(1) Does the Tribunal have jurisdiction to consider and determine the respondent's conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?

(2) Was the respondent validly granted registration by the Board on 22 May 2019?

(3) Was the respondent's application for the renewal of his registration on 27 December 2019 valid?

• The jurisdiction of the Tribunal coincides with a properly made referral by the Board. A properly made referral is made under the National Law as it stood at the date of referral.
• Whether or not a referral is properly made is determined by two temporal factors: whether the person in relation to whom the referral is made is a registered health practitioner when the referral is made; and whether the behaviour alleged to constitute misconduct occurred when the person was a registered health practitioner or at some other time.
• The "Health, performance and conduct" provisions in Part 8 of the National Law are primarily directed at responding to the conduct of registered health practitioners while they remain registered health practitioners.
• In limited circumstances, a referral may be made in relation to a person who is no longer registered in relation to conduct that occurred when the person held a registration under the National Law or a predecessor law.
• The answer to Question 1 is that the Board cannot proceed on allegations of conduct occurring prior to the respondent's registration, given that he was not registered at the time of referral. Only the alleged conduct occurring after the respondent was registered on 22 May 2019 may be the subject of a referral.
• Questions 2 and 3 are answered in the affirmative. The respondent was validly registered by the Board on 22 May 2019, and re-registered following a valid application on 27 December 2019.

Health practitioners - Complaint by Paramedicine Board of Australia - Professional misconduct - Failure to disclose information relevant to registration - False or misleading declaration in application for registration

Administrative tribunals - Procedure - Jurisdiction - Health Practitioner Regulation National Law (South Australia) Act 2010 - Complaints in relation to conduct prior to registration - Complaints in relation to conduct by a person who is no longer registered

South Australian Civil and Administrative Tribunal Act 2013 s 26

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 3, 3A, 4, 6, 35, 52, 56, 65, 73, 77, 84, 85, 107, 108, 109, 113, 130, 137, 138, 139, 139A, 139B, 158, 193, 196,197, 199

Acts Interpretation Act 1901 (Cth) s 33

Brown & Anor v Coal Mines Australia; Alcorn & Anor v Coal Mines Australia Pty Ltd [2010] NSWSC 143

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & Ors [2010] NSWSC 132

Dental Board of Australia v Ho [2019] VCAT 467

Margulis v Psychology Board of Australia [2021] SASC 16

Medical Board of Australia v Isman [2023] VCAT 232

Medical Board of Australia v Redzepagic [2022] VCAT 838

Medical Board of Australia v Thompson [2020] TASHPT 2

Medical Board of Australia v XOT (Review and Regulation) [2022] VCAT 1223

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; [2002] 209 CLR 597

Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; (2005) 145 FCR 523

Minister for Indigenous Affairs and Anor v MJD Foundation Ltd [2017] FCAFC 37

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251

Paramedicine Board of Australia v VQK [2022] VCAT 382

Podiatry Board of Australia v McMurray [2022] VCAT 1222

Re OMQ [2017] SACAT 8

Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533

Semunigus v The Minister for Immigration and Multicultural Affairs [1999] FCA 422

Sloan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429

Mr B Jellis with Mr L Baird on behalf of the applicant, in person

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 and the South Australian Civil and Administrative Tribunal Act 2013 s 26

Summary of the legal conclusions reached in the determination of this matter

1. On 28 February 2023, the Paramedicine Board of Australia ("the Board") referred allegations to the South Australian Civil and Administrative Tribunal ("the Tribunal") concerning the conduct of the respondent, Mr Jackson, under the Health Practitioner Regulation National Law (South Australia) Act 2010 ("the South Australian Act"). Schedule 2 to the South Australian Act contains the "National Law".
2. In the pre-hearing stages of the proceedings, the Tribunal issued directions to allow for the ruling on a preliminary question concerning the Tribunal's jurisdiction. As President, I determined to hear the preliminary issue. As the matter requires a detailed analysis of the statutory scheme, the decision starts with this summary of the legal conclusions reached, before proceeding to the reasons for those conclusions.
3. The Tribunal's jurisdiction to determine complaints in relation to conduct prior to registration arises on this referral.
4. The jurisdiction of the Tribunal is found to coincide with a properly made referral by the Board.
5. A properly made referral is one that is made under the National Law as it stood at the date of referral.
6. Whether or not a referral is properly made is determined by two temporal factors:

(a) Whether the person in relation to whom the referral is made is a registered health practitioner when the referral is made; and

(b) Whether the behaviour alleged to constitute professional misconduct occurred when the person was a registered health practitioner or at some other time.

1. The "Health, performance and conduct" provisions in Part 8 of the National Law are primarily directed at responding to the conduct of registered health practitioners while they remain registered health practitioners.
2. In limited circumstances, a referral may be made in relation to a registered health practitioners in relation to conduct which occurred when the person was not registered.
3. In limited circumstances, a referral may be made in relation to a person who is no longer registered in relation to conduct that occurred when the person held a registration under the National Law or a predecessor law.
4. A referral may not be made in relation to a person who is not now registered in relation to conduct that occurred when the person was not registered.
5. To determine whether a referral is properly made, it is therefore necessary to ascertain whether the person in relation to whom the referral is made was registered at the time of the referral and whether the conduct alleged occurred while the person was registered or at some other time.

1. On 28 February 2023, the Paramedicine Board of Australia referred allegations to the Tribunal concerning the conduct of the respondent.
2. This decision sets out the answers to questions posed in relation to the Tribunal's jurisdiction to hear and determine the contentions raised on the referral.
3. In determining the answers to the questions posed, the Tribunal has had regard to a book of documents served on the respondent and tendered by the Board, entitled "Preliminary Hearing Book".[1] In that book is a copy of the referral document (described as a complaint). Allegation 1 of the complaint is that the respondent engaged in professional misconduct or unprofessional conduct in his application for registration as a paramedic in 2018 by failing to disclose relevant information. Allegation 2 of the complaint is that the respondent engaged in professional misconduct or unprofessional conduct on 27 December 2019 in that he made a false or misleading declaration in an application to renew his registration.
4. The relevant factual background to the referral is as follows:
   • The respondent was born in 1978;
   • He obtained a Bachelor of Health Science (Paramedicine) in 2008;
   • He applied to the Board for registration as a paramedic on 26 November 2018;
   • The Board commenced consideration of the respondent's application for registration;
   • On 24 January 2019, the respondent's employer, South Australian Ambulance Service, wrote to the respondent and informed him of its intention to suspend the respondent's employment as a consequence of an allegation that between 6 and 7 January 2019, the respondent engaged in physical and sexual activity with a colleague without consent during a shift;[2]
   • The respondent was suspended from his employment from 30 January 2019;[3]
   • The respondent was charged by police on 6 May 2019 with four counts of indecent assault and one count of compelled sexual manipulation;
   • On 22 May 2019, the Board purported to grant registration to the respondent;[4]
   • On 26 August 2019, AHPRA received a notification on behalf of the Board about the charged conduct of the respondent;
   • The charges against the respondent were withdrawn by police on 3 September 2019 and have not since been re-laid;
   • On 9 September 2019 the Board decided to investigate the matters about which it had received a notification;
   • The period of registration that the Board purported to grant the respondent ended on 20 November 2019;
   • On 27 December 2019, the respondent applied to renew his registration, and it was purportedly renewed;
   • On 30 December 2020, the respondent applied to renew his registration;
   • On 5 January 2021, the Board purportedly renewed the respondent's registration;
   • The respondent's registration lapsed, according to the Board, on 1 December 2021;
   • On 23 February 2023, the Board referred allegations of professional misconduct concerning the respondent to the Tribunal.
5. The respondent says he did not become registered as a paramedic in 2019 and that the Board cannot bring the proceedings against him.
6. The Board contends that it granted the respondent registration on 22 May 2019 and that he renewed his registration in 2019 and in December 2020. It contends that the respondent's registration as a paramedic lapsed on 1 December 2021. The Board contends that the proceedings are permitted to be brought in respect of the respondent.
7. Whilst the parties disagree as to whether the respondent was ever registered as a paramedic, the parties agree that the respondent is not now registered.
8. The Board maintains that the Tribunal has jurisdiction to hear proceedings in respect of certain conduct as described in its referral.
9. The Board posed questions for the Tribunal's consideration as follows:

(1) Does the Tribunal have jurisdiction to consider and determine the respondent's conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?

