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PATHAK v MEDICAL BOARD OF AUSTRALIA [2026] ACAT 18 | Case summary | Zoe
For the reasons given, the decision of the Tribunal below is confirmed and the appeal must be, and is, dismissed.
In relation to costs in these appeal proceedings, we noted earlier the agreement between the parties during the hearing that this discrete issue may be determined "on the papers" in the light of the Appeal Tribunal's decision concerning the appeal. Notwithstanding this agreement between the parties, for more abundant caution, our decision regarding costs will be reserved. Within 14 days, each party is to provide a written submissions of no more than 3 pages regarding (a) the Appeal Tribunal's jurisdiction to award costs and (b) how those costs (if any) should be assessed. The decision regarding costs will be determined on the papers, being the Appeal Tribunal's reasons and the written submissions of both parties.
[2]
The original decision of the Tribunal is confirmed.
The appeal is dismissed.
The Appeal Tribunal's decision regarding costs in relation to the appeal is reserved.
Within 14 days, each party is to provide written submissions of no more than 3 pages regarding (a) the Appeal Tribunal's jurisdiction to award costs and (b) whether, and if so, how those costs should be assessed.
The issue of costs will be determined "on the papers", being the Appeal Tribunal's reasons plus the written submissions of the parties.
[3]
Appendix - a short conspectus on medical ethics
[4]
Long before the National Law, it should be recalled that the regulation of the medical profession has its roots in ethical principles which date from ancient times and which, to some degree, still undergird current regimes of regulation and discipline.[110]
Largely unchallenged tradition holds that the famed "Father of Medicine", Hippocrates (c.460 - c.370 BC), taught his students about medicine, its practice, its art, and notably ethics, while sitting or standing under a tree on the Greek island of Kos (sometimes "Cos").[111] A central feature of the Hippocratic corpus is the well-known direction that those who practice medicine are to abide by the principle of primum non nocere ("first, do no harm").[112] In more modern parlance, this is more regularly presented as one of the four principles of medical ethics: justice, beneficence, autonomy and non-maleficence ("do no harm").
[5]
The fundamentals of the Hippocratic Oath ("the Oath") go on to refer to the proper caution that a medical practitioner should exhibit in other aspects of his or her life.[113] This includes the following (emphasis added):[114]
[6]
I will keep pure and holy both my life and my art. ... Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption; and, further from the seduction of females or males, of freemen and slaves.
[7]
Later ethical statements, such as the Declaration of Geneva 1948 (amended 2017), published by the World Medical Council, omit any such reference but instead state, among other things: "I WILL PRACTICE my profession with conscience and dignity and in accordance with good medical practice; I WILL FOSTER the honour and noble traditions of the medical profession." This Declaration begins: "I SOLEMNLY PLEDGE to consecrate my life to the service of humanity" and concludes stating: "I WILL NOT USE my medical knowledge to violate human rights and civil liberties, even under threat." More recently still, the Medical Board of Australia maintains a separate code of conduct for doctors entitled "Good Medical Practice." Under the heading "Professionalism", there is the injunction: "The community trusts the medical profession. Every doctor has a responsibility to behave ethically to justify this trust." And further, in the section "Professional Behaviour", it states: "In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct." All these historical references are for context and comparative purposes only; as earlier stated in these reasons, they do not affect the Appeal Tribunal's discussion and decision in the current matter.
Foundational to all professions, but perhaps most especially the medical profession, is the trust and respect that patients, and the general public, place in those who practice this ancient and crucial art of bringing healing, comfort and health to members of the community who are often at their most vulnerable. It is no surprise, therefore, that historically and otherwise, those who breach such trust and respect are usually subject to discipline and sanction. Put another way, all codes - ancient and more modern - have the dual goals of protecting vulnerable patients, and by guiding practitioners in the conduct of their profession, of protecting medical practitioners also.
