Nursing and Midwifery Board of Australia v Rayner [2025] QCAT 157

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Craig v Medical Board of South Australia [2001] SASC 169; [2001] 79 SASR 545

Nursing Midwifery Board of Australia v Horne [2020] TASHPT 7

Nursing Midwifery Board of Australia v Palle (Review and Regulation) [2021] VCAT 1009

Medical Board of Australia v CDA [2023] ACAT 64

• [1] The respondent is a very experienced nurse and midwife. He obtained dual registration with the Nursing and Midwifery Board of Australia ('Board') in 1980. He is presently 69 years of age. Leading up to 1 December 2021, the respondent had been employed as a nurse educator by Mater Health in Brisbane. On that morning, he was supervising four young student nurses who were completing a component in a clinical skills workbook entitled "Improvement of Communication with Aboriginal and Torres Strait Islander clients". The students were then in a placement in a suburban nursing home. As the respondent knew, one of the young students, Miss AB, identified as Aboriginal. In material filed with the Tribunal, the respondent says he regarded her as an exceptional student.
• [2] The Board alleges that during the session the respondent made culturally unsafe comments or used culturally unsafe language directed towards Miss AB, and in the presence of the other students, none of whom identified as Aboriginal and/or Torres Strait Islander.
• [3] What was said by the respondent is contested although he admits that during the session he:[1]

did fail to practice in a culturally safe and respectful way to the extent that when speaking with students for whom he had been teaching responsibility/supervision (sic), he made culturally unsafe comments and/or used culturally unsafe language.

• [4] This concession relates to admissions he has made in an Agreed Statement of Disputed Facts ('ASDF') filed by the parties:[2]

During the discussion, the respondent made inappropriate comments variously relevant to the topic of discussion, being Aboriginal and Torres Strait Islander clients. In this discussion, the respondent:

(a) stated that 'today's people are too sensitive';

(b) engaged in a discussion surrounding the topic of African American rappers and their preferred nomenclature for themselves and each other;

(c) sought to facilitate a discussion amongst the group of students as to why certain words were used amongst African American rappers so freely in circumstances where he had no understanding of the subject matter and was seeking guidance from students;

(d) asked Miss [AB] the process of how to identify as Aboriginal as he felt he wanted to explore possible Aboriginal parentage;

(e) asked Miss [AB] how the different boundaries were delineated on the Tindale Language map (known as the Australian Institute of Aboriginal and Torres Strait Islander Studies map of Indigenous Australia map) and how Aboriginal people determined tribal zones; and

(f) sought to discuss genomics of "Original Australians vs Torres Strait Islanders".

• [5] The Board acknowledges that the seriousness of the allegations and gravity of the consequences for the respondent require the Tribunal to be satisfied to a high degree of certainty on the balance of probabilities.[3]
• [6] The factual allegations are set out in the disciplinary referral application filed in the Tribunal on 26 September 2023 ('Referral').[4] They are based substantially on a statement dated 1 December 2021 by Miss AB which she forwarded to the Office of the Health Ombudsman on 6 December 2021.[5]
• [7] Miss AB has not provided a statement in these proceedings however, the other 3 students who were present have co-operated with Ahpra, and the Board relies on this evidence to support the allegations of fact in the Referral.
• [8] Mr Jackson on behalf of the Board has helpfully provided a diagram which he submits is objectively supportive of the primary allegations of fact which are contained in the initial statement of Miss AB.
• [9] Mr Maguire in his submissions on behalf of the respondent does not really engage in this process. That is not a criticism of him. As will be demonstrated, and as submitted by the Board, the respondent has, throughout the drawn-out process leading to the hearing, avoided acknowledging or stating what he says was actually said by him during the session apart from denying that he used certain words.
• [10] For example, in a letter sent to Ahpra on his behalf by a lawyer on 19 January 2022, by reference to one of the allegations of fact, the respondent's position is put in this way:[6]

Allegation 1c "We are in a time and age where white people are less privileged than black people"; or words to this effect. "Like the word nigger, black people call each other nigger but I can't call them nigger"; or words to this effect.

Our client strongly denies the assertion that these words were used in the discussion of 1 December 2021.

For the avoidance of doubt, our client expressly states that no such words were used by him in any conversation that took place on 1 December 2021, or at all during his employment.

Allegation 1d "I don't see why I can't use the word nigger when they call each other niggers, niggers used in rap music and I hate rap" or words to this effect.

Our client asserts that there was general discussion surrounding the topic of African American Rappers, and their preferred nomenclature for themselves and each other.

