1. Peter William Omant is reprimanded as to each of Allegations 1 to 3 of professional misconduct and as to Allegation 4 of unprofessional conduct of a serious nature.
2. The registration of Peter William Omant shall be subject to the following additional conditions:

1. commencing from the date of these orders, to undertake psychotherapeutic counselling from a suitably qualified mental health professional approved by the Nursing and Midwifery Board of Australia ('the Board') which meets the following requirements: 1. the sessions shall be at least monthly, for a period of not less than twelve months from the date of these orders; 2. the sessions shall be directed primarily at the exploration and treatment of Mr Omant's attraction to child pornography, including issues of victim identification and empathy in that context, and at his reaction to social and employment stressors; 3. Mr Omant is to ensure that the counsellor provides reports to the Board every three months; 4. the reports of the counsellor are to detail Mr Omant's attendance at, and participation in, the counselling sessions, the topics discussed, and Mr Omant's insight into the issues arising in the session; and 5. all costs associated with compliance with this condition are to be borne by Mr Omant. 2. during the first two years of employment as a nurse, to submit to random breath testing for alcohol, to be administered by a suitably qualified professional approved by the Board which meets the following requirements: 1. the testing is to be conducted at least weekly during the first three months of his employment, after which it is to be conducted monthly until the end of his second year of employment; 2. the testing is to be conducted before Mr Omant commences working a shift or at any other time as determined by his work supervisor or supervisors; 3. if the measured blood alcohol concentration (BAC) figure is above 0.0, Mr Omant is not to work his shift, and is required to bring the matter to the attention of the Board within three days; 4. a log is to be kept, recording at a minimum the date and time of the test and the measured BAC figure; 5. Mr Omant is to ensure that the log is provided to the Board every three months; and 6. all costs associated with compliance with this condition are to be borne by Mr Omant.

1. Mr Omant is not permitted at any time to engage in direct or assisted nursing care of a child or of any persons under the age of eighteen years;

1. for a period of two years from the date of these orders, Mr Omant is not permitted to work any shift commencing on or after 6.00 pm and finishing before 7.30 am on the following day; 2. Mr Omant must, within five business days of gaining employment as a nurse, notify the Board in writing of: 1. the name and address of his employer; 2. the address of his place of employment as a nurse; 3. the position description at his place of employment; and 4. the name and contact telephone numbers of his supervisors at his place of employment. 3. Mr Omant must provide to his employer or any relevant nursing agency making arrangements for his employment, prior to commencing that employment: 1. a copy of the orders and reasons of the Tribunal dated 3 July 2015; and 2. a copy of these orders and reasons dated 12 October 2015.

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. Since 13 December 2010, Mr Omant's registration has been subject to a 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.[2]

1. 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 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.[3] The suspended sentence expired on 26 May 2013.
2. 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').[4]
3. 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.
4. 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.[5]
5. On 3 July 2015, the presently constituted Tribunal published its orders and reasons following a two day hearing. The Tribunal found that Mr Omant had engaged in professional misconduct as alleged by the Board in respect of Allegations 1-3, and unprofessional conduct of a serious nature as alleged by the Board in respect of Allegation 4.[6]
6. The Tribunal ordered that the proceeding be listed for a further hearing as to final orders.
7. On 7 September 2015, the Tribunal heard submissions from the Board and Mr Omant as to the final orders that should be made.

1. It is unnecessary to set out all of the findings of fact in the previous reasons as to Mr Omant's conduct. The following findings by the Tribunal are significant:

(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.[7]

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. 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.

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.

Thirdly, the fact that Mr Omant has been convicted of three criminal offences carries a degree of disgrace in itself.

Fourthly, it is well established that personal conduct is material in determining whether a practitioner is a fit and proper person to practise. 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.

Fifthly, 'good character' of a person seeking to practice as a registered nurse involves a sense of 'moral strength'. Accessing and possessing child pornography shows a clear lack of moral strength.

