2008.[34] He reported that his work had never been affected by alcohol, and that he did not go to work hung over.[35]
3. Dr Owen recorded in her first report that Mr Omant reported having a drink containing alcohol 2-3 times a week.[36] She also recorded him as stating that he did not drink more than one or two alcoholic drinks on an average day and never drank to excess.[37] Having regard to Mr Omant's own evidence before the Tribunal as to his alcohol consumption, the Tribunal has considerable doubt as to the reliability of this information provided by Mr Omant to Dr Owen.
4. In her first report, Dr Owen recorded Mr Omant as reporting that he accessed the internet for the purpose of downloading child abuse images commencing in 2009.[38] He reported using internet sites and peer-to-peer programs to access child abuse images, and continued downloading material for a period of approximately 18 months to two years.[39] The Tribunal again has considerable doubt as to the reliability of this information provided by Mr Omant to Dr Owen, as pornographic images and videos were also downloaded over the period from July 2006 to March 2007. Mr Omant reported at interview that he viewed the child abuse images three to four times a week and used the material for the purpose of sexual arousal and masturbation.[40]
5. At interview with Dr Owen, Mr Omant reported that he would 'download in bulk' as he had always had a tendency to be a 'bit of a hoarder'.[41] He said that he was looking for late teen images.[42]
6. Dr Owen noted that Mr Omant did not report any history of psychological problems or contact with mental health services. He scored a total of 30 out of a possible highest score of 30 in the Mini Mental Status Examination , which screens for cognitive impairment. [43]
7. Dr Owen reported that there is no evidence to suggest that Mr Omant has any significant psychiatric disorder. He does not have sexual behaviours or fantasy that would constitute a paraphilia.[44] There was no evidence of diversity in sexual violence. Mr Omant's offences are limited to downloading static and video pornographic material. There are no reported problems resulting from child abuse. Mr Omant denies exposure to childhood sexual abuse, physical abuse or neglect.[45]
8. Dr Owen reported that Mr Omant represents a low risk of sexual offending relative to other sexual offenders.[46] There was no information available to Dr Owen that Mr Omant had committed contact offences within the work environment, that he had used alcohol in the work environment or was intoxicated in the course of his employment when performing nursing duties.[47]
9. In the period preceding the offending, Dr Owen reported that Mr Omant was significantly socially isolated. His son moved prior to the commencement of the offending due to university commitments, thereby limiting their frequency of contact.[48] Mr Omant said that because he was unable to sleep, he resorted to regular use of alcohol, and a variety of medications, in an attempt to relax and induce sleep.[49] Neither alcohol or medication assisted his sleep routine.[50] Mr Omant said that while drinking and unable to sleep, he would sit and use the computer and attempt to study and read.[51] He commenced downloading documentaries and subsequently computer pornography to satisfy his sexual fantasy and for masturbation.[52] Dr Owen was of the opinion that Mr Omant would benefit from regular and ongoing review of his alcohol consumption.[53]
10. Dr Owen's second assessment of Mr Omant on 20 March 2015 was for the purpose of a second sexual risk assessment. The findings and opinions set out in the second report are generally consistent with those expressed in the first report.
11. In her second report, Dr Owen recorded that between the age of 17 and 27 years, on two occasions, Mr Omant engaged in child internet contact.[54] He reported that for a period of one year he used child abuse images on approximately 200 occasions.[55]
12. Dr Owen reported that there is clear past evidence of problems with substance abuse including alcohol addiction, use of benzodiazepines, tranquilisers and pain medication that continued until 2008.[56] These substances acted as a precursor to Mr Omant's offending.[57]
13. Mr Omant reported to Dr Owen that he now drinks 'at most' two stubbies of light beer or half a bottle of wine around three times a week.[58] He is a newly diagnosed diabetic.[59]
14. Dr Owen confirmed that Mr Omant remains a low risk of sexual offending generally.[60] She noted that he had stated consistently that it is his intention, should he be permitted to obtain registration, to pursue non-patient contact research positions.[61]
15. In oral evidence before the Tribunal, Dr Owen stated that although the issue is new, research at the moment suggests that around 1% of internet offenders who download child pornography go on as part of their offence process to grooming or contact offences against children.
16. During cross examination, Dr Owen agreed that stress in Mr Omant's work environment was one of the contributing factors in his offending.[62] Dr Owen stated that her sense from Mr Omant was that it was somewhat unlikely that he would place himself in that particular work environment again.[63]
17. Dr Owen confirmed that in her discussion with Mr Omant he advised that he wanted to pursue one or two shifts of casual work in a patient care situation for the sake of his registration.[64] To her knowledge, this would not be anywhere that children were, or in critical or intensive care nursing.[65]