(2) Was the respondent validly granted registration by the Board on 22 May 2019?

(3) Was the respondent's application for the renewal of his registration on 27 December 2019 valid?

1. The Board contends that the answer to all three questions is yes, and the respondent contends that the answer to all three questions is no.
2. The Board contends that it follows from affirmative answers to the three questions that:

(i) The Board had power to initiate its investigation of the respondent and refer the conduct to the Tribunal for hearing; and

(ii) The Tribunal has the power to hear and deal with the relevant conduct under Part 8 of the National Law and make findings and determinations.

1. Although the respondent, who is unrepresented, did not make detailed legal submissions, his overall position is that he was never registered by the Board, he does not seek to be registered, and the proceedings are not permitted to have been brought and in any event, lack utility. He does not wish to be registered as a paramedic.
2. The answers to the questions posed are arrived at by the task of statutory interpretation. That task will be directed at the legislation as it was in force when the Board made its referral to the Tribunal, namely 6 February 2023.[5] Later, it will become necessary to consider whether amendments subsequently made to the National Law have any bearing on the issues to be determined.

1. The Health Practitioner Regulation National Law (South Australia) Act 2010 came into force on 1 July 2010 and, by s 4, adopts the schedule of the cognate Queensland statute, the Health Practitioner Regulation National Law Act 2009 (Qld) which contains the Health Practitioner Regulation National Law. The schedule is an appendix to the South Australian Act and is adopted as part of South Australian law.
2. Pursuant to s 6 of the South Australian Act, the South Australian Civil and Administrative Tribunal is declared to be the responsible tribunal for this State to which, by s 35 of the National Law, the Board has a duty, and in some circumstances a discretion, to refer certain matters concerning health practitioners for consideration as to whether disciplinary orders should be made.
3. Importantly for the statutory construction task, the South Australian Act incorporating the National Law is not construed by reference to the Legislation Interpretation Act 2017, which is excluded from application. Instead, it is construed by its own set of interpretation provisions set out in Schedule 7 of the National Law, and insofar as is applicable, common law principles of statutory interpretation. One of the principles of interpretation is set out in clause 7 of Schedule 7 which provides:

7 - Interpretation best achieving Law's purpose > > (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. > > (2) Sub-clause (1) applies whether or not the purpose is expressly stated in this Law.

4. The objects and guiding principles of the National Law are set out in ss 3 and 3A and provide:

3 - Objectives > > (1) The object of this Law is to establish a national registration and accreditation scheme for - > > (a) the regulation of health practitioners; and > > (b) the registration of students undertaking -

(i) programs of study that provide a qualification for registration in a health profession; or

(ii) clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are -

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and

(c) to facilitate the provision of high quality education and training of health practitioners; and

(ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander persons; and

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.

3A - Guiding principles

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

(b) 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 persons and their health; and

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

Example -

Codes and guidelines developed and approved by National Boards undersection 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care.

(c) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;

(d) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. The purpose of the legislative scheme was described by Bleby J (as his Honour then was) in Maroulis v Psychology Board of Australia[6] in the following way:

38. In Craig v Medical Board (SA), Doyle CJ explained the purpose of disciplinary proceedings: > > The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. > > 39. The protective purpose of disciplinary proceedings continues to be emphasised. In Health Care Complaints Commission v Do, the New South Wales Court of Appeal observed: > > The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (footnotes omitted)

2. Two matters of importance can be gleaned. Firstly, the legislation is directed at the protection of the public and secondly, it is primarily focused upon the activity of registered health practitioners.

The provisions relevant to the Board's referral and the Tribunal's jurisdiction

1. The Board's referral in February 2023 was made under Part 8 of the National Law, entitled "Health, performance and conduct".
2. That Part contains 14 Divisions:

Division 12 - Referring matter to responsible tribunals

1. The key section describing the scope of the Board's referral function is s 193 in Division 12. It provides:

193 - Matters to be referred to responsible tribunal > > (1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or

(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.

(2) The National Board must -

(a) refer the matter to -

(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or

(ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; and

(b) give written notice of the referral to the registered health practitioner or student to whom the matter relates.

34. Section 193 mandates referrals, by use of the word "must".[7] It creates an obligation on a Board to take an action.

1. Section 193 is limited in its operation to "registered health practitioners" or students (the latter not being relevant to the proceedings at hand). The terms "health practitioner" and "registered health practitioner" are defined terms as follows:[8]

health practitioner means an individual who practises a health profession; and > > registered health practitioner means an individual who-

(a) Is registered under this Law to practise a health profession, other than as a student; or

(b) Holds a non-practising registration under this Law in a health profession.

1. Clause 13(2) of schedule 7 to the National Law provides that:

Definitions in or applicable to this Law apply except so far as the context or subject matter otherwise indicates or requires.

2. An examination of the provisions of the National Law does not reveal anything from which it might be discerned that the legislature did not intend the definitions to operate on those terms in s 193. Rather, such an examination discloses the legislature's intention to denote different things by use of the terms "health practitioner", "registered health practitioner" and "person". The use of the term "registered health practitioner" operates on those persons in relation to whom the National Law has its primary focus: those who are seeking to be registered or who are registered as health practitioners under the regulatory regime.
3. Where the term "person" is used, it signals an intention to include those who are registered health practitioners and those who are not, and is used to in provisions in which the individual might not be a registered health practitioner, or the provision is not directed to that individual qua registered health practitioner. For example, the prohibition on using a protected title in s 113 of the National Law is directed at "a person". The prohibition is directed at all persons irrespective of whether they are registered health practitioners or not, unless they are registered in the particular health profession associated with that title.
4. That the terms have different meanings is evident from the use of several of them within a single provision. As an example, s 199(2) describes which tribunal is responsible to decide appeals from reviewable decisions. It refers to appeals from a "decision to take health, conduct or performance action in relation to a registered health practitioner or student", but also appeals from a "decision in relation to another person".
5. The target of s 193 is registered health practitioners.
6. Further, there is no basis for the principle of ambulatory operation to be displaced. The status of the person as a registered health practitioner should, in accordance with that principle, be taken as the status at the time that the section is invoked. That is, at the time of the referral. As it will become apparent later, that conclusion is reinforced by other indicators.

A referral is made upon the Board's belief about the practitioner's behaviour

1. Section 193 conditions a referral of a registered health practitioner to the Tribunal on the occurrence of any of the following three circumstances:
   • the Board holding a belief that the practitioner has behaved in a way that constitutes professional misconduct; or
   • the Board holding a belief that the practitioner's registration was improperly obtained; or
   • in respect of a registered health practitioner or student, a panel requiring the Board to make a referral.
2. The conduct of the practitioner, whether professional misconduct or obtaining registration improperly, is compendiously referred to in s 193(2) as "the behaviour". This term is used elsewhere which signals a drafting intent to connote the same meaning.[9] In Craig Williamson Pty Ltd v Barrowcliff,[10] Hodges J said:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.