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.[8]

1. The Tribunal has powers to make orders under s 196(2) of the National Law, s 77(4) of the Health Professions Registration Act 2005 (Vic) ('HPRA') or s 49 of the Nurses Act 1994 (Vic) ('the Nurses Act').[9]
2. Section 196(2) of the National Law provides:

If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

1. The HPRA was repealed on 1 July 2012 by the Health Professions Registration (Repeal) Act 2012. Section 77(4) provided:

VCAT may make one or more of the following determinations with respect to a health practitioner -

(a) require the health practitioner to undergo counselling;

(d) require the health practitioner to undertake and complete specified further education or training within a specified period;

(e) impose any condition on the registration or endorsement of registration of the health practitioner;

(f) impose a fine on the health practitioner of not more than $50 000 to be paid to the responsible board;

(g) suspend the registration of the health practitioner for the period specified in the determination;

(h) cancel the registration of the health practitioner;

(i) order that the practitioner undertake a specified period of practice under specified supervision;

(j) order that the practitioner do or refrain from doing something in connection with the practice of his or her health profession;

1. The Nurses Act was repealed on 1 July 2007 by the HPRA. Section 49 provided:

(1) After considering all the submissions made to a formal hearing into the ability to practise of a registered nurse, the panel may find that -

(a) the ability of the nurse to practise is affected because -

(i) of the physical or mental health of the nurse; or

(iii) the nurse is an alcoholic or drug dependent person; or

(2) If the panel makes a finding under sub-section (1), the panel may make one or more of the following determinations -

(a) to impose conditions, limitations or restrictions on the registration or endorsement of registration of the nurse;

(b) to suspend the registration or endorsement of registration of the nurse for the period and subject to the conditions, limitations and restrictions, if any, specified in the determination.

The jurisdiction of the Tribunal is protective, not punitive. In Clyne v New South Wales Bar Association, [10] 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.[11]

In Legal Services Commissioner v Brereton, [12] 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.[13]

The Tribunal has an important role in maintaining public confidence in the reputation of the nursing profession [14]

1. The Board made the following submission as to its role in protecting the public:

Members of the public are entitled to trust and rely on the Board to take steps to protect them as regulator of nurses. The Board takes this role very seriously. The public interest in the practitioner remaining in practice must be weighed against the public interest in protecting patients and ensuring that patients are able to rely on the Board to appropriately regulate practitioners.[15]

1. As to the seriousness of the offending conduct of Mr Omant, the Board submitted:

Offences of child pornography are not victimless crimes. The victims are children who are sexualised and subjected to abuse. Any determination in this case should reflect the severity of the offences with which Mr Omant was convicted. It should appreciate the need to deter others from engaging in similar conduct and take into account the extreme violation of the victims for Mr Omant's own sexual gratification. Any determination needs to ensure that Mr Omant appreciates the extreme professional consequences of his actions. It needs to send a clear message also to the profession and to the community, that Mr Omant's behaviour was unacceptable and will be treated as such.[16]

1. The Board noted that Mr Omant had not been permitted to practice nursing for a period of almost five years. It did not press for cancellation of Mr Omant's registration or for a further period of suspension of registration. However, it submitted that conditions should be placed on Mr Omant's registration primarily for the following reasons:
   • (a) he remains at risk of re-offending because of his social isolation, his alcohol consumption issues and the fact that he did become sexually aroused by the pornographic images;
   • (b) he minimised his offending in his police interview and continues to do so;
   • (c) he lacks insight into the impact that his offending has had on the public and the reputation of the nursing profession; and
   • (d) to ensure the protection of the public.[17]
2. The Board submitted that in addition to imposing a reprimand, it would be appropriate in the circumstances for the Tribunal to impose the following conditions:
   • (a) Mr Omant be reprimanded;
   • (b) Mr Omant undergo psychotherapy with a practitioner approved by the Board for 12 months at a frequency determined by the treating practitioner with the treating practitioner to provide 3 monthly reports to the Board;
   • (c) Mr Omant not be permitted to work with children under the age of 18 years; and
   • (d) Mr Omant discloses the decision of VCAT in this proceeding to any future employer.[18]
3. At the hearing on 7 September 2015, the Board also submitted that there was a need for Mr Omant to undergo random breath testing following the commencement of employment and for him not to work night shift for a period of two years.
4. In making these submissions as to penalty, the Board acknowledged that the purpose of disciplinary proceedings is to protect the public,[19] and that it is not intended that the determinations of the Tribunal be punitive.[20] In the written submissions, the Board made clear that its recommendations as to penalty adopt the principle of the minimum regulatory restraint necessary to ensure the health and safety of the public.[21]