1. Dr Barbara Ward, a general practitioner at Myers Family Medical Practice, provided a written report dated 16 July 2013 and a written report dated 1 February 2015. She gave evidence that GGT testing[66] conducted over the period from 2007 to 2015 showed that Mr Omant was a heavy drinker over the period from 2007 to 2010. The most recent test, conducted in January 2015, showed that Mr Omant had only a mildly elevated GGT, indicative of the medication that he is now on, and the fact that he is overweight.[67]

1. Mr Gary McMullen, a psychologist at the Austen Centre, provided a report dated 16 February 2011[68] and a report dated 25 November 2014.[69] In his February 2011 report, Mr McMullen referred to Mr Omant's past habit of consuming a dozen cans of full strength beers most nights. Mr McMullen reported that as at 5 January 2011, Mr Omant had not consumed an alcoholic drink for the previous six weeks. McMullen stated that he believed Mr Omant used alcohol as an ineffective mechanism to deal with stress, and that the problem had grown worse over the previous two years as Mr Omant battled insomnia due to an inability to wind down from his demanding job as an intensive care nurse.
2. In his November 2014 report, Mr McMullen recorded that Mr Omant had remained abstinent of alcohol for well over 12 months.[70] As at the November 2014 report, Mr McMullen recorded that Mr Omant was consuming alcohol on a maximum of four evenings a week, and usually consuming two or three cans of beer with a maximum of four. According to Mr McMullen, Mr Omant had radically changed his lifestyle and had no plans to return to the isolating work he did at the time of the offending. Mr McMullen classified Mr Omant as a very low risk of re-offending.
3. In oral evidence before the Tribunal, Mr McMullen highlighted the significant changes in Mr Omant's lifestyle and circumstances. During the period of his offending, he was consistently working night shifts, and had become socially isolated.[71] He was sleeping or trying to sleep during the hours when most other people are awake.[72] Mr McMullen stated that Mr Omant was accessing and using child pornography when intoxicated.[73]
4. Mr McMullen stated that it was preferable for Mr Omant not to return to work in an intensive care unit environment.[74] Mr McMullen stated that Mr Omant had absolutely no intention of ever wanting to work with children, not because he saw himself as a risk, but because he does not want it to be an issue in terms of his professional practice.[75] Mr McMullen stated that Mr Omant's primary interest is a combination of nursing practice associated with research.[76]
5. Mr McMullen had no concern about Mr Omant undertaking intensive care work during the day if he was doing short stints.[77] Mr McMullen stated that he would only become concerned if Mr Omant went back to full time night shifts.[78]

1. Counsel for the Board submitted that the offences, although spanning approximately four years, were effectively one continuing offence of using a carriage service to access child pornography. Because of changes to the legislation governing health practitioners, each allegation needed to be considered under the applicable legislation at the time.

(1) National Law Allegation paragraph 1 (27 May 2011) (Allegation 1):

On 27 May 2011, Mr Omant was convicted of three child pornography offences, relating to accessing and/or possessing child pornography over the periods of 21 July 2006 and 27 March 2007; 23 August 2009 and 14 April 2010; and 15 April 2010 and 23 November 2010.

(2) National Law Allegations paragraph 2 (1 July 2010 - 23 November 2010) (Allegation 2):

In addition to possessing much of the material downloaded prior to this period, Mr Omant downloaded 952 picture files and 39 videos onto his Asus F3J laptop over the period from 6 August 2010 to 5 September 2010. The picture files included 10 x Level 5, 166 x Level 4, 140 x Level 3, 55 x Level 2 and the balance at Level 1. The videos included 15 x Level 4, 4 x Level 3, 13 x Level 2 and the balance at Level 1. Over the period from 1 October 2010 to 23 November 2010, Mr Omant downloaded 45 picture files and 64 video files onto his 'Mystique' midi computer tower.

(3) HPRA Allegation (23 August 2009 - 30 June 2010) (Allegation 3):

Between 11 December 2007 and 23 May 2008, Mr Omant had downloaded onto his Maxtor external hard disk drive a further 5 video files. Over the period from 16 November 2008 and 23 February 2009 Mr Omant downloaded onto his USB flash device, 29 picture files and 5 video files. The picture files included 1 x Level 5, 1 x Level 4, 4 x Level 3, 1 x Level 2 and the balance Level 1 images. The video files consisted of 2 x Level 4, 2 x Level 3 and 1 x Level 2 videos. Mr Omant possessed a significant volume of child pornography at his home.[79]

(4) Nurses Act Allegation (21 July 2006 - 27 March 2007) (Allegation 4):

During this period, Mr Omant downloaded onto his Toshiba laptop 89 picture images and 56 video files. According to Ms Fitzpatrick's evidence, the images included 1 x Level 5, 10 x Level 4, 11 x Level 3, 21 x Level 2 and the balance Level 1 images. The videos included 1 x Level 5, 18 x Level 4, 11 x Level 3, 18 x Level 2 and the balance Level 1 videos.