Our client denies the assertion that he at any time used the words "Can't see why he can't use the word nigger" and that he "hates rap".

Our client asserts he was genuinely interested as to why certain words were used amongst African American Rappers so freely.

Our client further states that he sought to gain a further understanding as to why this was the case by raising the question amongst the group in order to facilitate discussion.

• [11] One of the other students Mr CD, provided a statement dated 2 December 2021 to Miss AB at her request which she included in her notification on 6 December. He supplied a statement to Ahpra dated 12 August 2022[7] which is substantially in the same terms as his earlier statement. He was not required for cross examination.
• [12] Mr CD states:

At approximately 10.55am, Greg Raynor began to talk about the [Clinical Skills Assessment] and began to tell us some of his personal experiences he has had regarding friendships and other life experiences with people who identify as Aboriginal and/or Torres Strait Islander.

During these conversations Greg mentioned that "now day's black people have more rights than white people". This then led to a conversation to how black people can say "nigger", however if he was to say this word he would then get in "big trouble". It was at this point when Jennifer said that "this conversation is inappropriate and needs to stop".

• [13] One of the other students Ms EF, provided a statement to Ahpra on 7 July 2022.[8] Again, her evidence is not challenged. On this discrete issue (as to whether the respondent used the offensive word "nigger" or "niggers") she states:

At one stage before the conversation about Indigenous people had started, we were talking about music that is inappropriate, Greg said he didn't like rap music but that rappers used derogatory terminology like "nigger". He asked me "why is it that they can sing it but we cannot?". I replied to Greg that it is never ok to use that language and the conversation moved to a different topic.

• [14] The other student Ms GH provided a statement dated 22 August 2022.[9] She recalls very little of what was said.
• [15] Another example relates to the allegation that during the discussion involving Miss AB and the other students, the respondent used the words "half cast" and "quarter blood". In a very early response to this allegation, in his lawyer's response to Ahpra on 19 January 2021,[10] he denied using these words. Both Mr CD[11] and Ms EF[12] recall that he did use these words during the discussion.
• [16] The respondent also denies that he said words to the effect questioning Miss AB's Aboriginality on the basis of her appearance. He says that he asked Miss AB "the process of how to identify as Aboriginal as he felt he wanted to explore possible Aboriginal parentage".[13] Ms EF recalls a conversation initiated by the respondent when he asked "how do I know I'm not Indigenous?". She says nothing about the respondent questioning Miss AB's heritage. Mr CD recalls the respondent asking Miss AB if she identified as Aboriginal.
• [17] What is striking about this aspect of the discussion, is how inappropriate it was for the respondent to initiate such a discussion with a young Aboriginal student who he was supervising.
• [18] Both Mr CD[14] and Ms EF[15] recall Miss AB asking the respondent to stop. In his lawyer's response on 19 January 2022, the respondent asserts that he did not hear this from Miss AB. He does admit (as he must) that Miss AB did leave the room in distress "due to being upset by the respondent's comments".[16]
• [19] The respondent admits that he asked Miss AB:[17]

how the different boundaries were delineated on the Tindale Language Map (known as the Australian Institute of Aboriginal and Torres Strait Islander Studies map of Indigenous Australia map) and how Aboriginal people determined tribal zones.

• [20] In his lawyer's letter the respondent denied that he said words to the effect "Look at the ATSI map, the boundary for the different tribes, I don't believe they are correct", and "How do they really know where the boundaries are for the tribes when there were no town planners".[18]
• [21] Both Mr CD[19]and Ms EF[20] say he did query the accuracy of the Australian Institute of Aboriginal and Torres Strait Islander Studies map of Indigenous Australia in conversation with Miss AB and the others.
• [22] I accept the evidence of the students Mr CD and Ms EF. I am satisfied that the respondent, in the various responses referred to above, has not engaged in what was actually said by him, albeit accepting the context and the underlying themes of the discussion particularized in the Referral. The words and phrases used by the respondent as heard by Mr CD and Ms EF objectively provide broad support for the sequence, content and style of the exchange that occurred between the respondent and Miss AB as alleged in Ground 1 of the Referral.