1. Counsel for Mr Omant made submissions as to the orders that the Tribunal should make. He also relied on Mr Omant's own statement[22] and evidence[23] and on the evidence of Dr Karen Owen[24], Dr Barbara Ward[25] and Mr Gary McMullen,[26] all of whom were called during the previous hearing. Mr Omant also relied on a further report dated 24 August 2015 of Mr Gary McMullen, psychologist, whom Mr Omant had an appointment with on 1 September 2015. Mr McMullen gave evidence by telephone during the hearing on 7 September 2015. We will not repeat what is set out in the reports and evidence of the expert witnesses which was summarised in the previous reasons.
2. We have taken all of the evidence provided by the Board and Mr Omant into account in reaching our decision as to the conditions that should be imposed on his registration as a nurse.
3. The Tribunal notes that Mr Omant has used his period of suspension to undertake additional study into nursing practice, and that he has achieved good results, which is very positive.
4. Counsel for Mr Omant principally submitted that it was not appropriate for conditions to be imposed on Mr Omant's registration as sought by the Board requiring Mr Omant:

(1) to undertake breath testing for the consumption of alcohol;

(2) not to engage in direct or assisted nursing care of persons under the age of eighteen years;

(4) to provide a copy of the Tribunal's orders and reasons to his employer or nursing agency prior to commencing employment.

1. The Court of Appeal in Stirling v Legal Services Commissioner[27] observed:

The reason for attaching conditions is two-fold. First and foremost, it recognises the protective purpose of disciplinary proceedings. The conditions ensure that the appellant will comply with his obligations or he will lose his right to practice. It ensures public confidence in the profession, by managing the appellant's return to practice. Secondly, the conditions seek to facilitate rehabilitation. They provide the appellant both with the tools to ensure that he lodges his tax returns on time and make adequate provision to pay his tax debts, as well as engaging with the respondent to guarantee sufficient oversight. Finally, he conditions contain a significant penalty provisions such that if the appellant does not comply then the two year suspended part of his sentence will be reinstated. This is a balanced approach.[28]

1. The Court of Appeal in Quinn v Law Institute of Victoria[29] observed:

... the phrase "not so much to punish as to protect" underlines the fact that the Tribunal's disciplinary orders are punitive as well as protective. The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

Critically for present purposes, however, the Tribunal's protective function is paramount. There where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.[30]

1. In determining disciplinary proceedings, particularly those relating to medical practitioners, the Tribunal very often imposes conditions upon the respondent's registration.[31]

1. Mr Omant has effectively been suspended from practicing as a registered nurse since 13 December 2010. This amounts to almost a five year period.
2. The Tribunal accepts the submission made by the Board and finds that this effective suspension of almost five years is sufficient for the protection of the public and of Mr Omant. While Mr Omant's registration will not be subject to cancellation or further suspension, conditions will be imposed in order to ensure that both he and the public are protected during his transition back to practising as a registered nurse.

1. A reprimand is a serious form of condemnation of a professional,[32] and demonstrates the disapproval and concern of the Tribunal, the profession and the public of the conduct in which Mr Omant engaged.
2. Mr Omant will be reprimanded in relation to the findings of professional misconduct and unprofessional conduct of a serious nature in relation to each of Allegations 1 to 4.

1. The Tribunal refers to the evidence before it as set out in its previous reasons:[33]

Mr Omant admitted that during the search of his house in November 2010, the police located child pornography images on his home computers. 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. 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. 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. He said that he had downloaded pornographic images over a period of four years. He acknowledged that his actions could not be justified, and that he was deeply ashamed of what he had done.[34]

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. 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.[35]

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. 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. 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.[36]

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. 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. Neither alcohol or medication assisted his sleep routine. Mr Omant said that while drinking and unable to sleep, he would sit and use the computer and attempt to study and read. He commenced downloading documentaries and subsequently computer pornography to satisfy his sexual fantasy and for masturbation. Dr Owen was of the opinion that Mr Omant would benefit from regular and ongoing review of his alcohol consumption.[37]

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. He reported that for a period of one year he used child abuse images on approximately 200 occasions.[38]

1. The Tribunal accepts the Board's submissions that Mr Omant should receive psychotherapeutic counselling from a suitably qualified health professional for a period of 12 months.
2. These counselling sessions are to relate to the exploration and treatment of Mr Omant's attraction to child pornography, including issues of victim identification and empathy in that context, and at his reaction to social and employment stressors.