1. Quite apart from the considerable quantity of child pornography found by the police search of Mr Omant's computers in November 2010, significant quantities of deleted material were also found. The Asus laptop contained 250 items in the recycle bin which were unable to be viewed, some with titles indicative of child pornography. On the Toshiba laptop, 708 items in the recycle bin were not viewable. None had titles indicative of child pornography.
2. The conduct on the part of Mr Omant spans the four year period occurring:
   • (a) prior to 1 July 2007, which is the date upon which:
     • (i) the Nurses Act was repealed;
     • (ii) the HPRA commenced operation, including ss 3 to 81 and ss 83 to 170, which cover the provisions with respect to hearings into the professional conduct of health practitioners;
   • (b) between 1 July 2007 and 1 July 2010, when the HPRA applied; and
   • (c) after 1 July 2010, when the National Law applied.

1. Mr Omant's conduct prior to 1 July 2007 is governed by the transitional provisions of the HPRA. Section 169(1) of the HPRA makes the HPRA apply to activities of a registered health practitioner which occurred before 1 July 2007, in respect of which no investigation, inquiry, hearing or other proceeding had commenced under the Nurses Act, to the extent that there was power to conduct an investigation, inquiry, hearing or other proceeding under the Nurses Act.[80]
2. Section 169(2) makes provision for any determination or outcome into those activities to be one that would have been available as a finding or decision in an investigation, inquiry or hearing under the Nurses Act.
3. The effect of the transitional provisions is that in respect of Mr Omant's conduct prior to 1 July 2007, the Tribunal can make findings and determinations that were available under s 48(1) of the Nurses Act. Those findings are:
   • (a) that Mr Omant has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or
   • (b) that Mr Omant has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or
   • (c) that Mr Omant has not engaged in unprofessional conduct.
4. The definition of unprofessional conduct under the Nurses Act has already been set out in these reasons.[81]
5. The issue that arises is whether Mr Omant's conduct was unprofessional conduct of a serious nature, or whether it was not of a serious nature.
6. In Re Parr v Nurses Board of Victoria,[82] Justice Kellam stated:

In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend upon the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standard which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.[83]

1. In Kozeniauskas v Dental Practice Board of Victoria,[84] President Morris referred to the distinction between unprofessional conduct of a serious nature and unprofessional conduct:

Clearly enough, the difference goes to the gravity of the conduct and must depend upon, not only the facts of the case, but also the assessment of the conduct in the context of the conduct of professional practice generally.[85]

Mr Omant's conduct from 1 July 2007 to 1 July 2010

1. Mr Omant's conduct between 1 July 2007 and 1 July 2010 is governed by the transitional provisions of the National Law under the Health Practitioner Regulation National Law Regulations 2010 (Vic) ('the Regulations'). Regulation 30(1) of the Regulations makes the National Law apply if the Board received a notification about a registered health practitioner, and the subject matter of the notification happened while the health practitioner was registered under a corresponding prior Act. As a result, proceedings may be taken under Part 8 of the National Law in relation to Mr Omant's behaviour while registered under the HPRA as if he were registered under the National Law; provided that a notification could have been made and proceedings taken under the corresponding prior Act.[86]
2. Mr Omant's conduct between 1 July 2007 and 1 July 2010 is assessed against the findings and determinations that could have been made under the HPRA.
3. The effect of the transitional provisions is that in respect of Mr Omant's conduct between 1 July 2007 and 1 July 2010, the Tribunal can make findings and determinations that were available under s 77(1) of the HPRA. Those findings are:
   • (a) that Mr Omant has engaged in unprofessional conduct or professional misconduct; or
   • (b) that Mr Omant's ability to practise as a health practitioner is affected; or
   • (c) that Mr Omant's performance has been unsatisfactory; or
   • (d) that Mr Omant is not of good character.
4. The issue that arises is whether Mr Omant's conduct was professional misconduct or unprofessional conduct.
5. The definitions of professional misconduct and unprofessional conduct under the HPRA have already been set out in these reasons.[87]
6. The meaning of professional misconduct has been discussed in many cases.[88] In Campbell v Dental Board of Victoria,[89] Justice Mandie helpfully summarised many of the significant cases[90]:

Some early disciplinary legislation used the expression "infamous conduct in a professional respect" which had connotations of "disgraceful and dishonourable" conduct. In Epstein v Medical Board of Victoria ... Lowe J, after noting that the Allinson definition was not exhaustive, said:

... there may be cases of infamous conduct in which it is arguable that there is nothing unethical involved and no appeal to a moral standard. Such a case I should regard as existing where, there being no circumstances of emergency and proper equipment being available, a surgeon operated by a long abandoned technique or in an unclean manner, e.g. amputating a limb without an anaesthetic or without taking proper precautions for asepsis. I think I should emphasise too that it must be a rare case indeed, if such a case can exist at all, in which mere negligence which might found a claim against a medical practitioner for damages for negligence would amount to infamous conduct in a professional respect. This, of course, is far from saying that gross negligence might not amount to infamous conduct especially if such negligence was aggravated by lack of concern for the welfare of the patient.