• [23] The Board submits that the proved conduct constitutes professional misconduct as defined in paragraphs (a) and (c) in section 5 of the Health Practitioner Regulation National Law (Queensland) ('National Law'). The respondent submits that his conduct is captured by the definition of unprofessional conduct in section 5.
• [24] Necessarily, the focus is on the whether or not the Board has proved that the conduct was "substantially" below the standard reasonably expected of a registered nurse of an equivalent level of training or experience.
• [25] It does not seem to be contested that by his conduct, the respondent breached a number of codes that applied to him at the time, particularly the Board's Code of conduct for nurses ('Code of Conduct').[21] I agree with the Board that the respondent's use of words (as proved as opposed to as admitted) heard by the two students plainly offends the requirement that he adopt "practice that respects diversity, avoid[s] bias, discrimination and racism"[22] and "creates a positive, culturally safe work environment through role modelling, and supporting the rights, dignity and safety of others, including people and colleagues"[23]. In relation to his role as a supervisor at the time, he clearly failed to plan how he would teach the component and, as a result he was in breach of cl 5.1(b) of the Code of Conduct.
• [26] The Code of Conduct is an important instrument as it is admissible in proceedings of this nature as "evidence of what constitutes appropriate professional conduct or practice", in this case in relation to the nursing profession.[24]
• [27] In addition, the Tribunal has the benefit of the evidence of an expert:[25] Leslie Salem AM who is a Wonnarua woman and a registered nurse. Her evidence and expertise are not contested by the respondent and I accept it. Her report relates to the factual matters set out in Ground 1 of the Referral, and necessarily her opinion evidence must be read in light of the findings of fact set out above.
• [28] At all times, the respondent as a health practitioner was also subject to the overarching provisions of the National Scheme's Aboriginal and Torres Strait Islander Health and Cultural Safety Strategy promulgated by Ahpra and applicable from 2020 ('NSS').
• [29] I accept the experts evidence that, by reference to the Code and to the NSS, the respondent's conduct was seriously unprofessional in that (inter alia) he did not seem to appreciate or understand that his approach was infected by his own bias and assumptions, involving as it did stereotyping and the use of offensive racially inappropriate terms; in the context of a power imbalance between him as an experienced and senior nurse educator and Miss AB in particular, but the other students as well. He did not appreciate that, in embarking on the discussion in the terms proved, he had created a culturally unsafe environment for the young Aboriginal student Miss AB, and the others who also felt uncomfortable on her behalf. He clearly had not prepared for the session which was directed at cultural competency and communication in relation to patients who identify as Aboriginal and/or Torres Strait Islander. He was the one who lead the conversation, raised topics and used words that objectively were apt to cause offence and distress, which they did directly to Miss AB and indirectly to at least two of the other students.
• [30] The respondent's contrary submission seems to be to the effect that, having regard to the context and some of the comments of Mr CD and Ms EF, his conduct should be considered unprofessional conduct and not professional misconduct. In essence, the respondent refers in particular to matters raised by Ms EF in her evidence. For example, Ms EF, who is not of Aboriginal or Torres Strait Islander heritage, but who is a person of colour, says that she did not regard the discussion as confronting and thought it was open until Miss AB became irritated and appeared to regard the respondent's comments as a personal attack on her. She was complimentary because after Miss AB had left, the respondent seemed to realise that he had said inappropriate things and wanted immediately to apologise. She was impressed because the respondent reflected and asked for feedback - albeit after Miss AB had left. As Mr Jackson observed, what is concerning about this is that it was the students, in particular Ms EF and Mr CD, who picked up on Miss AB's distress, and it was the students who told him that what he had said was inappropriate. In other words, this was a senior supervisor being told that his conduct was inappropriate by young students in his care, which it clearly was, but which he only appreciated after being told so by the other students.
• [31] Ms EF also says that she was pressed by Miss AB to provide a statement which she wanted to be sent to her first which Ms EF refused to do. It is not relevant in these proceedings as Miss AB has not provided a statement. It is very difficult to assess the respondent's state of mind at the time. He has not filed a statement of evidence in these proceedings. He is not obliged to do so, however it leaves the Tribunal to draw inferences and make findings of fact on the basis of the evidence that is before it bearing in mind the wide ambit of section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). What is important is that this senior nurse in a role supervising and teaching young nursing students, one of whom he knew identified as an Aboriginal person, in a module directly dealing with culturally appropriate communications with Aboriginal and/or Torres Strait Islander patients, said things which were culturally inappropriate, objectively offensive and unsafe which caused actual distress to Miss AB.
• [32] Whatever the state of mind of the respondent at the time, what is clear is that not only did his conduct breach various provisions of the Code of Conduct, the comments in context were also objectively offensive.
• [33] I am satisfied that the proved conduct satisfies the section 5(a) definition of professional misconduct under the National Law. In my opinion, it is not fair to regard each culturally unsafe comment as a separate instance of unprofessional conduct. The conduct should be fairly viewed as one course of conduct over a very short period of time, so section 5(b) is not engaged.