3. That approach has subsequently been applied by various courts including by the New South Wales Supreme Court in Brown & Anor v Coal Mines Australia; Alcorn & Anor v Coal Mines Australia Pty Ltd.[11]
4. The term "professional misconduct" is also defined, as follows:[12]

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.

1. In relation to the respondent, the Board made its referral on the basis that it held a belief that the respondent has behaved in a way that constitutes professional misconduct.[13]

The referral may only relate to behaviour that occurred at a particular time by reference to the practitioner's registration

1. The behaviour referred to the Tribunal for its consideration must also have occurred at a particular point in time as set out in Part 8 Division 1.
2. Part 8 Division 1 contains ss 138 and 139. These two provisions condition the activities of making of a notification, and the taking of proceedings. The making of a notification is not relevant to the question of law to be determined and there is no need to address it further in this decision.
3. Sections 138 and 139 provide as follows:[14]

Part 8 - Health, performance and conduct > > Division 1 - Preliminary > > 138 - Part applicable to persons formerly registered under this Law > > (1) This section applies if a person was, but is no longer, registered in a health profession under this Law. > > (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession. > > (3) For the purposes of subsection (2), this Part (other than Division 2 and Division 6) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. > > 139 - Part applicable to persons formerly registered under corresponding prior Act in certain circumstances > > (1) This section applies if a person - > > (a) was registered in a health profession under a corresponding prior Act; and > > (b) is not, and has not been, registered in the health profession under this Law. > > (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered under the corresponding prior Act as if the person were registered under this Law by the National Board established for the health profession. > > (3) However, subsection (2) applies only to the extent -

(a) a notification about the person's behaviour could have been made under the corresponding prior Act; and

(b) proceedings of that type could have been taken under the corresponding prior Act.

(4) For the purposes of subsection (2), this Part (other than Division 2 and Division 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

1. In relation to those two sections, the following points are relevant.
2. Firstly, in contrast to s 193 which is directed notifications and referrals in respect of registered health practitioners, these provisions are directed at notifications and proceedings in respect of persons who were formerly registered health practitioners. It is for these persons that an order disqualifying them from future registration for a specified period may be the appropriate sanction to protect the public given that the person is not currently registered.[15]
3. Secondly, these provisions are couched in discretionary terms, in contrast to s 193 which is in mandatory terms. Under ss 138 and 139, the Board is invested with a discretion. This is consistent with the fact that whilst it always be appropriate to have an allegation of professional misconduct against a registered health practitioner determined, it may not necessary for the protection of the public to proceed in relation to a person who is no longer registered.
4. Thirdly, ss 138 and 139 concern acts of notification and the taking of proceedings, whereas s 193 concerns referrals. This distinction reflects that notifications do not have the character of "proceedings" but a referral results in a proceeding before the Tribunal, as can be seen from the reference to the referral as a proceeding in ss 194 and 195.
5. A referral must concern the person's "behaviour", which is to be understood by reference to the use of that term in s 193. In other words, the range of conduct about which notifications can be made and proceedings can be taken mirrors that which can be taken under s 193.
6. However, the behaviour with which ss 138 and 139 is concerned is limited in a way that the behaviour in s 193 is not. Section 138 is concerned with behaviour of a person who was, but no longer is, a registered health practitioner under the National Law. Section 139 is concerned with behaviour of a person who was registered under a prior corresponding Act but is not, and never was, registered under the National Law.
7. It can be seen that ss 138 and 139 create a power to make notifications and to take proceedings in relation to persons who were formerly registered (either under the National Law or a predecessor law) but are not now registered. This may be contrasted with s 193 which imposes an obligation on the Board to make notifications or take proceedings in respect of currently registered health practitioners and students.
8. Importantly, ss 138 and 139 limit the circumstances in which notifications or proceedings against the persons to whom they apply, as follows:
   • Under s 138, such notifications or proceedings are limited to behaviour of the person while registered; and
   • Under s 139, such notifications or proceedings are limited to behaviour of the person while registered under a prior law which could have been taken under the corresponding prior law; and
   • Neither s 138 nor s 139 provides for notifying or taking proceedings in relation to a student.
9. This account of the work performed by ss 138, 139 and 193 gives full effect to the distinction signalled by the drafter between a "person" and the defined term "registered health practitioner".
10. Further, it gives effect to the use of differentiated tense in the text of each of the three sections, reflecting the distinction between someone who is a registered health practitioner, and someone who was a registered health practitioner and is not now registered, and a person who is not registered and has never been registered under the National Law, but was registered under a predecessor law.
11. In summary, there are two temporal aspects to the provisions that collectively establish the scheme for referral of allegations and their determination by the Tribunal. The first is that, as described in paragraph 41 above, the status of the health practitioner at the time of the referral is determinative of the scope of allegations that may be contained in the referral. The second temporal aspect is whether the behaviour complained of occurred whilst the health practitioner was registered, and that is also determinative of the scope of allegations that may be contained in a referral.
12. That the legislation distinguishes between persons who are now registered or not registered, and whether the impugned behaviour occurred whilst they were registered or at some other time, is consistent with the primary purpose of the National Law being to protect the public with respect to the services that registered health practitioners are entitled to provide.[16] The scheme is primarily aimed at the person's future conduct as a health practitioner and the risk posed to the public. The scheme provides a more limited authority to the Board to take action with respect to former registered health practitioners. Such persons are not an immediate risk to the public in relation to the provision of health services that they were entitled to perform when registered. However, it is necessary for the protection of the public in some circumstances to restrict the person's possible activity in a related field, or to allow for the condemnation of wrongful behaviour, and to provide findings upon which any future application for registration by the person will be treated. Such additional purposes necessitate the conferral of some power to respond to the conduct of a person even where they are no longer a registered practitioner.

The Tribunal's jurisdiction is defined by a properly made referral

1. Sections 138, 139 and 193 collectively and exhaustively describe the circumstances in which the Board may or must make a referral to the Tribunal.
2. That is, the Tribunal's jurisdiction coincides with a properly-made referral by the Board.

Do the amendments following the referral have any effect on the referral?