It is convenient and relevant to note, also, that Lowe J said ...:

... but the ultimate question whether the conduct of the appellant which is challenged is infamous conduct in a professional respect must be decided by the Court on the evidence before it on the appeal. Where the matters involved in the judgment are medical matters, the Court will of course pay great attention to the opinion of the Board which is composed of medical experts of great eminence. (Emphasis added.)

The authorities were reviewed by O'Bryan J in Basser v Medical Board of Victoria and ... he stated a number of propositions which, so far as presently relevant, emphasised the element either of reckless indifference to the welfare of the patient or of "a high degree of negligence amounting to gross incompetence".

Turning to "professional misconduct" or "unprofessional conduct", in Ex parte Attorney-General re a Barrister and Solicitor, the ACT Supreme Court (Fox, Blackburn & Woodward JJ), referring among others to South Australian authority, said ...:

The expression `unprofessional conduct' was considered in Re R, A Practitioner of the Supreme Court and the following was said in the joint judgment of Murray C.J., Angas Parsons and Richards JJ.: `In our view `unprofessional conduct' is not necessarily limited to conduct which is "disgraceful or dishonourable", in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.' This statement was affirmed in Re - A Practitioner of the Supreme Court and the Full Court in that case added the observation: `... but the real standard is not any pedantic standard at all, but such a standard of conduct as commends itself to practitioners of good repute and good standing.' ... It is recognized that negligence and want of professional skill are not necessarily in themselves misconduct. In Re W.C. Moseley Street C.J., with whom Gordon and James JJ. concurred, said: `I agree that mere neglect or delay in the transaction of a client's business does not necessarily amount to misconduct of such a character as to be punishable by the court in the exercise of its disciplinary jurisdiction, but it may do so, and each case must depend upon its own circumstances. It may be difficult sometimes to know where to draw the line, but, wherever it should properly be drawn, I think that, in the present instance, the neglect was of such character, and took place in such circumstances, as to carry the case well over it and into the region of professional misconduct.' In Re a Solicitor Lord Denning M.R., with whom Karminski and Orr L.JJ. concurred, said: `In my opinion negligence in a solicitor may amount to a professional misconduct if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession."

In Pillai v Messiter (No.2), the New South Wales Court of Appeal considered the statutory test of "misconduct in a professional respect" under the Medical Practitioners Act 1938 (NSW). Kirby P said ... :

With the latest, and further, amendment it is arguable that the substitution of the new statutory test of `professional misconduct' may introduce for consideration a wider class of conduct than has hitherto been regarded as relevant. But that is a question which can remain for a future case. It may not be examined in this appeal, because of the way in which the case was conducted before the Tribunal. `Misconduct' means more than mere negligence: The words used in the statutory test (`misconduct in a professional respect') plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson, ... On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson ... Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson ... These are the approaches which have been taken in our courts. They have been taken in the courts of England where such misconduct is alleged. And they have similarly been taken in the courts of the United States. The entry in Corpus Juris Secundum... reads: `Both in law and in ordinary speech the term "misconduct" usually implies an act done willfully with a wrong intention, and conveys the idea of the intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.

It was not disputed that acts or omissions in the course of professional practice if so grossly negligent as to attract the strong reprobation of the professional brethren of good repute and competence might amount to misconduct in a professional respect, although wholly lacking in moral obliquity: Ex parte Meehan; Re Medical Practitioners Act; Re Anderson & the Medical Practitioners Act 1938-1964 and Qidwai v Brown. It is necessary, however, for professional reprobation to be established by the evidence of an appropriately qualified person or persons. Here the respondent relies upon, and only upon, the evidence of Professor Buchanan; and although the source was well qualified the testimony was insufficient.

In Adamson v Queensland Law Society Incorporated in the Queensland Full Court, Connolly and Ambrose JJ concurred in a judgment of Thomas J in which he said, following Ex parte Attorney-General, in relation to professional misconduct, that ... : "The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency".