[8]
[1]Pathak v Medical Board of Australia[2025] ACAT 35. There was an ancillary appeal relating to the tribunal refusing a stay of the Board's Orders ([2025] ACAT 18). However, during the course of the hearing of this appeal, the Appellant's Counsel confirmed that the appeal in relation to the stay (Ground 4 of the "Reasons for Appeal") was effectively moot and was not now pressed. See transcript of hearing dated 15 August 2025 at page 69. Hereafter, transcript references will simply be "T" followed by the page number. In this decision, references to 'Tribunal' or 'Tribunal below' refer to the original tribunal whose decision is under review and references to 'tribunal' are to the ACAT generally
[9]
[2] The relevant employees were aged between 17 and 21 at the start of their employment with the Appellant. In his submissions, Counsel for the Appellant described the complainants as "four women of early adult age." See T 10
[10]
[3] See the Affidavit of Mr McKenna, filed on behalf of the Appellant, on 14 August 2025, which outlines the reasons for this estimate and related matters
[11]
[4] Not directly related to the issues to be decided in this appeal, it could be argued elsewhere that the facts presented to the Board and to the Tribunal below expose potentially significant breaches of various ethical obligations. Because those obligations are not directly related to any of the Grounds of Appeal they are not considered here and do not inform our consideration of the legal and factual issues in dispute. That said, in an Appendix to these reasons, very summarily, we have outlined some history from the time of Hippocrates regarding the ethical regulation of medical practitioners. In some of the cases discussed in the course of these reasons it will be noted that there is occasional reference to various other medical regulatory codes
[12]
[5] Details of the charges are set out in the Australian Federal Police, Statement of Facts, located at pp.54-79 of the volume of materials described as Item 17 to the Joint Appeal Book. This same volume contains seven Notifications regarding "concerns about the Appellant" between 17 December 2024 and 24 January 2025
[13]
[6] This was recorded at [12] of the Tribunal's decision of 20th May 2025. The detailed letter containing the Board's decision, dated 25 February 2025, is at pp.151-160 of Item 16 to the Joint Appeal Book
[14]
[7] This document is at pp.1-7 of the Joint Appeal Book
[15]
[10]Allinson v General Council of Medical Education and Registration[1894] 1 QB 750
[13]Giusida Pty Ltd v Commissioner for ACT Revenue[2016] ACTSC 275. His Honour's reference in [14] in "Legal Practitioner" is obviously a reference to subsections 82(1)(a) and (b); the reference to sub-section (1) has been omitted
[16] For current purposes, it is unnecessary to set out the terms of sections 157-159. It is sufficient to note that section 157 sets out the "show cause" process that must be followed when the Board is considering taking "immediate action", while sections 158 and 159 deal with the giving of notice to the health practitioner against whom it is proposed to take immediate action, and the period of immediate action
[22]
[17]Brooks v Federal Commissioner of Taxation[2000] FCA 721 at [66]. For a wider discussion, see P. Herzfeld & T. Prince, Interpretation (Sydney: Lawbook Co, 3rd ed, 2024) Chapter 5 "Parts of an Act" pp.110_ff;_ DC Pearce, Statutory Interpretation in Australia (Sydney: LexisNexis, 10th ed, 2024) [4.102].
[23]
[18] We simply record here that there are multiple parts of the National Law, which refer specifically to the requirement of a National Board to make inquiry into the criminal record of the registered health care practitioner. For current purposes, it is unnecessary to consider those sections.
[24]
[19] Given that no "child" is involved in the current proceeding, it is unclear why this provision was included in the submissions
[25]
[20] Simply as an observation only, with no direct or indirect import for the current proceeding, including this appeal and its determination, there are, of course, abundant and very specific laws that deal with the "right" to work in a safe environment, including one that is free from sexual harassment. Among many places, see the detailed discussion in Creighton and Stewart's Labour Law (Sydney: The Federation Press, 7th ed, 2025) Chapter 18 "Work Health and Safety". As noted below, the Respondent's submissions referred to (a) the complainants being employees of the Appellant, and (b) a number of incidents that gave rise to the charges occurred at work-related events.
[26]
[28] See T 12. As will be seen later in these reasons, there is case law that refers specifically to the requirement to have regard to the nature and volume of charges. What is also curious in relation to this submission and its criticism of the decision below is that in [19] of his Case Outline, the Appellant's Counsel stated that one of the flaws in the decision below was because "the Tribunal conducted an assessment of serious risk without consideration of the strength (or weakness) of the Crown case and assumed that the offences charged were appropriate to the conduct alleged." As we discuss later, to have done more than the Tribunal below did may well have risked it being accused even more directly of undertaking an assessment of the likely or possible guilt of the Appellant, as opposed to the proper task of assessing the possible "risk" posed by him. To put it even more plainly: there is an obvious and critical difference between, on one hand, an assessment of guilt or innocence in a Court according to the usual criminal standard, and on the other hand, an assessment of "risk" based upon the usual civil standard.
[40] T 31. Counsel for the Respondent referred to two decisions, which provide, he said, a useful summary of the statutory framework: Hocking v Medical Board of Australia[2015] ACAT 22 at [10] - [13]; Ghosh v The Medical Council of New South Wales[2020] NSWCA 122. Counsel noted (as we did above) that section 156 sits within the provisions in Part 8 of the National Law, which includes provisions relating to "notifiable conduct", and the relevant authority making a preliminary assessment of matters before embarking upon "immediate action". We do not canvass the NSW provisions unless specifically required in the discussion of the case law.
[43] T 34-35. Medical Board of Australia v Leow[2019] VSC 532. This decision was recently considered approvingly regarding the operation of section 156 of the National Law by the Western Australian Supreme Court, Court of Appeal, in Medical Board of Australia v GLP[2025] WASCA 87
[32]
[45] Regarding the exercise of discretion, and the examination of reasons on appeal generally, Counsel also noted obliquely the propositions articulated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6 at [25] that "the reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
[57] We note that in Medical Practitioners Board of Victoria v Lal[2009] VSCA 109; (2009) 23 VR 702, the Victorian Court of Appeal commented on "public interest", stating, at [56]: "The public interest is a protean concept. What is relevant to the public interest depends on the statutory context in which the concept is used. Its content cannot be confined by reference to any predetermined generic criteria."
[37]
[63] J D Heydon, Cross on Evidence (Sydney: LexisNexis, 14th ed, 2024) (Cross) ch 4 "The Burden of Proof and Presumptions"; "Presumption of innocence" at [7080]-[7090]
[38]
[64]Woolmington v DPP [1935] AC 462 at 481. The same basic point was made by the Privy Council in Khan v State of Trinidad and Tobago[2003] UKPC 79; [2004] 2 WLR 692 at 700 (Lord Bingham). Again, the focus, as in Woolmington, was upon the onus of proof in criminal cases resting on the prosecution. Khan is listed in Ross on Crime (Sydney: Lawbook Company, 9th ed 2022) at [16.3715], as referring to the "presumption of innocence" as a "rebuttable presumption."