1. Before turning to a consideration of whether the allegations come within the range of referable conduct, it is necessary to consider whether the amendments to the National Law that took effect on 15 May 2023 might, by reason of retrospective operation or by illuminating the statutory purpose of the relevant provisions, bear on the matter.
2. After the referral in February 2023, amendments to the National Law came into effect on 15 May 2023.[17]
3. The Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 was passed by the Queensland Parliament on 21 October 2022, to commence on a date fixed by proclamation. The Amendment Act contains amendments concerning the Tribunal's exercise of powers on a referral, contained in Part 8 Division 1 of the National Law.
4. The date for commencement of the Amendment Act as it operated on the South Australian Act was fixed by regulation as 15 May 2023.[18]
5. Those amendments affected a large suite of provisions throughout the National Law, as to the eligibility of persons to be registered, the functions and powers and process of Boards, and the scope of proceedings heard by responsible tribunals.
6. The Board contended that the amendments reveal and clarify the legislative purpose of the referral provisions and may be taken into account in the construction of the law as it was when the referral occurred.
7. That contention is consistent with the decision of Newcastle City Council v GIO General Ltd[19] and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd.[20] In the former case, McHugh J said:

... a court is permitted to have regard to the words used... in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the provision's legislative history.[21]

8. Following the amendments, the scheme contained in ss 138, 139 and 193 was changed. Section 193 was amended to make it subject to s 193A, which confers a new discretion upon the Board to decline to make what was previously a mandatory referral under s 193. The effect of s 193A is that if certain circumstances exist, a referral is not mandatory.
9. Sections 138 and 139 were amended in a more substantial way.
10. Sections 139A and 139B were inserted to create a four-section Division 1. That Division now provides:

138 - Application of Part to persons who are registered health practitioners > > (1) A notification may be made under this Part about, and proceedings may be taken under this Part against, a person who is a registered health practitioner in relation to behaviour that -

(a) occurs while the practitioner is registered in a health profession under this Law; or

(b) occurred before the practitioner was registered in a health profession under this Law; or

(c) occurred during any other period in which the practitioner was not registered in a health profession under this Law, including, for example, if the registration had ended or was cancelled, suspended or withdrawn.

(2) A registered health practitioner's behaviour that occurred at a time specified in subsection (1)(b)) or (c) may not constitute -

(a) unsatisfactory professional performance; or

(b) unprofessional conduct, except as provided by section 139.

139 - Proceedings in relation to practitioner's behaviour while temporarily unregistered

(1) This section applies if -

(a) proceedings are taken under this Part against a person who is a registered health practitioner; and

(b) the panel or tribunal is satisfied the behaviour to which the proceedings relate occurred -

(i) after the practitioner's registration ended under section 108(2)(a); and

(ii) while the practitioner continued to practise the health profession.

(2) The proceedings may be taken and findings may be made as if the practitioner were registered at the time the behaviour occurred.

139A - Application of Part to persons who were registered health practitioners

(1) This section applies to a person who was, but is no longer, registered in a health profession under this Law.

(2) A notification may be made under this Part about, and proceedings may be taken under this Part against, the person as if the person were still registered in a health profession under this Law in relation to behaviour that occurred while the person was registered.

(3) For the purposes of subsection (2), this Part (other than Divisions 2 and 6) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

139B - Application of Part to persons who were registered under corresponding prior Act

(1) This section applies to a person who -

(a) was registered in a health profession under a corresponding prior Act; and

(b) is not, and has not been, registered in a health profession under this Law.

(2) A notification may be made under this Part about, and proceedings may be taken under this Part against, the person as if the person were registered in a health profession under this Law in relation to behaviour that occurred while the person was registered under the corresponding prior Act.

(3) However, subsection (2) applies only to the extent -

(a) a notification about the person's behaviour could have been made under the corresponding prior Act; and

(b) proceedings could have been taken under the corresponding prior Act.

(4) For the purposes of subsection (2), this Part (other than Divisions 2 and 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.

1. It can be seen that what were ss 138 and 139 under the National Law previously (including at the date of referral, 28 February 2023) are now re-numbered but otherwise unchanged in ss 138A and 139B. Accordingly, the provisions concerning former health practitioners remain unaffected.
2. However, ss 138 and 139 are new. They concern proceedings taken against registered health practitioners. For the reasons given earlier, the words "registered health practitioners" should be given their defined meaning and refer to the status of the person at the time of the referral. The Explanatory Memorandum[22] in relation to the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 No. 22 (QLD) which stated:

The amendment to the National Law at clause 90 [to s 138] is intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration, which has been the longstanding interpretation and practise of regulators and tribunals. > > ... > > Section 139A is inserted in the National Law by clause 90 and provides that a notification can be made and proceedings can be taken against a person who was, but is no longer, registered under the National Law as if the person were still registered in relation to behaviour that occurred while the person was registered. The modifications in inserted section 22 are intended to apply section 139A to matters referred by the Health Ombudsman to the national regulators. This means that a referred matter about a person who was, but is no longer, registered under the National Law, may be dealt with as if the person were still registered, if it involved behaviour that occurred when the person was registered. > > ... > > Inserted section 139B of the National Law sets out when a notification may be made, and proceedings may be taken, against a person who was registered under a corresponding prior Act but has not been registered under the National Law. The modifications at inserted section 22A are intended to apply section 139B to matters referred by the Health Ombudsman to the national regulators.

3. The Board contended that whilst the amendments do not have retrospective effect, they make clear that the legislative intention is that a board is intended to have power to make a referral in respect of a health practitioner's behaviour that occurred prior to the practitioner becoming registered.
4. The Tribunal accepts that there is no textual indication that the amendments have retrospective effect, as distinct from basing future action on past events. The Board's referral on 28 February 2023 was governed by the law as it stood at that time and the subsequent amendment has not altered that.
5. The contention that the amendments to Part 8 Division 1 and s 193 merely amplify or clarify the law as it stood at February 2023 is doubtful, but ultimately this does not need to be decided. This is because the key determinant of the Board's ability to refer was, and remains under the law as amended, the respondent's registration status at the time of the referral of the matter to the Tribunal. There is no dispute that, at the time of the referral, the respondent was not registered. The respondent's registration (if there was one) lapsed in 2021 and by the date of the referral in February 2023, the respondent was not registered. This immediately excludes the respondent from the operation of s 193. Nothing in the amendments has altered that.
6. The provision that governed his referral was s 138 as it stood at 28 February 2023. If the respondent was ever registered (which he denies), he was at the time of referral a person "who was, but is no longer, registered in a health profession". Section 138 remains unamended except that it is now renumbered as s 139A. If the respondent were the subject of a referral now, s 139A would govern the referral.
7. The effect of the amendments on referrals has largely been directed at those provisions concerning persons who are registered health practitioners at the time of the referral. The respondent is not in that cohort.

The authorities relied upon by the Board are distinguishable or consistent with this reasoning