I would respectfully take as a guide the South Australian test adopted by Thomas J in Adamson which I consider to be consonant with the lines of authority to which I have referred. However, no test should be treated as replacing the words of the statute itself, which should be applied in the light of the cases but in all the particular facts and circumstances of the case in hand. The authorities illustrate the variety of circumstances which arise and which colour the phraseology adopted in each case. It should also be remembered that, under the Act, professional misconduct may attract penalties ranging from a mere reprimand, a fine up to $1000 for a first offence, and a suspension for up to one year, on the one hand, and cancellation of registration, on the other. Clearly, whilst it is always a serious matter to conclude that professional misconduct has been committed, the range of penalties shows that the degree of seriousness of that misconduct may vary considerably.

1. Mr Omant's conduct from 1 July 2010 is considered under the National Law.
2. The available findings are set out in s 196 of the National Law. These are:
   • (a) that Mr Omant has no case to answer;
   • (b) that Mr Omant has behaved in a way that constitutes unsatisfactory professional performance;
   • (c) that Mr Omant has behaved in a way that constitutes unprofessional conduct;
   • (d) that Mr Omant has behaved in a way that constitutes professional misconduct;
   • (e) that Mr Omant has an impairment; and
   • (f) that Mr Omant's registration was improperly obtained.
3. The issue that arises is whether Mr Omant's conduct was professional misconduct or unprofessional conduct.
4. The definitions of professional misconduct and unprofessional conduct under the National Law have already been set out in these reasons.[91]

1. The only issue in contest before the Tribunal was whether the facts proven amount to professional misconduct or unprofessional conduct of a serious nature, or whether the facts amounted to no more than unprofessional conduct. There was no contest as to the facts underlying the allegations.
2. In the 9 December 2010 letter, the following submissions were made:

(1) the criminal conduct alleged does not bear on Mr Omant's conduct in employment and suitability to practice;

(2) the criminal charges relate to out of hours alleged conduct on a home computer, and not at work premises; and

(3) Mr Omant did not pose any serious risk to other persons relating to his place of employment.

1. Counsel for Mr Omant submitted to the Tribunal that Mr Omant's conduct did not amount to professional misconduct or unprofessional conduct of a serious nature for the following reasons:

(1) every allegation made against Mr Omant is founded on behaviour that did not occur in the workplace;

(2) Mr Omant was not affected by alcohol in the workplace;

(3) while Mr Omant used alcohol to excess, he ensured that his patients always received the appropriate level of treatment; and

(4) the offending happened when Mr Omant was drinking to excess but the events in question happened in isolation.[92]

1. Regarding these submissions, the Tribunal finds:

(1) while the criminal conduct alleged did not occur in his workplace or in the course of his employment, it is nonetheless very serious and does call into question his fitness for employment and suitability to practice in the nursing profession;

(2) while the criminal charges do relate to out of hours conduct on home computers and not at work premises, nonetheless they call into question Mr Omant's fitness and suitability for registration as a nurse;

(3) given his criminal conduct, albeit at home, his poor judgment and lack of standards over a period of 4 years, it cannot be said that Mr Omant does not pose a risk to other persons in his place of employment. Patients and families are entitled to expect the highest professional and moral standards of health practitioners in hospitals and clinics;

(4) the community has shown its disapproval of persons who obtain and possess child pornography by imposing a lifetime prohibition on working with children;

(5) while there is no evidence that Mr Omant was affected by alcohol in the workplace, Mr Omant by his own admission has a serious alcohol abuse problem; and

(6) while the offending happened according to Mr Omant when he was drinking to excess, the offending took place over a four year period and was continuing at the time of the execution of the warrant by police on 24 November 2010.

Allegation 1 - Conduct under the National Law on 27 May 2011

1. Allegation 1 involves two parts:
   • (a) whether Mr Omant's conduct was unprofessional conduct pursuant to paragraph (c) of the definition of 'unprofessional conduct' in s 5(1) of the National Law in that it was conduct of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's public peers by reason of his conviction for offences involving the use by him of a carriage service to access child pornography and the possession by him of child pornography; and
   • (b) whether Mr Omant's conduct was professional misconduct pursuant to paragraph (c) of the definition of 'professional misconduct' in s 5(1) of the National Law in that it was conduct of a health practitioner, whether occurring in connection with the practice of his health profession or not, which was inconsistent with him being a fit and proper person to hold registration in the profession.
2. There is no doubt that that Mr Omant's conduct is unprofessional conduct under paragraph (c) of the definition of 'unprofessional conduct' in s 5(1) of the National Law. He has been convicted of offences under the Criminal Code (Cth).
3. The only issue in dispute is whether the conduct goes beyond 'unprofessional conduct' and amounts to professional misconduct on the basis set out above.
4. In Hughes and Vale Pty Ltd v The State of New South Wales (No 2),[93] the High Court considered what was meant by the expression 'fit and proper person.' It was observed in that case that the purpose of the words was:

to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it' - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.[94]