[66] Denning at 381. Lord Denning's views here were later cited in multiple decisions, noted in Cross, at [7005], fn 17
[41]
[67] See J. Stone, "Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd" (1944) 60 Law Quarterly Review 262
[74] See Garfath v Garfath (1959) SR (NSW) 362 at 363 (quoting Wigmore, who quotes others who need not be further referenced)
[47]
[75] Section 140 of the ACT Evidence Act provides (emphasis added):
[48]
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
[49]
(2) Without limiting the matters that the court may take into account in deciding whether it is satisfied, it must take into account -
[50]
(a) the nature of the cause of action or defence; and
[51]
(b) the nature of the subject matter of the proceeding; and
[52]
[76] See, I. Freckleton SC, "Regulation of Health Practitioners: National Reform in Australia," (2010) Journal of Law and Medicine 207; OM Bradfield, MJ Spittal and MM Bismark, "In Whose Interest? Recent Developments in Regulatory Immediate Action against Medical Practitioners in Australia" (2020) 28 Journal of Law and Medicine 244; and OM Bradfield, MJ Spittal and MM Bismark, "Protection, Prevention or Punishment? A Cross-Jurisdictional Analysis of Regulatory Immediate Action against Medical Practitioners" (2022) 29 Journal of Law and Medicine 85. Generally, see also F. McDonald, ch 16 "Regulation of Health Professionals and Health Workers" in B. White et al, Health Law in Australia (Sydney: Thomson Reuters, 4th ed, 2024)
[53]
[77] See also the Court's detailed comments at [55]-[64] and [73]-[102]
[79][2018] VCAT 1619. This decision was by an Appeal Tribunal and dealt specifically with the "immediate action" provisions of the National Law
[56]
[80] This decision is discussed at length by Bradfield, Spittal and Bismark, in 28 JLM at 253-254. A number of the comments here are taken from this article. Further, the decision in Farshchi v Medical Board of Australia[2018] VCAT 1619 is compared and contrasted with a no less significant recent decision of VCAT in CJE v Medical Board of Australia[2019] VCAT 178, which involved a consenting sexual relationship between two male doctors, but which involved the additional issues relating to protective and unprotected sex (a claim of "stealthing", which led to a charge of rape, was part of the legal and factual matrix) and the risk of transmission of HIV. This case is also discussed in detail in the same issue of 28 JLM at 255-257
[57]
[81] We observe again the use by the Tribunal of relevant health care "Codes". As earlier mentioned, the Appendix to these reasons outlines briefly some very long-standing (indeed ancient) ethical principles in relation to the regulation of the medical profession, beginning with Hippocratic Oath
[58]
[82] See the discussion of the strict supervisory role at [108] - [125] of VCAT's reasons
[59]
[83] Many more recent cases from across Australia under the National Law are collected and discussed in the two articles, earlier referred to, by Bradfield, Spittal and Bismark from the Journal of Law and Medicine. Again, the collections of cases referred to there show how fact-specific such cases necessarily are, and likewise how the evaluative, discretionary process can vary
[90][1994] HCA 15. See also the High Court's slight expansion of principle to include "fundamental principles" in Saeed v Minister for Immigration and Citizenship[2010] HCA 23 at [58]
[67]
[91] Second Reading Speech for Health Practitioner Regulation National Law and Other Legislation Amendment Bill, Cr Dick Minister for Health and Minister for Ambulance Services, dated 6 September 2017, 2716
[68]
[92]Brooks v Federal Commissioner of Taxation [2000] FCA 71
[96] See In re Judiciary and Navigation Acts[1921] HCA 20; (1921) 29 CLR 257 at 265. Among many later cases that discuss what constitutes a "matter" for the purposes of section 109 of the Constitution, see the exhaustive discussion by the individual members of the High Court in Re McBain; Ex parte Australian Catholic Bishops Conference[2002] HCA 16; (2002) 209 CLR 372
[73]
[97] See [24]-[27] of the Respondent's primary [August] submissions; and [5] & [6] of its Case Outline
[74]
[98] For example, see Minister for Immigration and Ethnic Affairs v Pochi[1980] FLR 87
[103]Coulton v Holcombe[1986] HCA 33 at [9]; University of Wollongong v. Metwally (No. 2)[1985] HCA 28. The decision in Metwally has very recently been re-opened and overruled by the High Court, but not on the procedural point here. See G Global 120E T2 Pty Ltd v Commissioner of State Revenue[2025] HCA 39 at [89]
[80]
[104] See his July Submissions at [17]-[18]. For reasons given earlier, we will not canvass the issue raised by the Appellant at [19] of his submissions regarding "inconsistency" and section 109 of the Constitution
[81]
[105] Transcript of proceedings dated 15 August 2025, page 12 lines 35-39
[109] See, for example, the almost legendary comments in the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21 at [40]: "Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." Accepting the very different context, and that there was no submission that the Tribunal's decision was "unreasonable", the basic point regarding "strong disagreement" nonetheless holds true here
[85]
[110] Among many places, see the two contributions to the festschrift for a modern expert in medical law and ethics, Professor Ken Mason, by Professor K Boyd (University of Edinburgh) and Professor I Freckleton SC (Monash University), respectively "Medical Ethics: Hippocratic and Democratic Ideals", and "Contemporary Challenges in the Regulation of Health Practitioners" in First Do No Harm: Law, Ethics and Healthcare (ed. Professor S. McLean, University of Glasgow) (Aldershot: Ashgate, 2006) 29-38; 39-58.