1. The Board's position was that the Tribunal could decide this matter by reference to, and should adopt the reasoning in, Dental Board of Australia v Ho.[23] That decision was cited as supporting the proposition that behaviour that occurs when the practitioner is unregistered is behaviour that can be referred by a Board. It follows from the analysis above that whether or not behaviour that occurs when the practitioner is unregistered can be referred depends upon whether the practitioner is registered at the time of the referral.
2. The circumstances in Dental Board of Australia v Ho reveal that the case is distinguishable from the one under consideration by this Tribunal.
3. In Ho, the health practitioner was a dentist. In 2015, Dr Ho inadvertently failed to renew his registration. For four weeks, from 7 January 2016, he practised unregistered, not realising his registration had lapsed. In early February 2016, Dr Ho discovered his registration had lapsed, and he contacted AHPRA. By this time, the grace period allowed for renewal of his previous registration had passed. Dr Ho was advised, on 9 February 2016, that he must not practice dentistry until he was re-registered. On 17 February 2016, Dr Ho applied for re-registration. It was not until 13 July 2016 that he obtained re-registration. Following a referral of allegations of professional misconduct and unprofessional conduct against Dr Ho by the Dental Board of Australia, the Victorian Civil and Administrative Tribunal (VCAT) found that Dr Ho chose, for a period of approximately two weeks, to treat patients who were part-way through treatment.
4. At the time that VCAT considered the matter, Part 8 Division 1 of the National Law was in the same form as it was when the referral occurred in respect of the respondent in these proceedings. In other words, ss 138 and 139 stood alone and ss 139A and 139B were not yet in operation.
5. However, the Tribunal in Ho did not consider ss 138 or 139 apart from a statement to the effect that s 138 confers jurisdiction with respect to allegations if a person has engaged in conduct while a registered health practitioner and the registration comes to an end.[24] The Tribunal did not need to consider ss 138 and 139 because it was dealing with a referral of a practitioner who was at the time of the referral a registered health practitioner. The Tribunal's reasons for decision record that, "Deputy President Proctor has decided VCAT has jurisdiction concerning conduct of a registered health practitioner where the conduct occurred while the person was not a registered health practitioner."[25]
6. The Tribunal in these proceedings has not adopted an interpretation that is inconsistent with the VCAT's conclusion in Ho. The Tribunal's decision in Ho concerned:
   • Allegations in respect of a currently registered health practitioner relating to conduct that occurred when he was registered, and
   • Allegations in respect of a currently registered health practitioner relating to conduct that occurred following a period of registration, and
   • Allegations in respect of a currently registered health practitioner relating to conduct that occurred when he was not a registered health practitioner.
7. None of those scenarios capture the current matter under consideration. Dr Ho was a registered health practitioner at the time of the referral. The respondent in these proceedings was not.
8. The decision in Ho was followed in Medical Board of Australia v Isman,[26] in which the Medical Board of Australia referred a matter to VCAT alleging professional misconduct by Dr Isman. The conduct constituting the complaint occurred on 25 May 2019 and 29 June 2019, whilst the respondent was not yet registered. It was alleged that on those dates, Dr Isman made unwanted sexual advances towards, and inappropriately touched, two fellow medical students. On 16 December 2019, Dr Isman was granted registration as a medical practitioner. On 17 December 2019, the Board received a notification from Victoria Police regarding the conduct.
9. On the referral of the allegation of professional misconduct, the question of whether VCAT had jurisdiction to determine the proceedings was answered as a preliminary issue. The Tribunal said:
   1. Before the hearing, VCAT invited the parties to make submissions on the question of its jurisdiction to make the proposed findings of professional misconduct against Dr Isman, where the relevant conduct occurred when he was not a registered medical practitioner, and in respect of which he had not, whilst a registered medical practitioner, been convicted.
   2. At the hearing the Board submitted, and Dr Isman did not contest, that VCAT has jurisdiction, the Board in part relying on VCAT's decision in Dental Board of Australia v Ho [2019] VCAT 467 (Ho).
   3. By coincidence, Deputy President Proctor decided the jurisdiction issue in Ho and presided at the hearing in this proceeding. As the presiding legal member in this hearing, he decided the question of law as to whether VCAT has jurisdiction.
   4. He considered the Board's written submissions in this proceeding and reconsidered his reasoning in Ho. He accepted the Board's submissions including:

a) While VCAT is not bound by its previous decisions, principles of comity and consistency of decision-making should apply, VCAT would only depart from a decision which was clearly on point if it thought that it was clearly wrong; > > b) The decision in Ho has been followed in other tribunal decisions in Medical Board of Australia v XOT (Review and Regulation) [2022] VCAT 1223, Podiatry Board of Australia v McMurray [2022] VCAT 1222, Paramedicine Board of Australia v VQK [2022] VCAT 382 and Medical Board of Australia v Thompson [2020] TASHPT 2; > > c) While VCAT expressed doubt as to jurisdiction in Medical Board of Australia v Redzepagic [2022] VCAT 838, the facts were different and VCAT did not decide the issue; and > > d) The yet to commence Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 will amend section 138 of the National Law, intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration, which the explanatory note to the Bill described as the longstanding interpretation and practise of regulators and tribunals.

5. He decided that the Board had jurisdiction in this proceeding, applying the reasoning in Ho, noting that the reasoning had been applied in other cases and in terms of the context in which the National Law should be interpreted, the comments in the explanatory note about the amending legislation.
6. Deputy President Proctor referenced the amendment to s 138, which has since commenced, as supporting and confirming his interpretation of the National Law and the Tribunal's jurisdiction.
7. Dr Isman was a registered health practitioner at the time of the referral and the proceedings. In respect of Isman, this Tribunal respectfully agrees that it has jurisdiction to determine referrals with regard to conduct before registration, or that occurred in a gap or suspension in registration, if the person is at the time of the referral, registered.
8. The very issue that arises in relation to the respondent, which is whether an allegation may be referred in respect of a person who is not at the time of the referral a registered health practitioner, where the matter concerns conduct that occurred before the person became a registered health practitioner, did not arise on the facts of Ho or Isman.
9. In Paramedicine Board of Australia v VQK,[27] the Paramedicine Board alleged that the respondent, who was also a registered nurse, failed to inform the Board about his criminal charges during the time that his application for registration as a paramedic by the Board was under consideration. VQK was subsequently registered as a paramedic from 17 July 2019 and pleaded guilty in November 2019 to a charge of stalking his ex-partner in December 2017. The Board alleged that he knowingly failed to notify the Board that he had been charged with offences that were relevant to the application for registration by that Board. It was alleged at that at the time VQK applied for registration as a paramedic November 2018 and thereafter while his application was under consideration, he had an obligation in his capacity as a nurse under s 130 of the National Law to give written notice to the Nursing and Midwifery Board within seven days after becoming aware that he had been charged with an offence punishable by 12 months' imprisonment or more.
10. VQK was a registered paramedic at the time of the proceedings against him. The Tribunal did not directly consider the Tribunal's jurisdiction to hear complaints regarding unregistered conduct, because VQK was in fact registered (albeit by a different board) at the time of the conduct.
11. In Medical Board of Australia v Redzepagic[28] the Medical Board referred to VCAT three allegations against the respondent. Allegations 1 and 2 related to the respondent transgressing professional boundaries by asking two former patients to lend him money, and a third allegation related to the respondent contravening restrictions on his registration.
12. The conduct constituting allegations 1 and 2 occurred after the practitioner had ceased to be registered. This raised the question of whether VCAT had jurisdiction to deal with the complaint. The Board submitted in essence that the respondent, in requesting loans from former patients, breached continuing obligations which he incurred while he was registered, and there was therefore sufficient connection to his registration.
13. At the time Redzepagic was decided, ss 138 and 139 were in the same form as they were when the respondent's conduct was referred to this Tribunal. The Tribunal in Redzepagic expressed some doubt as to whether VCAT had jurisdiction in circumstances where conduct occurred whilst a practitioner was not registered. The Tribunal said:
    1. The jurisdiction issue arises because Part 8 of the National Law, under which these proceedings were brought, refers to proceedings brought 'about a registered health practitioner' by a National Board (s 193); and a decision by a responsible tribunal 'about a registered health practitioner' (s 196) [emphasis added].
    2. Dental Board v Ho [2019] VCAT 467 (Ho) provides an example of proceedings brought against a person who is registered at the time of the proceedings, in respect of conduct whilst unregistered - in that case practising while unregistered in contravention of the National Law. Ho concerned a dentist who had continued to practice during a period when they were unregistered due to an inadvertent failure to renew their registration. The Tribunal found it had jurisdiction in respect of the allegation.
    3. Section 138 of the National Law provides for proceedings to be taken against a person who was, but is no longer, registered in a health profession, as if they were still registered, but only 'in relation to the person's behaviour while registered' [emphasis added].
    4. It is well-established that s 138 enables a National Board to bring proceedings against a person who is no longer registered, whether because their registration has lapsed, been surrendered, or has been suspended under an immediate action decision, provided the proceeding relates to their behaviour while registered. Section 196(4) provides for the more limited determinations in such a case.
    5. In this case, however, the respondent was not registered at the time of the conduct (borrowing from a former patient) and was not a registered practitioner at the time of the referral to the Tribunal. Taking into account the submissions made, the Presiding Member's preliminary view, discussed at the hearing, was that the National Law did not give standing to the Board to refer the allegations to the Tribunal and did not give jurisdiction to the Tribunal in respect of the conduct.
14. The decision in Redzepagic is consistent with the interpretation of the statutory scheme advanced in this case.
15. This assessment of the authorities referred to by the Board indicates that the interpretation taken in these proceedings is not inconsistent with those authorities.
16. It remains to be considered whether the referral of the respondent's behaviour met the conditions of s 138. When undertaking that task, the registration status of the person at the time the conduct occurred is relevant. That issue was disputed and it is convenient to consider that issue at this point.