1. In Nursing and Midwifery Board of Australia v Buckley,[95] a nurse was convicted of the criminal offence of downloading child pornography**.** He possessed approximately 10,000 images of child pornography on his computer. The least serious images were those of children under 16 who were naked or in a sexual pose, and the most serious were those of sexual penetration of children. Like Mr Omant, the nurse pleaded guilty to the offences he was charged with and was sentenced to 6 months imprisonment, but was released on the requirement that he was of good behaviour for 2 years.
2. The Tribunal in Buckley noted that the nurse's offence did not relate to his technical competence as a nurse, nor did it involve a breach of professional ethics such as inappropriate conduct towards patients. However, the crime he was convicted of was a serious matter. The children depicted in the images were the victims of an insidious industry and by downloading them, the nurse had participated in the degradation of the children involved. In the Tribunal's view, the nurse's offence went to his character and was relevant to his fitness to practise.[96]
3. The Tribunal in Buckley further noted that the nurse's offence had the potential to reflect adversely on the standing of the profession in the eyes of patients and the public.[97] The Tribunal pointed out that a great deal of trust is placed in a nurse by patients, family members of patients and other medical professionals. Conduct which casts doubt on a person's trustworthiness challenges their fitness to occupy such a position of trust.
4. In Legal Services Board v McGrath (No 2)[98], the court observed the seriousness of child pornography offences in relation to disciplinary proceedings:

Possession of child pornography is a callous and predatory crime.

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.[99]

1. In the present case, the Tribunal accepts the Board's submissions and finds that Mr Omant's conduct was inconsistent with him being a fit and proper person to hold registration in the health profession. Firstly, Mr Omant has pleaded guilty and been convicted of three criminal child pornography offences. In sentencing Mr Omant, Judge Chettle referred to some images as including the nastiest type of child pornography involving adult males sexually penetrating children's mouths, anuses and vaginas, while others depicted sadism and bestiality.[100] The nature of these offences is inconsistent with Mr Omant being a 'fit and proper person' to be registered as a health professional. Parliament has provided significant terms of imprisonment for child pornography offences, indicating that they are serious criminal offences. Mr Omant was given a custodial sentence; albeit he was released on a recognisance release order. He has been placed on the Sex Offenders Register for life.[101]
2. Secondly, Mr Omant's conduct is a serious departure from the standards of propriety expected in the community. The victims are vulnerable children. As a nurse, Mr Omant must be taken to have been well aware of the serious adverse impacts of the conduct depicted in the videos and images on the children involved.
3. Thirdly, the fact that Mr Omant has been convicted of three criminal offences carries a degree of disgrace in itself. [102]
4. Fourthly, it is well established that personal conduct is material in determining whether a practitioner is a fit and proper person to practise.[103] Although Mr Omant committed the offences at home, and not at his workplace, his conduct constitutes an egregious act of personal impropriety incompatible with the status of a fit and proper person. By his behaviour, Mr Omant has brought discredit, not just upon himself, but upon the nursing profession. Accessing and possession of child pornography is reprehensible, involving a serious assault and invasion of the rights of children. In every case there is a child victim whose life may have been seriously and adversely affected, and whose human rights and privacy have been grossly violated.
5. Fifthly, 'good character' of a person seeking to practice as a registered nurse involves a sense of 'moral strength'.[104] Accessing and possessing child pornography shows a clear lack of moral strength.
6. Finally, the misconduct in this case is not an isolated episode but a continuing pattern of conduct over a four year period. Over this lengthy period, Mr Omant had no regard for the interests of the children affected by the conduct. His conduct calls into question his ability to make sensible decisions and his ability to report instances of harm to children in the context of his profession. The misconduct is a defect of standard and character, and much more than an error of judgment.[105]
7. The primary purpose of the Tribunal's jurisdiction is to protect the public and ensure that the trust and confidence in the profession of nursing is maintained. In all of the circumstances, the Tribunal is satisfied that Mr Omant's conduct is inconsistent with him being a fit and proper person to hold registration in the nursing profession.

Allegation 2 - Conduct under the National Law between 1 July 2010 and 23 November 2010