[86]
[111] Among other places, see M.B Van Der Weyden, "From the Editor's Desk: The Tree of Hippocrates," (5th September 2005) 183 Medical Journal of Australia 225. It is unnecessary for what follows to canvass some of the academic dispute as to whether the famous medical edict simply known as the Hippocratic Oath was actually formulated, not by Hippocrates, but at a later time by the highly regarded philosopher and physician, Galen (died c.216 AD), or even more recently.
[87]
[112] The significant doubts about the origin of this aphorism being formally linked to the Hippocratic are well-known. For current purposes, however, it is unnecessary to survey, even briefly, such matters, except to note that primum non nocere does not appear in The Oath, but rather a form of it is found in the extensive Hippocratic writing known as The Epidemics, specifically in Book 1, Section 11. Generally, see E.M Craik, The Hippocratic Corpus: Content and Context, (London: Routledge, 2015) Chapter 13; and C.M. Smith, "Origin and Uses of Primum Non Nocere - Above All, Do No Harm!" (2005) 45 The Journal of Clinical Pharmacology 371-377.
[88]
[113] Scholars have noted that the Oath is closely linked in its precepts to other parts of the Hippocratic corpus, such as The Law, In the Surgery, Precepts, On Decorum and On the Physician. Indeed, at the outset of On the Physician, the writer enjoins the physician to be appropriately correct in physical demeanour, social conduct, and moral attitudes.
[89]
[114] The version of the Hippocratic Oath used here (emphasis added) is as published by the University of Michigan, with some additional text from the classical 1923 Loeb Edition, Vol.147 at pp.298-299. We have not consulted the more recent 2022 Loeb edition. The last sentence quoted here in the Loeb Edition reads: "I will abstain ... especially from abusing the bodies of man or woman, bond or free." The semi-critical edition of most if not all of the entire Hippocratic Corpus notes the following translation of this rather crucial aspect of the famous medical oath: "... I will abstain from all conscious wrongdoing and harm, especially from sexual relationships with women or men, slave or free ..." See Elizabeth M Craik, The Hippocratic Corpus: Content and Context, (London" Routledge, 2015) 145. The original Greek word used in the Oath is aphrodisaon (transliterated, of course). According to Liddell and Scott's magisterial Greek - English Lexicon (Oxford: Clarendon Press 1968) p.293, this word and its cognates always refer to lustfulness and sexual pleasures culminating in sexual intercourse. One of those cognates is Aphrodite, the Greek goddess renowned for seductive and deceptive charm.
Parties
Applicant/Plaintiff:
PATHAK
Respondent/Defendant:
MEDICAL BOARD OF AUSTRALIA
Legislation Cited (9)
Civil and Administrative Tribunal Act 2008(ACT)
Administrative Tribunal Act 2008(ACT)
Rights Act 2004
Human Rights Act 2004
Poisons and Controlled Substances Act 1981
Human Rights and Responsibilities Act 2006
Practice Act 1992
Discrimination Act 1984
Appeals Tribunal Act 1975
Cases Cited (47)
PATHAK v MEDICAL BOARD OF AUSTRALIA (Appeal) [2026] ACAT 18 (20 April 2026)
Legislation cited:ACT Civil and Administrative Tribunal Act 2008 ss 64, 65, 82
CR Williams, 'Burdens and Standards in Civil Litigation' (2003) 25(2) Sydney Law Review
E M Morgan, 'Presumptions' (1937) Washington Law Review 255
J D Heydon, Cross on Evidence (LexisNexis, 14th ed, 2023)
As is evident, section 82(1) records the two options available to this Appeal Tribunal regarding the nature of the hearing of the appeal (new Application or re-hearing), while sub-section (2) outlines the courses available to the Appeal Tribunal consequent upon the findings made. Respectfully, the infelicitous if not opaque wording of sub-section (1) clouds, rather than illuminates, what the nature of the hearing of the appeal entails. In a helpful and important decision regarding appeals from the tribunal, similar comments were made and instruction given by Refshauge J in Giusida Pty Ltd v Commissioner for ACT Revenue (Giusida)[13], who said, at [36] - [38]:
In Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [13]- [14], I had this to say about s 82 of the ACT Civil and Administrative Tribunal Act:
The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as 'hearing de novo' and 'rehearing'. These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).
It seems to me that the appeal in s 82(a) is what is usually called a 'hearing de novo' and that the appeal in s 82(b) is what is usually called a 'rehearing'.
I see no reason to resile from or change my view about the proper meaning of s 82 of the ACT Civil and Administrative Tribunal Act as here expressed. Indeed, careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and generous power is intended and not one which restricts original decisions from proper scrutiny.
Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be "manifest", "obvious" or other than an error discernible by a proper assessment of the evidence and the law.