Was the respondent validly granted registration by the Board on 22 May 2019?

1. The National Law establishes a scheme for general registration of health practitioners, but also provisional,[29] specialist,[30] student,[31] limited[32] or non-practising[33] registration. For the purposes of these proceedings, the relevant provisions are those regarding general registration.
2. A person seeking to practice as a paramedic must make an application to the Board for registration.[34] To be eligible, the person must hold an approved qualification, complete any further supervised practice or assessment or examination applicable, be a suitable person, not be disqualified, and meet any other requirements provided for in an approved registration standard for the particular health provision.[35] There is an obligation on an applicant to furnish a criminal history report and certain offences are disqualifying. By these provisions, it is intended that persons unsuitable for registration are prevented from attaining registration.
3. Registration occurs by a decision of the Board.[36] Such a decision must, unless time has been extended by consent, be made within 90 days of receipt of the application. Notice of the decision must be given to the applicant within 30 days of the decision being made.[37] If the Board does not decide an application within 90 days or such longer time agreed between the Board and the applicant, it is deemed to be refused.[38] An actual or deemed refusal gives rise to a right of appeal.[39]
4. There is a period of general registration decided by the Board for the relevant health profession and the dates of that period are published ("the registration period"). It may only be a period of not more than 12 months.[40] The registration of a person who is registered during a registration period, expires at the end of the registration period.[41] In other words, if a person becomes registered part way through the registration period, their first period of registration nevertheless expires simultaneously with the registrations of other members of that health profession.
5. During a period of registration, a person has a duty to disclose to the Board within seven days any charge or conviction of an offence for which imprisonment is an available sanction.[42]
6. Registration may be renewed at the end of a registration period and within one month following the end of the registration.[43] If a registered health practitioner does not renew their registration before the end of the registration period, they are taken to be registered for one month after the end of the registration period.[44] If a registered health practitioner makes an application for re-registration prior to the end of the registration period or within one month of its end, the practitioner's registration is taken to continue in force until the Board makes a decision to grant or refuse the re-registration.[45]
7. It is convenient to refer to the period between the making of an application within the specified timeframe and the Board's making of a decision on re-registration as "the grace period".
8. A renewal of registration has the effect of creating a new period of registration that is backdated so as to be continuous with earlier period of registration.[46] Amongst other things, this is relevant to the issue of whether a person's conduct is correctly alleged to have occurred during a period of registration or not.
9. In the renewal process, the registered health practitioner must disclose any change to their criminal history. This is specified to include a requirement to disclose any charge that relates to allegations of conduct pre-dating the practitioner's registration.[47]
10. Under new Part 6A of the National Law that commenced operation on 15 May 2023, the Board may withdraw the registration of a registered health practitioner where the Board reasonably believes that the registration was improperly obtained. Those provisions were not in force at the time of the referral and have not been relied upon by the Board.
11. A registration may be surrendered by the holder.[48]
12. A registration may be suspended as a form of immediate action that a Board may take if it considers that the health practitioner's health, conduct or performance poses a serious risk to persons, and if such action is taken, then the Board must take further action to investigate the issue.[49]
13. Registration may be cancelled by the Tribunal.[50]

The registration events in relation to the respondent

1. The respondent applied to the Board for registration as a paramedic in November 2018.[51] The Board sought the respondent's consent on two occasions to extend time beyond 90 days to consider whether to grant or refuse the registration.[52] The respondent agreed to the first extension in February 2019.[53] The second request was made on 2 May 2019. The Board wrote an email to the respondent which said:

Dear Mr Jackson, > > Thank you for lodging your application for registration with the Paramedicine Board of Australia (the Board). Your application is under assessment. > > Under section 85 of the Health Practitioner National Law, as in force in each State and Territory (the National Law), the Board or its delegate has 90 days to make a decision on your application after it is received. In respect to your case the Board must decide your application by May 20, 2019. If a decision is not made by May 20, 2019, the application is taken to be refused, unless an extension of this date is agreed upon between the Board and you. > > Given that your application is still under assessment, we propose to extend this date until August 20, 2019. > > If you agree to this please advise us in writing by May 9, 2019.[54]

2. The respondent did not respond to this second request.
3. The respondent contends that the effect of s 85 of the National Law is that the Board was taken to have refused his registration on 20 May 2019. Section 85 provides:

85 - Failure to decide application > > If a National Board fails to decide an application for registration within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to register the applicant.

4. On 22 May 2019, the Board purported to register the respondent as a paramedic. The Board wrote to the respondent advising him that he was registered and that he was required to renew his registration by 30 November 2019.[55]
5. The respondent submits that the purported registration by the Board on 22 May 2019 was ineffective because his registration application had already been refused by virtue of the deeming provision. The respondent is unrepresented and he did not elaborate on that submission with legal principles in support of that interpretation of the effect of s 85.
6. Mr Jellis, on behalf of the Board, submitted that the Board was entitled to register the respondent and did so, with legal effect. He contended that the deeming provision in s 85 is directed at conferring a right of appeal on an applicant for registration and that it should not be construed as having the effect that the Board's power to subsequently register the applicant has been exhausted.

Consideration as to the effectiveness of the Board's purported registration of the respondent on 22 May 2019