1. The Tribunal accepts the submission of the Board and finds that Mr Omant has committed professional misconduct as defined in paragraph (a) of the definition of professional misconduct in s 5(1) of the National Law.
2. The Tribunal accepts the submissions made by the Board to the effect that:
   • (a) firstly, the nature of the offending was immoral, outrageous and disgraceful.[106] Notwithstanding that it occurred outside the clinical context of the practice of nursing, Mr Omant's conduct demonstrated that it is open to serious doubt whether Mr Omant has the qualities necessary to practice nursing;
   • (b) secondly, it involved the exploitation of children, a vulnerable group. While there was no physical contact between Mr Omant, or proximity between him and the child victims, that is to ignore the seriousness of the offences. The sexual gratification Mr Omant obtained from viewing the images[107] is associated with the exploitation of children and also highlights the doubt about his qualities and fitness to practice;
   • (c) thirdly, there were a very substantial number of child pornography videos and images located by the search of Mr Omant's property;[108]
   • (d) fourthly, a number of the images are of the most serious kind. There are level 5 images depicting sadism or bestiality, as well as others depicting the nastiest type of child pornography involving adult males sexually penetrating children's mouths, anuses and vaginas;[109]
   • (e) fifthly, Mr Omant is required to be registered as a sex offender and is required to report under that Act for life. He can never work with children. This recognises the legislative view of the seriousness of the crimes committed and the ongoing risk to children posed by Mr Omant;[110]
   • (f) sixthly, the public regard this type of offending as reprehensible and in contravention of public morality and standards of behaviour; and

(g) seventhly, the conduct does not meet the standard of professional conduct observed or approved by members of the profession because it 'would reasonably incur the strong reprobation of professional brethren of good repute and competence'.[111] The submissions of the Board are supported by the fact that Mr Omant's conduct is in contravention of the Australian Nursing and Midwifery Council's Code of Professional Conduct for Nurses in Australia[112] ('the Code') which sets minimum standards of conduct[113] expected of nurses as follows:

(i) conduct statement 8: nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care; and

(ii) conduct statement 9: nurses maintain and build on the community's trust and confidence in the nursing profession at all times.

1. Mr Omant's conduct also demonstrates a lack of recognition of his responsibility to prevent harm as provided for in standard 1.2 of the National Competency Standards for the Registered Nurse.[114]
2. The Tribunal finds that Mr Omant's conduct was of a most serious nature. Not only was it criminal conduct but it was also conduct which is unbefitting a nurse and which is the type of conduct which is destructive of the community's trust and confidence in the profession as a whole. It is conduct which falls at the most serious end of impropriety according to the evaluation of one's professional peers.[115] Mr Omant's conduct fell short , to a substantial degree, of the standard of professional conduct observed by members of the profession of good repute or competency. He has committed serious professional misconduct.

Allegation 3 - Conduct under the HPRA occurring between 1 July 2007 and 1 July 2010

1. The Tribunal accepts the submissions of the Board as to Allegation 3. Mr Omant's conduct constitutes professional misconduct under the definition in s 3(1) (b) of the HPRA. This also constitutes professional misconduct under the definition in s 3(1)(c) of the HPRA.
2. The Tribunal adopts its findings and reasons as given in [95] - [97] above.

Allegation 4 - Conduct occurring under the Nurses Act prior to 1 July 2007

1. The Tribunal accepts the submissions of the Board as to Allegation 4. Mr Omant's conduct is unprofessional conduct. It falls within the definition of unprofessional conduct in s 3(c), being a finding of guilt of indictable offences in Victoria. It also falls within the definitions of unprofessional conduct contained in s 3(1)(a), (b) and/or (d) of the Nurses Act, namely professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered nurse; professional misconduct which is of a lesser standard than that which might reasonably be expected of a registered nurse by his or her peers and professional conduct which is of a lesser standard than that which might reasonably be expected of a registered nurse by his or her peers.
2. The Tribunal is satisfied that the conduct of Mr Omant in relation to Allegation 4 is unprofessional conduct of a serious nature under s 48(1)(a) of the Nurses Act.
3. The Tribunal adopts its findings and reasons as given above in [95] - [97] regarding Allegation 2.

1. The Tribunal finds each of Allegations 1 to 4 proven to the standard of proof required under the Briginshaw test. It is satisfied in the case of each allegation to a comfortable level of satisfaction on the balance of probabilities consistent with the gravity of the allegations.
2. The proceeding will be listed for further hearing as to final orders for an estimated duration of one day.

[1] Parties' Statement of Agreed Facts dated 24 February 2015 ('statement of agreed facts').

[2] DPP v Omant (Unreported, County Court of Victoria, Chettle J, 27 May 2011) ('sentencing remarks') [33].

[3] Statement of agreed facts [25]-[26].

[4] Omant v Nursing and Midwifery Board of Australia [2014] VSC 512 ('Omant').

[5] Applicant's Amended Notice of Allegations dated 22 April 2015 ('amended allegations').

[6] See Dewan v Medical Board of Australia [2011] VSC 588 [14]; Omant [17]-[21].

[7] [1960] HCA 40; (1960) 104 CLR 186.

[9] [2011] VSCA 241.

[10] Ibid [73], referring to Law Society (SA) v Murphy (1999) 201 LSJS 456, 460-1. See also New South Wales Bar Association v Evatt (1968) CLR 177, 183-184; Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215[28]; Ha v Pharmacy Board of Victoria [2002] VSC 322 [92]-[95].