Below are the Appellant's original submissions, dated 25 July 2025, followed by his Case Outline, dated 14 August 2025. This latter document refers to the Appellant's amended (and expanded) Grounds of Appeal that were filed on 4 August 2025, which are set out above. The Appellant's primary [July 2025] submissions were as follows (emphasis in original):
These submissions are in support of Dr Rajeev Pathak's Application for Appeal filed 16 June 2025.
The appeal is brought pursuant to section 79 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
The appeal (Grounds 1- 3) concern the decision in PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 35. Ground 1 asserts multifaceted errors of law, whilst Ground 2 and 3 assert errors of mixed fact and law.
Ground 4 concerns the Tribunal's determination of Dr Pathak's stay application: PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 18. Ground 4 asserts that a stay ought to have been granted - effectively repeating the contentions underlying the challenge to PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 35.
The Tribunal erred in determining not to grant a stay of the Board's order in PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 18.
The Tribunal erred in finding that the presumption of innocence is a presumption of fact (judgment at [124]).
The presumption of innocence is fundamental to the operation of the criminal justice system (Woolmington v DPP [1935] AC 462) and is "an emphatic caution against haste in coming to a conclusion adverse to a prisoner." Stephen, A General View of the Criminal Law of England, 2nd ed (1890) at 183, cited in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 352, per Starke J.
The presumption is both a foundational common law principle, and is subject to protection under the Human Rights Act 2004 (the Rights Act). It is a presumption of law not of fact.
The Rights Act governs the conduct of the Crown (and the Tribunal): see, section 40.
Section 5 of the Rights Act provides:
Although expressed to be a right in criminal proceedings, it has, by the principle of legality, broader application.
In Momcilovic v The Queen [2011] HCA 34, the Court considered a provision of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which sought to place a legal burden of proof upon the accused in respect of drug possession (section 5). At [44], French CJ held:
Section 157 concerns notice provisions that here do not require consideration.
The example of when action "may" be taken in the public interest is curiously framed (seemingly an addition to section 156 in response to the New South Wales Court of Appeal's decision in Pridgeon v Medical Council of NSW [2022] NSWCA 60).
However, the example does no more than potentially supplement understanding of the operation of section 156 (1)(e): it suggests that an encroachment upon the presumption of innocence may be in the public interest.
However, the imperative to take immediate action in the circumstances will likely often be informed by an assumption (or assumptions) of guilt.
One can imagine circumstances where the bringing of a criminal charge against a medical practitioner concerning conduct unrelated to practice, may give raise to a need to protect public confidence. However, this was not such a case. There was no evidence before the Tribunal of any loss of public confidence (and the asserted basis for concern requires a series of baseless assumptions).
There is no 'presumption' that action will or should be taken when criminal charges are pending: Medical Board of Australia v Liang Joo Leow [2019] VSC 532, at [83]-[85].
The emergency power in section 156 is directed towards protection of the public in the public interest, not professional discipline and has limited function in respect of broader reputational or disciplinary concerns: see for example, Kirby v Dental Council of NSW [2020] NSWCA 91, at [15].
Query whether the legislature could require action under section 156 (1)(e) of the National Law that infringes upon the presumption of innocence. Schedule 7, Part 2, Clause 2, of the National Law provides:
The balance of the import of the National Law and the requirements of the Rights Act calls for interpretation so as not to arrive at an inelegant construction. On one view, no action is warranted as to take action under section 156 of the National Law infringes upon the presumption, offends the principle of legality, and is obtuse to the absent link between the practice of medicine and the conduct alleged. The "serious risk" cannot be made out.
If it could be established that there was a need to take action in the public interest (a point that is not conceded) the imposition of conditions would represent the least restrictive means reasonably available
Finally, to the extent that it can be argued that the issue was not raised in this way below, it is permissible under section 79 of the ACAT Act, and in any event the application of the Rights Act is arguable as a question of law, and does not depend upon evidence: Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, (at [9]).
Central to the appeal is the common law presumption of innocence, its application to the appellant's circumstances, and the operation of the principle of legality, the National Law, the Human Rights Act 2004 (ACT), and the ACT Civil & Administrative Tribunal Act 2008 (ACT).
The National Law provides for the regulation of health practitioners in the interests of the public (the latter's interest is paramount).
The Tribunal's decision has two limbs:
that because the appellant had been charged (and that the determination of the charges was pending), he posed a future risk to the public: section 156(1)(a);
it was otherwise in the public interest that the appellant's registration be suspended: section 156(1)(e).
It cannot be said that the National Law operates so as to make axiomatic (Medical Board of Australia v Liang Joo Leow [2019] VSC 532, at [83]-[85]) that there is a serious risk to persons, nor that it is in the public interest that a registered health practitioner charged with a serious offence (or offences) unrelated to the practice of medicine ought to be the subject of immediate action, let alone suspension of registration: the example in section 156 of the National Law only identifies that "action may be taken". An evaluative judgment is required.
The question becomes what is to be evaluated (as in what criteria ought to be applied to the assessment)? Whilst not intended to be exhaustive, a consideration of factors such as the following ought to inform the assessment:
whether there is evidence of public concern about the alleged conduct of the practitioner;
any intersection between the alleged criminal conduct and the practitioner's practice;
whether a plea of guilty has been entered in respect of any or all of the charges (making rebuttable the presumption of innocence DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 (at [26] and [35]);
whether there are bail conditions and their content;
a history of prior conviction;
At the outset, it is necessary to identify the nature and scope of the appeal.