1. The Tribunal accepts that there is no previous instance when it has been shown that Mr Omant's conduct when on duty as a nurse has been affected by alcohol consumption. However, noting Mr McMullen's evidence and the other evidence before us, we have serious concerns about the level and frequency of Mr Omant's consumption of alcohol. In the previous reasons, the Tribunal noted the evidence:[39]

(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;

(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.[40]

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.[41]

Mr Omant acknowledged that, following a period of abstinence after his conviction, he had returned to drinking but was now drinking light beer. He was now a diagnosed diabetic, and was drinking three to four nights a week. 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.[42]

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. 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. He reported that his work had never been affected by alcohol, and that he did not go to work hung over.[43]

Dr Owen recorded in her first report that Mr Omant reported having a drink containing alcohol 2-3 times a week. 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. 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.[44]

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. These substances acted as a precursor to Mr Omant's offending.[45]

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. He is a newly diagnosed diabetic.[46]

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 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.[47]

Mr Gary McMullen, a psychologist at the Austen Centre, provided a report dated 16 February 2011 and a report dated 25 November 2014. 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.

In his November 2014 report, Mr McMullen recorded that Mr Omant had remained abstinent of alcohol for well over 12 months. 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.

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. He was sleeping or trying to sleep during the hours when most other people are awake. Mr McMullen stated that Mr Omant was accessing and using child pornography when intoxicated.[48]

1. The Tribunal made the following finding in its previous reasons:

... 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.[49]

1. The Board submitted that the Tribunal should impose a condition requiring Mr Omant to undergo random breath testing for alcohol for the first two years of his employment.
2. The Tribunal accepts this submission and will impose a condition requiring weekly random tests during the first three months of Mr Omant's employment, and thereafter monthly until the end of the second year of employment. Testing will not continue after the end of the second year assuming that Mr Omant's results are satisfactory.

1. Counsel for Mr Omant submitted that as Mr Omant is required to be placed on the Sex Offenders Register for life, it is unnecessary for the Tribunal to impose on his registration a condition that Mr Omant not work with children.
2. The Tribunal rejects this argument, and imposes a condition on Mr Omant's registration that he not work with children under the age of eighteen years. There is a danger unless a condition is imposed on Mr Omant's registration that a prospective employer may not check the Sex Offenders Register, and that Mr Omant may be able to obtain employment without his employer being aware of this requirement. It is important for the protection of the public that any employer be made aware that Mr Omant cannot provide direct or assisted nursing care to any person under the age of eighteen years.
3. The Tribunal acknowledges that this may make obtaining employment difficult for Mr Omant. However, it is important to protect the public that any prospective employer be aware that Mr Omant is not to work with children. This condition will allow any prospective employer to fashion Mr Omant's employment arrangements to comply with this condition.

1. The Tribunal has previously noted Mr McMullen's evidence to the Tribunal:[50]

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. He was sleeping or trying to sleep during the hours when most other people are awake. Mr McMullen stated that Mr Omant was accessing and using child pornography when intoxicated.[51]

Mr McMullen stated that it was preferable for Mr Omant not to return to work in an intensive care unit environment. 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. Mr McMullen stated that Mr Omant's primary interest is a combination of nursing practice associated with research.[52]

Mr McMullen had no concern about Mr Omant undertaking intensive care work during the day if he was doing short stints. Mr McMullen stated that he would only become concerned if Mr Omant went back to full time night shifts.[53]

1. The Board submitted that it was the social isolation occasioned by night shift work in an intensive care unit that significantly contributed to Mr Omant's offending behaviour.
2. The Tribunal accepts the Board's submissions and considers that for the protection of Mr Omant and the public that Mr Omant should not work on night shift for the first two years following his return to work.