[11] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw test').

[12] [2013] VSCA 305; (2013) 306 ALR 125.

[13] Ibid 137 [38] - [39], referring to Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388.

[15] [sic] correct date is 23 February 2009.

[16] [sic] correct term is recognisance.

[17] Letter from Penny Savidis to Richard Mullaly dated 9 December 2010 ('9 December 2010 letter').

[18] Record of Conversation, Federal Agent Katherine Fitzpatrick, dated 24 November 2010 ('record of conversation').

[20] Transcript of hearing on 23-24 April 2015 ('Transcript') 30 ln 25.

[26] Ibid 24 ln 31, 25 ln 1-9. This contradicts Mr Omant's record of conversation.

[27] Ibid 26 ln 12. This contradicts Mr Omant's record of conversation.

[31] Forensic Psychological Risk Assessment dated 7 May 2013 ('first report').

[32] Forensic Psychological Risk Assessment Supplementary Report dated 31 March 2015 ('second report').

[40] Ibid. This contradicts Mr Omant's record of conversation.

[54] Second report [28]. Dr Owen acknowledged during cross-examination that she did not have the opportunity to discuss this with Mr Omant, but had become aware of this as a result of ASI testing.

[55] Ibid. Dr Owen stated in cross-examination that she believed this was in relation to the offending period.

[61] Ibid [89]. This was contradicted by Mr Omant's evidence, see transcript 33 ln 14-16.

[63] Ibid 69 ln 18-20. This was contradicted by Mr Omant's evidence, see transcript 33 ln 14-16.

[66] Gamma-Glutamyl Transpeptidase (GGT) testing measures the amount of GGT enzyme in the blood.

[68] Re: Mr Peter Omant dated 16 February 2011 ('February 2011 report').

[69] Report on Mr Peter William Omant dated 24 November 2014 ('November 2014 report').

[70] This was contradicted in oral evidence, see transcript 117 ln 15-16.

[79] The Tribunal takes the substance of this allegation to be that Mr Omant possessed the downloaded child pornography over the period covered by the allegation.

[80] There was power to conduct an investigation, inquiry, hearing or other proceeding under the Nurses Act pursuant to the provisions set out in Parts 3 and 4 of the Nurses Act.

[82] (1998) 16 VAR 118.

[84] [2005] VCAT 1058.

[86] A notification could have been made under the HPRA pursuant to s 42(1)(b) or (c). The Board had power to refer the matter to VCAT for determination under s 59(2) HPRA.

[88] See also Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755; Epstein v Medical Board of Victoria [1945] VicLawRp 54; [1945] VLR 309; Ex parte Attorney-General re a Barrister and Solicitor (1972) 20 FLR 234; Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953; and Pillai v Messiter (No.2) (1989) 16 NSWLR 197;

[89] [1999] VSC 113.

[90] Ibid [17] - [24] (citations omitted); followed in Vissenga v Medical Practitioner Board of Victoria [2004] VCAT 1044 (Morris P).

[93] [1955] HCA 28; (1955) 93 CLR 127.

[95] [2010] QCAT 392 ('Buckley').

[98] [2010] VSC 332.

[99] Ibid [24], referring to R v Booth [2009] NSWCCA 89 [40]-[43].

[100] Sentencing remarks [9]-[10], [26].

[102] Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279.

[104] Ex parte Tziniolis (1966) 84 WN(NSW) (part 2) 275 at 277, cf. In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 426.

[105] HCCC v Schmidt [2009] NSWNMT 19 referring to HCCC v Meyer [2008] NSWNMT 22 [78].

[106] Roylance v General Medical Council [1999] UKPC 16; [2000] 1 AC 311, approved in Re Provan (2005) PRBD (Vic)(3) and Re Stephanopoulos (2005) MPBV 12.

[107] This is inconsistent with Mr Omant's record of conversation. See Q359-365

[110] Legal Services Board v McGrath [2010] VSC 266 [35], referring to Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323.

[111] Wong v Commonwealth of Australia [2009] HCA 3; (2009) 236 CLR 573 at 594, referring to Qidwai v Brown [1984] 1 NSWLR 100, 105.

[112] Nursing and Midwifery Board of Australia, Code of Professional Conduct for Nurses in Australia (August 2008) www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Codes-Guidelines.aspx

[113] It is noted that under the Code, 'professional misconduct' refers to 'the wrong, bad or erroneous conduct of a nurse outside the domain of his or her practice; conduct unbefitting a nurse (eg. sexual assault, theft, or drunk and disorderly conduct in a public place).

[114] Nursing and Midwifery Board of Australia, National Competency Standards for the Registered Nurse (January 2006) www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Codes-Guidelines.aspx

[115] Qidwai v Brown [1984] 1 NSWLR 100, referring to Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30, 35-36.