1. There is no provision in the National Law that expressly states whether the Board may register a person following a deemed refusal that occurs under s 85. Another way of addressing the question is to ask whether the decision, having been made, can be re-made. It is a question that is answered by an examination of the statutory scheme assigning the decision-making function. This enables what the legislature intended in respect of that particular type of decision to be ascertained.[56] Some statutes will evince an intention that the decision-maker's power is exhausted (often with the exception of correcting minor errors) in respect of a particular set of circumstances once it has been exercised. In other legislative schemes, the intention that a decision-maker is entitled to remake a decision will be ascertainable.
2. Firstly, however, it should be observed that the provision in clause 22 of Schedule 7 of the National Law to the effect that the Board may exercise its functions "from time to time" does not assist. That provision, which is in very similar terms to s 33 of the Acts Interpretation Act 1901 (Cth) and equivalent state legislation, is directed at recurrent performance of the same function with respect to different circumstances.[57] To put it another way, clause 22 of Schedule 7 only addresses whether powers and functions are spent after their first use and cannot be exercised subsequently in different circumstances, and not whether the exercise of powers and functions in particular circumstances can be revisited in respect of those same circumstances.
3. In the Tribunal's view, the Board's power to make a decision was not exhausted by the deemed refusal. Firstly, it is not certain that a deemed refusal is a decision that can attract the functus officio principle. The better view is that the principle only operates in respect of a decision that has been considered on its merits. In respect of a deemed decision, there is no consideration of the merits of the decision at all.
4. In Re OMQ,[58] this Tribunal when conducting an internal review found that the Tribunal in exercising its original jurisdiction had not exhausted its decision-making role when it issued orders following a hearing at which the respondent had not attended. Parker P considered that the decision had not been made on the merits and that the South Australian Civil and Administrative Tribunal Act 2013 evinced an intention to allow, in those limited circumstances, a decision to be re-opened. In reaching that conclusion, the President relied upon the following statements of French J (as he then was) in Sloan v Minister for Immigration, Local Government and Ethnic Affairs:[59]
   1. ... The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances...
   2. Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision maker may be persuaded on appropriate and cogent material that a decision taken ought to be reopened without the necessity of invoking the full panoply of judicial or express statutory review procedures.
5. The principle has also been found not to operate where a decision has not been finally made with the requisite intellectual consideration that the conferring legislation requires. In Semunigus v The Minister for Immigration and Multicultural Affairs,[60] Finn J said:
   1. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
   2. What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc.
6. On appeal, neither the decision in Semunigus nor the reasoning as to the operation of the principle of functus officio was overturned.[61] Consistent with the reasoning in these cases that the principle operates where a decision-maker has turned their mind to the decision and then reached a final conclusion, the Tribunal considers that the National Law does not evince an intention that a deemed refusal, where no mind has considered the merits of the matter, is a decision that cannot be revisited.
7. Rather, as Mr Jellis submitted, the purpose of s 85 is to enliven in an applicant a right to appeal where a Board has simply not made a decision. It would undermine that intention if a deemed refusal then precluded the very thing that an applicant sought, namely a registration decision.
8. It is the Tribunal's view that the Board's act of registering the respondent on 22 May 2019 was not ineffective notwithstanding the deemed refusal that had occurred on 20 May 2019. It follows that the respondent was registered as a paramedic from 20 May 2019.
9. The answer to the question as to whether the respondent became a registered health practitioner on 22 May 2019 is: yes.

Was the respondent's renewal of his registration on 27 December 2019 valid?

1. In order for the respondent's application for renewal to have had legal effect, he needed to be a person who could apply for a renewal. Having found that the respondent was registered, and in the absence of evidence that his registration had ended for some other reason, he was able to apply for renewal up until a month after the expiry of the general registration for his profession.
2. The respondent made an application for renewal.[62] The process is an online one. Although the respondent did not give evidence on oath, he told the Tribunal that he made the application for renewal because his employer, SA Ambulance Service, said that he was required to do so. The Board contended that the respondent was likely advised that he need to remain registered in order to continue to receive remuneration whilst suspended from his employment during the employer's investigation into an allegation by a co-worker in relation to the respondent. The Tribunal does not need to make findings as to the reason for the application for re-registration at this juncture, but these accounts provide some explanation as to why, in the face of his submission that he was never registered, the respondent nevertheless applied for re-registration.
3. The respondent's contention that he did not renew his registration because he was not ever effectively registered, and so was ineligible for re-registration, must be rejected in light of the finding that he was effectively registered on 22 May 2019. It was not suggested that his application for renewal was in any other way non-compliant.
4. The answer to the question as to whether the application for renewal was valid is: yes.

Does the Tribunal have jurisdiction to consider and determine the respondent's conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?

1. The Tribunal's jurisdiction with respect to the National Law arises in two ways. The Tribunal exercises original jurisdiction which is enlivened by a referral by a Board about a health practitioner or a student under s 190 of the National Law. The Tribunal may also exercise review jurisdiction when a health practitioner appeals one or more of certain decisions made by a National Board in respect of the practitioner, pursuant to s 202. This decision concerns only the exercise of original jurisdiction and only in relation a health practitioner and not a student.[63]
2. Section 196 provides that the Tribunal will "hear a matter about a registered health practitioner". This is extended by s 138 to include a matter about a person who was previously a registered health practitioner such as the respondent.
3. In Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & Ors,[64] the Supreme Court of New South Wales was required to determine the meaning of "matter" in legislation regulating the conduct of legal practitioners. Austin J said:
   1. Both the Legal Profession Act 2004 (NSW) ("the 2004 NSW Act") and the Legal Profession Act 2004 (Vic) ("the 2004 Victorian Act") define the scope of their disclosure requirements by reference to when the solicitor first received instructions in respect of a "matter".
   2. The word "matter" is not defined in either the 2004 NSW Act or the 2004 Victorian Act. It is, of course, a frequently considered word in the constitutional context, and in other contexts such as in respect of the International Arbitration Act 1974 (Cth), where it has been said that the expression "a matter" in that legislation could not have the full connotation of the phrase in the constitutional sense: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; (2006) 157 FCR 45 at [235].
   3. I do not regard the constitutional jurisprudence or, for that matter, case law on the International Arbitration Act, as having any direct assistance for the purpose of interpreting the legal profession legislation. Counsel for Mr Cunliffe drew the Court' as attention to the definition of "litigious matter" in s 3.4.2 of the 2004 Victorian Act, but I find that definition to be unhelpful because it assumes the concept of "matter" and explains what makes a matter a "litigious" matter. Nor do I find dictionary definitions of any assistance, because it seems to me that so much depends upon the context in which the word is used.
   4. It seems to me that in the legal profession legislation of 2004 in both States, the meaning of the words "a matter" and "the matter" is to be derived from a close consideration of the statutory context. In my opinion, those words refer to the subject matter of the solicitor's retainer, that is the client's cause or transaction on which the solicitor, for rewarded, is instructed to advise or act.
4. The Tribunal respectfully adopts that approach. On consideration of the context, the "matter" in s 196 of the National Law describes the behaviour that is alleged to have occurred and gives rise to the determination of whether the behaviour constitutes (relevantly, for these proceedings) professional misconduct.
5. On the fact of the complaint, each of the two allegations referred by the Board is a "matter". In other words, each concerns an allegation of professional misconduct or unprofessional conduct by the respondent.
6. As previously stated, the referral must, in accordance with s 138 (or s 139A if the current law applies) concern behaviour that occurred during any period of the respondent's registration.
7. The respondent was, in accordance with the earlier answered questions, a registered health practitioner from 22 May 2019 when the Board granted him registration until 1 December 2021 when his registration lapsed.
8. The first allegation in the Board's referral is that the respondent engaged in professional misconduct and/or unprofessional conduct in that he failed to disclose to the Board information that was relevant to the Board's consideration of his application for registration, and/or he failed to comply with s 130 of the National Law:

130 - Registered health practitioner or student to give National Board notice of certain events > > (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. > > (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. > > (2A) To avoid doubt, a registered health practitioner is not required to give the National Board written notice of an event within the meaning of paragraphs (e) or (f) of the definition of relevant event if the notification is prohibited by the Health Insurance Act 1973 of the Commonwealth. > > (3) In this section - > > relevant event, in relation to a registered health practitioner, means - > > (a) the practitioner is charged with -

(i) a scheduled medicine offence; or

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(b) the practitioner is convicted of or is the subject of a finding of guilt for -

(i) a scheduled medicine offence; or

(ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or

(c) appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner's practice of the profession; or

(d) the practitioner's right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner's conduct, professional performance or health; or

(e) the practitioner is disqualified under an agreement under section 92 of the Health Insurance Act 1973 of the Commonwealth because of the practitioner's conduct, professional performance or health; or

(f) the practitioner is subject to a final determination under section 106TA of the Health Insurance Act 1973 of the Commonwealth that contains a direction under section 106U(1)(g) or (h) of that Act that the practitioner be disqualified because of the practitioner's conduct, professional performance or health; or

(g) the practitioner's authority under a law of a State or Territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted; or

(h) a complaint is made about the practitioner to an entity referred to in section 219(1)(a) to (e); or

(i) the practitioner's registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction.

relevant event, in relation to a student, means -

(a) the student is charged with -

(i) a scheduled medicine offence; or

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(b) the student is convicted of or is the subject of a finding of guilt for -

(i) a scheduled medicine offence; or

(ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or

(c) the student's registration under the law of another country that provides for the registration of students has been suspended or cancelled.

scheduled medicine offence means an offence against a law of a participating jurisdiction -

(a) if -

(i) the law regulates the authority of registered health practitioners or students to administer, obtain, possess, prescribe, sell, supply or use scheduled medicines; and

(ii) the offence relates to registered health practitioners or students administering, obtaining, possessing, prescribing, selling, supplying or using scheduled medicines; but

(b) does not include an offence declared or prescribed by a law of the jurisdiction not to be a scheduled medicine offence for the purposes of this Law.