1. The Tribunal accepts the submission of the Board that Mr Omant should be required to disclose these findings to any prospect employer. The Tribunal accepts the Board's submission that:

Conditions requiring that he inform his employers about the determinations made in this proceeding and that he not work with children under the age of 18 years are important to ensure the protection of the public.[54]

1. For these reasons, the Tribunal will impose as a condition of registration that Mr Omant inform prospective employers of the orders and reasons of the Tribunal dated 3 July 2015 and these orders and reasons dated 12 October 2015 .

1. The Tribunal will impose a reprimand on Mr Omant as to each of Allegations 1 to 4. It considers that the suspension effectively imposed on Mr Omant for a period of almost five years is a sufficient period to protect the public. However, Mr Omant will be required to comply with conditions imposed on him to undertake a course of psychotherapy; as to breath testing for two years; not to provide nursing care to children; not to work night shift for a period of two years; and to provide a copy of the Tribunal's orders and reasons dated 3 July 2015 and dated 12 October 2015 to his employer or nursing agency prior to commencing employment.

[1] Parties' Statement of Agreed Facts dated 24 February 2015 ('statement of agreed facts') [10].

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

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

[5] Omant v Nursing and Midwifery Board of Australia [2014] VSC 512.

[6] Nursing and Midwifery Board of Australia v Omant [2015] VCAT 919 ('previous reasons').

[8] Ibid [87]-[92] (citations omitted).

[9] Outline of Applicant's Final Submissions on Determinations dated 7 September 2015 ('written submissions') [1].

[10] [1960] HCA 40; (1960) 104 CLR 186.

[12] [2011] VSCA 241.

[13] 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].

[19] Psychology Board of Australia v Mair [2010] VSC 628; Chinese Medicine Registration Board v Woo [2010] VCAT 753 [46]; Medical Board of Australia v Jansz [2011] VCAT 1026.

[20] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, 201; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183; Morris v Psychologists Registration Board (Unreported, Supreme Court of Victoria, Harper J, 19 November 1997) 12; Mullany v Psychologists Registration Board (Unreported, Supreme Court of Victoria, Gillard J, 22 December 1997) 12.

[22] Statement of Peter Omant dated 12 March 2015.

[24] Forensic Psychological Risk Assessment dated 7 May 2013; Forensic Psychological Risk Assessment Supplementary Report dated 31 March 2015; previous reasons [32]-[48].

[25] Report dated 16 July 2013; Report dated 1 February 2015; previous reasons [49].

[26] Re: Mr Peter Omant dated 16 February 2011; Report on Mr Peter William Omant dated 24 November 2014; previous reasons [50]-[54].

[27] [2013] VSCA 374.

[29] [2007] VSCA 122.

[31] Medical Board of Australia v Jansz [2011] VCAT 1026; MLNO v Medical Board of Australia [2012] VCAT 1613; Dental Board of Australia v Zehtab-Jardid [2014] VCAT 80; Medical Board of Australia v Dieu [2014] VCAT 1597; Medical Board of Australia v Shetty [2014] VCAT 136; Dental Board of Australia v Hussain [2014] VCAT 643.

[32] Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria, Marks J, 19 January 1993) 6.

[33] Previous reasons [29], [30], [35], [40], [42].

[34] Transcript of hearing on 23-24 April 2015 ('transcript') 24 ln 9, 24 ln 17-19, 24 ln 22-30, 24 ln 31, 25 ln 1-9, 26 ln 12, 27 ln 11-19.

[36] Forensic Psychological Risk Assessment dated 7 May 2013 [29].

[37] Ibid [73], [75], [76], [91].

[39] Previous reasons [23(1)], [23(2)], [23(3)], [23(5)], [23(6)], [27], [28], [33], [34], [40], [43], [44], [49], [50], [51], [52].

[42] Transcript 30 ln 25, 30 ln 25-31, 31 ln 15-18.

[43] Forensic Psychological Risk Assessment dated 7 May 2013 [17], [19], [20].

[48] Transcript 112 ln 10-11, 21-22, 113 ln 3-4.

[51] Transcript 112 ln 10-11, 21-22, 113 ln 3-4.

[52] Ibid 120 ln 1-2, 129 ln 16-21, 132 ln 26-30.

[53] Ibid 133, ln 28-31, 134 ln 1-2, 134 ln 3-9.