• [34] The main principle of administrating the National Law is that the health and safety of the public are paramount. However, it also relevant in the context of this case, that ss 3A(2)(aa)(i)-(ii) states that one of the 'guiding principles' of the National Law is that:

(aa) the scheme is to ensure the development of a culturally safe and respectful health workforce that -

(i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and

(ii) contributes to the elimination of racism in the provision of health services.

• [35] The purpose of the disciplinary proceedings is protective, not punitive. The imposition of a sanction may serve one or all of the following purposes:[26]

(a) preventing practitioners who are unfit to practise from practising;

(b) securing maintenance of professional standards;

(c) assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;

(d) bringing home to the practitioner the seriousness of their conduct;

(e) deterring the practitioner from any future departures from appropriate standards;

(f) deterring other members of the profession that might be minded to act in a similar way; and

(g) imposing restrictions on the practitioner's right to practise so as to ensure that the public is protected.

• [36] The appropriate sanction is to be considered at the time of making the sanction and not at the date of the conduct.
• [37] The Board submits that there are factors in this case that would lead the Tribunal to be guarded about the degree of insight and remorse demonstrated by the respondent as established by the material in the hearing brief. It is clear that the respondent realised almost immediately after Miss AB had left the room on 1 December 2021 that he had transgressed. As mentioned earlier, it appears that Miss AB's young colleagues realised that the session had intruded into inappropriate topics, and it was them who counselled the respondent that he had used inappropriate language which had upset Miss AB.
• [38] Since then, as demonstrated above, the respondent has not engaged with what words and phrases he actually used. The letter from his lawyer dated 19 January 2021 is an early example of this proposition. Another example is an unsigned statement provided to Ahpra on behalf of the respondent in November 2022.[27] At that time he appears to have had access to the statements of the other three students, and at paragraphs 3 and 4 of that letter he engages in an attack on Miss AB's credit. It is correct that Ms EF did say uncomplimentary things about the complainant - to the effect that she wanted to "get" the respondent, he "is in the shit", and "you won't be seeing him again", and that she (Ms EF) thought the respondent was sincerely sorry for upsetting Miss AB, and that Ms EF should have remained to hear his apology. As demonstrated above, by reference to what the other students recall the terminology used by him, the respondent has never appropriately engaged with his misconduct, and it does suggest, at the very least, a lack of insight and remorse that is guarded in that he tends to focus on the effects on him rather than on the effects of his language on his young student.
• [39] He did text an apology to Miss AB immediately after the event, and he also provided an apology,[28] however, as with the lawyer's letters discussed above, he was during the same general time period saying things to investigators that place blame on Miss AB. For example, in an email to an Ahpra investigator on 8 March 2022,[29] the respondent wrote:

I am respectfully requesting for your Department to consider including a request for an enquiry/statement from Mater Education regarding [Miss AB's] personal conduct within her Faculty as it may point to other "root causes" to her overall demeanour and catalyst behind her initial complaint about me.

• [40] As well as the complaint to the respondent's employer made on the day, and the notification to the Office of the Health Ombudsman on 6 December, Miss AB made a complaint to the Human Rights Commission ('HRC'). This appears to have been resolved by an apology from the respondent but it is not clear on the material. The respondent resigned from his employment on 22 February 2022 which ended the industrial investigation by the employer. Ahpra attempted to obtain documents from the HRC but were met with a claim of privilege.[30]
• [41] The Tribunal was told by Mr Maguire that the respondent is working as a registered nurse with a private company that provides health services to mining camps in western Queensland. He has a mortgage and repayments of $3,500 per month and he also has prostate cancer. In his unsigned letter to Ahpra around October/November 2022, the respondent raised health issues for the first time as being a possible reason for his behaviour on 1 December 2021.[31] He referred to back pain and medication he was taking at the time.
• [42] There is also a psychologist's report dated 27 September 2022.[32] At that time, she had seen the respondent on four occasions. Not surprisingly, she says that he was then suffering from an adjustment disorder with associated depression and anxiety "related to the loss of his substantive position at the Mater as a nurse educator after allegations were made by a student."
• [43] He has provided statements from Aboriginal friends from his childhood which are supportive.
• [44] He had been in practice for decades without any disciplinary questions. He should get benefit for co-operating with the disciplinary process which has meant that witnesses, such as the young students, have not been required give oral evidence and be cross-examined.
• [45] He is in the twilight of his career and it is sad that this has happened.
• [46] The Code of Conduct and the NSS indicate the importance of culturally safe communication by nurses with people who identify as Aboriginal/ Torres Strait Islander. The conduct proved in this case is conduct that is apt to undermine public confidence in a profession which sits at the apex of the health system in our country. The paucity of comparable decisions suggests that culturally unsafe practice is not common although that may not be an appropriate measure. What is important is that the sanction imposed by the Tribunal is likely to discourage such conduct by other nurses, and to support public confidence in the profession.
• [47] I agree with the parties that Medical Board of Australia v CDA [2023] ACAT 64 ('CDA') is the closest comparable decision. Nursing Midwifery Board of Australia v Horne [2020] TASHPT 7, and Nursing Midwifery Board of Australia v Palle (Review and Regulation) [2021] VCAT 1009 are examples of objectively much more serious conduct.
• [48] The Board submits that, by reference to the aggravating factor that the respondent was the student's supervisor at the time he engaged in the proved conduct, this case is even more serious than CDA where a 12-month suspension was imposed along with a reprimand. Mr Maguire argues that CDA is objectively much more serious and that the principles of general and specific deterrence can be met by a reprimand with a condition imposed on his registration in terms annexed to Mr Jackson's submission.
• [49] CDA involved a doctor engaging in what Mr Jackson correctly describes as overt racism directed firstly at an eminent Aboriginal colleague who he did not know, then to Ahpra staff during the investigation about his colleague and Ahpra itself.
• [50] Mr Jackson helpfully summarised the agreed facts in that case in his outline and I adopt those as being accurate and succinct. Firstly, in communications with KR (his colleague who he did not know) the respondent described KR as "like a watered down bottle of grange. Not the real thing." And then: "I have attached photos of what real aboriginals look like just to remind you."
• [51] And to Ahpra staff about KR and Ahpra itself:

(a) KR is a "dick head" and claims to be indigenous but he is not;

(b) KR has "run to mummy" and "is going to cry racism";

(c) KR is "riding the aboriginal bandwagon and census numbers are elevated";

(d) the half - bloods" like KR are just "after the kudos they self-generate" and "play on the heart strings of the stolen generation and other lies";

(e) if white men had not come to Australia, KR would not have been born;

(f) "This is a trivial complaint. The Board is a pack of fuckwits".

• [52] And again, later to Ahpra that KR was a "fake aboriginal" and "Ahpra is a gestapo".
• [53] In my opinion, this simple summary establishes that the comments made by the practitioner were much more offensive than the comments made by the respondent in this case. The Board does not suggest that the respondent here made deliberately racist comments or engaged in racially discriminatory conduct. It is aggravating that he said these things to a young Aboriginal student who he was then supervising. His conduct was reckless and insensitive but not deliberately racist like the respondent in CDA.
• [54] In that case, the parties had proceeded on the basis of an agreed set of facts and agreed sanction. The Tribunal agreed that the agreed period of disqualification from applying for registration for 12 months was appropriate. The practitioner had surrendered his registration and provided the Board with an undertaking not to seek registration. In this case, no immediate action was taken and the respondent was not subject to any conditions on his registration leading up to the hearing.
• [55] The issue of a suspension has caused me serious concern because of the need to condemn such conduct. As against that, the respondent has had a very long and exemplary career, and voluntarily resigned a position he loved in the wake of the multiple investigations which were instituted following the events of 1 December 2021. Given his age, and these reasons, it is improbable that he will ever be put in a position to have supervision over students. His experience in the wake of his conduct, should be a salutary tale to anyone in the profession who might intrude into culturally unsafe practice.
• [56] It is always essential that Tribunals such as this one should not exercise the sanction discretion in such a way as to be punitive in an individual case. For these reasons, I have decided not to include a period of suspension in the orders.
• [57] A reprimand is a significant sanction. It is notified publicly for up to five years. Specific deterrence can be met here by imposing the education condition annexed to Mr Jackson's outline.

[1] Hearing Brief filed in the Tribunal on 28 March 2025 p 322 ('HB'). The words reflect the primary allegation in the referral.

[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362.

[5] Which initiated the disciplinary process which was referred by the OHO to the Board for investigation, see ibid pp 33-34.

[13] Admitted fact, see ibid p 19 [8(d)].

[14] Ibid pp 59-60 [6], [9] respectively.

[16] Admitted fact, see ibid p 19 [9].

[21] Effective from 18 March 2018 ('Code of Conduct').

[24] Health Practitioner Regulation National Law (Queensland) s 41.

[25] Expert Witness Statement contained in the HB (n 1) pp 259-300.

[26] Craig v Medical Board of South Australia [2001] SASC 169; [2001] 79 SASR 545, 553-555.

[31] Ibid pp 142, and particularly 143 [5].