1. The conduct, as particularised in the first of the two allegations in the Board's complaint, refers to the respondent's conduct before and after his registration.
2. In accordance with the reasoning of this decision, the conduct that occurred prior to the respondent's registration may not be the subject of a referral because it is an allegation made about a person who is not now a registered health practitioner in respect of conduct when they were not a registered health practitioner. That aspect of the conduct is not caught by s 130, because s 130 only imposes obligations on registered health practitioners. However, as counsel for the Board observed, upon becoming registered on 22 May 2019, the respondent became subject to the requirements in s 130.
3. Section 130 imposes an ongoing obligation of disclosure which provides an avenue for the Board to refer an allegation concerning a failure to disclose that endures beyond 7 days after registration. Insofar as the first allegation concerns a breach of s 130 after the respondent was registered, it is capable of being referred and the Tribunal has jurisdiction.
4. For completeness, the National Law now contains provisions for dealing with improperly obtained registration. It confers a right on a Board to withdraw the registration, in Part 7, Division 6A. There was no evidence before the Tribunal that the Board had sought to rely upon that right.
5. The second allegation in the complaint is that the respondent engaged in professional misconduct and/or unprofessional conduct in that on or about 27 December 2019, he made a false or misleading declaration in his application to renew his registration.
6. On that date, the respondent's registration period had ended, but it was within a month of the period ending.
7. Section 107 provides that a registered health practitioner may apply for renewal of registration, prior to one month after the end of the practitioner's registration period.[65] The respondent's registration period ended on 30 November 2019. The respondent applied after, but within a month following, the end of the registration period.
8. Section 108 provides for a registration to be taken to continue in force in certain circumstances after the registration period ends:

108 - Registration taken to continue in force > > (1) If a registered health practitioner applies under section 107 to renew the practitioner's registration, the applicant's registration, including any endorsement of the registration, is taken to continue in force from the day it would, apart from this section, have ended until -

(a) if the National Board decides to renew the applicant's registration, the day a new certificate of registration is issued to the applicant; or

(b) if the National Board decides to refuse to renew the applicant's registration, the day the applicant is given notice of the decision.

(2) If a health practitioner does not apply to renew the practitioner's registration before the practitioner's period of registration ends, the registration, including any endorsement of the registration, is taken to continue in force until -

(a) the end of the day that is one month after the day the period of registration would, apart from this subsection, have ended; or

(b) if the health practitioner applies for renewal of the registration not later than one month after the practitioner's period of registration ends, the day referred to in subsection (1)(a) or (b).

(3) Subsection (1) or (2) does not apply if the registration is earlier cancelled under this Law.

1. By virtue of s 108, the respondent's registration was taken to continue in force until the date upon which a new certificate was issued to him. That date was 5 January 2021, and the certificate renewed his registration from the backdated date of 1 December 2020, until 30 November 2021.[66]
2. Accordingly, the respondent was a registered paramedic at the time of the conduct to which the second allegation is directed.
3. In respect of the first allegation, the Tribunal has jurisdiction to consider a referral regarding an alleged breach of s 130 occurring after the respondent was registered. In relation to the second allegation, the Tribunal has jurisdiction, because the allegations concern conduct when the respondent was registered.
4. Accordingly, the question:

Does the Tribunal have jurisdiction to consider and determine the Respondent's conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?

In respect of the first allegation: No. Only conduct occurring after the respondent was registered on 22 May 2019 may be the subject of a referral.

1. The questions referred for the Tribunal's consideration are answered as follows:

(1) Does the Tribunal have jurisdiction to consider and determine the respondent's conduct that occurred prior to registration under the National Law in referral proceedings commenced under s 193(1) of the National Law?

In respect of the first allegation: No. Only conduct occurring after the respondent was registered on 22 May 2019 may be the subject of a referral.

(2) Was the respondent validly granted registration by the Board on 22 May 2019?

(3) Was the respondent's application for the renewal of his registration on 27 December 2019 valid?

1. The proceedings are adjourned to a further directions hearing at a time and date to be fixed.

[1] C1. Hereafter the Book of Documents.

[5] Historical version: 21.10.2022 to 14.5.2023.

[6] [2021] SASC 16.

[7] Clause 14(2) in Schedule 7 of the National Law provides that "In this Law, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised."

[9] Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452; Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; (2005) 145 FCR 523 at 529, 539. See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Australia, 7th ed, 2011) at [4.6].

[10] [1915] VicLawRp 66; [1915] VLR 450 at 452.

[11] [2010] NSWSC 143 per Schmidt J. See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Australia, 7th ed, 2011) at [4.6].

[14] As at 22 February 2023 when the Board made its referral.

[17] Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2023.

[18] South Australia, South Australian Government Gazette, No 30, 11 May 2023, 927, 944.

[19] [1997] HCA 53; (1997) 191 CLR 85.

[20] [2004] HCA 14; (2004) 218 CLR 273, 280-281.

[21] [1997] HCA 53; (1997) 191 CLR 85, 112.

[22] Reference may be made to extrinsic materials both to ascertain the mischief and to discern the underlying purpose of the legislation in question. See Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 at 255-256 per Cox J.

[23] [2019] VCAT 467.

[26] [2023] VCAT 232.

[27] [2022] VCAT 382.

[28] [2022] VCAT 838.

[29] The National Law, Part 7, Division 3.

[30] The National Law, Part 7, Division 2.

[31] The National Law, Part 7, Division 7.

[36] The National Law, s 56. In this case, the Paramedicine Board of Australia.

[42] The National Law, s 130(3)(a)(ii).

[52] Affidavit of Daniel Hillary affirmed 31 August 2023, Book of Documents, p 66.

[53] Affidavit of Daniel Hillary affirmed 31 August 2023, Book of Documents, p 66.

[54] Affidavit of Daniel Hillary affirmed 31 August 2023, Book of Documents, p 74.

[56] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; [2002] 209 CLR 597 per Gleeson CJ at [8].

[57] Minister for Indigenous Affairs and Anor v MJD Foundation Ltd [2017] FCAFC 37.

[58] [2017] SACAT 8.

[59] [1992] FCA 414; (1992) 37 FCR 429 at 423.

[60] [1999] FCA 422.

[61] Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533.

[64] [2010] NSWSC 132.

[65] The registration period is defined in s 56 as the period established by the Board for the particular health profession.

[66] Affidavit of Daniel Hillary affirmed 31 August 2023, Book of Documents, p 67.