Pursuant to s 79(3) of the ACAT Act, an appellant may appeal "on a question of fact or law". Section 82 of the ACAT Act provides that the Tribunal may, as it considers appropriate, deal with an appeal as a new application (pursuant to ss (1)(a)); or deal with an appeal as a review of all or part of the original decision on the application (pursuant to ss (1)(b)): see Legal Practitioner v Council of Law Society of ACT [2015] ACTSC 316 at [76] per Burns J. On 27 June 2025, the Tribunal ordered that the appeal proceed as a review of the original decision (i.e. under s 82(1)(b) of the ACAT Act).
Although not stated expressly, the appellant evidently approaches the appeal on this basis, namely the approach stated in s 82(1)(b). The appellant has not applied for a hearing de novo, has not sought leave to advance new evidence, and has limited his challenge to the Tribunal's decision to various legal errors that he contends were made by the Tribunal.
The appeal is thus relatively narrow in scope. The appellant does not challenge:
In those circumstances, even if the Tribunal were persuaded that there was some legal error in the Tribunal's reasons (which it should not be, for the reasons set out below), then the appellant would also need to establish that such error could sensibly have affected the Tribunal's substantive reasoning such as to be material: see Reimers v Medical Board of Australia [2024] NSWCA 164 at [78] per Leeming JA (with whom Kirk JA and Griffiths AJA agreed); Dunne Trading as ACT Gutter Service & Anor v Lengyel & Anor (Appeal) [2024] ACAT 57 at [19], citing Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [39]; Kaufhold v Huang & Anor (Appeal) [2021] ACAT 62 at [16]. The appellant has not done this.
Moreover, as the appellant acknowledges at AS, [36], the core arguments advanced by him on appeal were not advanced before Presidential Member Lucy at all, despite the appellant being represented by senior and junior counsel at that stage: T [50].
Generally speaking, a party is bound on appeal by the way their case was put at trial: Metwally v University of Wollongong (1985) 60 ALR 68 at 70 per the Court; Liftronic Pty Ltd v Unver (2001) 179 ALR 321; [2001] HCA 24 at [64(6)] per Kirby J. In particular, no point may be taken on appeal which could possibly have been met by evidence from the opposing party: Robalino v Idameneo (No 123) Pty Ltd [2010] NSWCA 278 at per Young JA (with whom Campbell and Macfarlan JJA agreed).
The appellant contends at AS, [6], [7] that his "central" point in relation to all of his grounds of appeal is that the decision of the Tribunal "was infected by assumptions of Dr Pathak's guilt in respect of the offences", contrary to the presumption of innocence.
This point lacks a basis in the Tribunal's reasons. The Tribunal expressly stated at T [64] that it was not necessary for it to make findings of guilt or innocence. It then stated at T [68] that it was not making any such findings. This approach was consistent with authority. The power to take immediate action may be exercised if the Board (and, on appeal, the Tribunal) "reasonably believes" that the appellant poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety, or if the Board "reasonably believes" the action is otherwise in the public interest. This is a "low threshold": Hocking v Medical Board of Australia [2015] ACAT 22 (Hocking) [33]. In Hocking, the Tribunal endorsed at [32] the observations of a VCAT Panel in MLNO v Medical Board of Australia [2012] VCAT 1613 at [4], as follows:
The Tribunal did not assume that the appellant is guilty of any of the charges. To the contrary, at T [124] it approached the case on the basis that the presumption of innocence had the result that (absent proof to the contrary) the appellant should be assumed, as a matter of fact, to be innocent.
The appellant states at AS, [7], [10] that it was an error for the Tribunal to state at T[124] that the presumption of innocence is a "presumption of fact".
This criticism of the Tribunal is not well-founded. Presidential Member Lucy stated at T [124] that the presumption of innocence is "effectively, an aspect of the operation of the onus of proof in criminal proceedings", such that it was to be presumed that a person is innocent unless they are proven guilty.
There was no error in that approach. As was said in R v Godfrey [2018] SASCFC 93 at [19] per Rice AJ (with whom Kelly and Bampton JJ agreed), "[t]he presumption of innocence is the corollary of the principle that the onus or burden of proof rests upon the prosecution to prove guilt beyond reasonable doubt". The same approach was taken in the civil context by Campbell J in Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 at [34]- [38].
21. At AS, [11]-[12] the appellant contends that the presumption of innocence is fundamental to the operation of the criminal justice system and a foundational common law principle. This is accepted. The Tribunal did not suggest to the contrary in its reasons.
At AS, [26], the appellant relies on the decision in Medical Board of Australia v Leow [2019] VSCA 532. However, in that [decision] Niall JA held that it was permissible for VCAT to take into account the presumption of innocence, not that VCAT was required to ignore criminal charges because of the presumption of innocence: [59], [62], [113].
The appellant contends that the Tribunal failed to consider and apply the Rights Act. At the outset, it should be noted that the appellant placed no reliance on the Rights Act during the proceedings before Presidential Member Lucy. This is fatal to the point being run on appeal. Allegations of contravention of human rights inevitably give rise to evidential questions as to whether the impugned conduct was reasonable and justified (see, for example, s 28 of the Rights Act). In those circumstances, it is incumbent upon the Court to "robustly examine the evidence" on this issue: Davidson v Director-General, Justice and Community Safety Directorate (2021) 18 ACTLR 1; [2022] ACTSC 83 at [356] per Loukas-Karlsson J. No party led any evidence on this issue before Presidential Member Lucy, because no complaint was made by the appellant that his rights under the Rights Act had been contravened.
Without prejudice to the above, the appellant's arguments are, in any event, without merit.
First, the appellant proceeds on the erroneous basis that the Rights Act governs the conduct of the Tribunal in relation to this matter, referring to s 40 of the Rights Act: at AS, [13].
However, the Tribunal does not fall within section 40(1) of the Rights Act. The Tribunal is expressly excluded from the definition of public authority in that provision as it is a "court" within the meaning of s 40(2)(a) of the Rights Act: Dictionary, Rights Act. This is fatal to this ground of complaint.
Second, contrary to AS [33], the National Law is not to be construed in accordance with the principles in the Rights Act, as it would be inconsistent with its purpose to do so: s 30 of the Rights Act. The object of the National Law is to establish a national registration and accreditation scheme: s 3(1) of the National Law. It would be inconsistent with the object of the National Law to apply different rules of interpretation or principles for the purpose of the National Law in the ACT alone. Consistent with this, the National Law has a self-contained set of principles regulating how its provisions should be interpreted in each participating jurisdiction: Schedule 7, the National Law. It is also noteworthy that the National Law (as force in the ACT) is an adoption of a schedule of Queensland legislation, which is itself not subject to the Rights Act.
As the appellant acknowledges at AS, [16], the presumption of innocence is "a right in criminal proceedings" not administrative proceedings such as those presently before the Tribunal. The appellant nevertheless contends that the presumption of innocence may have "broader application" by reason of the "principle of legality".
The appellant did not raise or rely on the principle of legality in the proceedings before Presidential Member Lucy.
In any event, the "principle of legality" is a principle of statutory construction to the effect that the legislation should be presumed not to interfere with fundamental common law rights: see, for example, Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The right to work is not a fundamental common law right: Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 at [104] per Bell P (with whom Meagher JA and Leeming JA agreed).
Further, the principle of legality can only have any potential work to do where a statutory provision would, on one open construction, infringe the relevant right. That was what occurred in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 (Momcilovic), because that case was concerned with legislation that had the potential to affect the operation of the presumption in criminal proceedings: see [43]-[44] (per French CJ), [512] (per Crennan and Kiefel JJ).
Contrary to AS, [20]-[23], [28] the National Law does not have the potential to affect the operation of the presumption in criminal proceedings. Section 156 is not concerned with the outcome of criminal proceedings at all. Indeed, as noted above, the jurisdiction is avowedly not concerned with making findings of guilt or innocence. As a result, contrary to AS, [29], no "question of constitutional validity" of the National Law arises.
This is the Medical Board of Australia's case outline pursuant to the orders of Acting Presidential Member Neville on 8 August 2025. The Board refers to its written submissions dated 8 August 2025 (RS)
Decision appealed against, RS, [1]-[3]: The appellant appeals from the decision of the Tribunal (Presidential Member Lucy) on 20 May 2025 (JAB/8-55). By that decision, the Tribunal dismissed an appeal by the appellant from the decision of the Board to take immediate action against him (in the form of a suspension) under s 156 of the National Law. The immediate action taken in the Board Decision, and upheld by the Tribunal, arose from very serious criminal charges that had been issued against the appellant (Exhibit R1, tab 11).
Nature of the appeal, RS, [6]-[13]: The appeal takes the form of a review of the Tribunal's decision (rather than a hearing de novo) pursuant to s 82(1)(b) of the ACAT Act. The appellant must show error in the decision below, bearing in mind the advantages enjoyed by the first instance decision-maker: Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]. The appellant is bound on appeal by the way he put his case at trial: Metwally v University of Wollongong (1985) 60 ALR 68 at 70. If there is some error demonstrated, then the appellant must demonstrate that this error was material: Dunne Trading as ACT Gutter Services & Anor v Lengyel & Anor (Appeal) [2024] ACAT 57 at [19].
Ground 1(i), RS, [15]-[23]: The Tribunal did not err in mischaracterising the presumption of innocence. The Tribunal correctly identified that it did not need to make findings of fact (Hocking v Medical Board of Australia [2015] ACAT 22 at [33]), and that the presumption of innocence was the corollary of the principle that the onus or burden of proof rests upon the moving party (R v Godfrey [2018] SASCFC 93 at ).
(g) In the same place, Counsel submitted that all that was happening before the Tribunal below was it "... considering the charges and their gravity and reaching a conclusion about whether, in the tribunal's evaluative opinion, that justifies a suspension, or justifies immediate action at the first stage, and then the nature of the immediate action being suspension. There's no error of principle, in my submission, in those paragraphs ...". This led to a discussion, albeit a brief one, where the Respondent accepted the inquiry from the Appeal Panel that, because the Tribunal below was exercising its discretion in relation to the facts and the terms of section 156 of the National Law, the well-known principles of House v R[1936] HCA 40 (House v R) otherwise apply. These principles are set out and discussed later in these reasons.[45]
(h) Counsel then moved to a closer examination of the reasons of the Tribunal under appeal, beginning at [64]. The focus was on the Tribunal confirming that it was not embarking upon a "detailed inquiry", that the Tribunal may base its reasons on material that would not conventionally be considered to be evidence or be admissible. Counsel also noted that the Tribunal confirmed, at [68] that it was not making any "definitive findings". He noted that the Tribunal's determination regarding immediate action was based upon the gravity of the charges the Appellant is facing, noting also the acceptance of the Appellant's Senior Counsel during the hearing (at [67]) of the gravity of the charges, which involve more than one complainant, and events that took place over a period of time.
(i) Still regarding the presumption of innocence, Counsel for the Respondent recalled that this presumption was "an aspect of the operation of the onus of proof in criminal proceedings, [and that] it is a presumption of fact ...".[46] There was general reference to Woolmington v DPP (Woolmington) relied upon by the Appellant regarding the presumption of innocence.[47] The Respondent's submission was that there was no error in the Tribunal's decision below regarding the presumption, notably in its consideration of and relevance to the (legal) burden of proof in criminal proceedings.[48] In the light of the discussion later in these reasons regarding the presumption, we simply note here the long-standing distinction between a legal burden of proof and an evidentiary burden of proof. This not insignificant distinction, noted by Gleeson CJ in was not discussed or noted by either party.
The Tribunal [in CJE v Medical Board of Australia [2019] VCAT 178 at [21]- [23]) referred to the Explanatory Memorandum which accompanied the introduction of s 156(1)(e) and observed that whether a health practitioner being charged of a serious offence will give rise to the need for immediate action is a matter for judgment in the particular case.
(3) Consequences of suspension The exercise of the power to suspend can be described as 'draconian' and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law)
As we near the end of the outline of principle, there remains only brief consideration here of "public interest" as used in section 156(1)(e), followed by a small miscellany of matters regarding (i) the exercise of discretion, (ii) the principle of legality and (iii) statements from the Explanatory Memorandum and Second Reading Speech in relation to section 156(1)(e) when first introduced into the National Law.
In McKinnon v Secretary, Department of Treasury[2005] FCAFC 142; (2005) 145 FCR 70 (McKinnon), Tamberlin J held (at [9]-[11]) that the expression "in the public interest":[85]
[6] It is clear that error must be established, in the sense of showing that some aspect of the trial judge's reasoning, or conclusions reached, are wrong: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]- [25]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 (Moroccanoil) at [45]; see also [4]-[7]. The identification of error remains indispensable, whether that be in relation to a step in the reasoning process, or even just by reason of the result arrived at: Moroccanoil at [49]; Lee v Lee at [56]. If the Full Court concludes that a judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings: Fox v Percy at [29]; Robinson v McDermott at [43].
... in a recent decision of six Justices of this Court - University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71 - the Court said:
(1950) 81 CLR 418
(2011) 257 FLR 118
(1938) 60 CLR 336
(1985) 60 ALR 68
(2001) 179 ALR 321
(2018) 54 VR 174
(2003) 58 NSWLR 188
(2021) 18 ACTLR 1
(2011) 242 CLR 573
(2021) 106 NSWLR 520
(2011) 245 CLR 1
(2020) 102 NSWLR 303
(2019) 266 CLR 129
(2005) 145 FCR 70
(2003) 214 CLR 118
(2016) 331 ALR 550
(2001) 117 FCR 424
(2018) 261 FCR 301
(1985) 59 ALJR 481
(1931) 46 CLR 73
(2009) 23 VR 702
(2022) 108 NSWLR 263
(1921) 29 CLR 257
(2002) 209 CLR 372
For the sake of convenience if not completeness, we simply note that, notwithstanding His Honour's well-known care and attention to authority, he did not refer to at least one High Court decision, and others relating to "appeals." For example, in Turnbull v New South Wales Medical Board, two members of the NSW Court of Appeal (Moffitt P and Glass JA), separately commented on the different features, and often disparate nature of, appeals. Glass JA in particular noted that there are six different kinds of appeal, whereas Moffitt P outlined what he saw as the primary differences in appeal, namely those that involved a re-hearing or those that focussed upon errors in the judgment below.[14] His Honour said:
the practitioner's history of engagement (including co-operation) with the Medical Board, AHPRA, or the HCCC;
the nature of the practitioners practice and the availability of such services (a question of public interest);
the conditions (and efficacy of those conditions) that the practitioner could be ordered to be subject to - if it were deemed appropriate to take immediate action.
The appellant submits that upon a proper consideration of such factors it cannot be demonstrated that it was necessary to suspend the registration of the appellant (pursuant to either section 156(1)(a) or section 156(1)(e). The power of immediate action ought to be used sparingly (and only where the prerequisites for action are clearly met).
Here, a necessity to take action to protect persons from serious risk (within the meaning of section 156(1)(a) cannot be demonstrated. On the evidence before the Tribunal, there was (and is) no work for the National Law to do: the bail conditions manage that risk. Notably, at the time of the Medical Board's immediate action hearing the alleged conduct occurred over a closed period, many years ago.
Further, it can be assumed that bail was granted following determination as to whether the appellant posed a future risk if released on bail including consideration of the strength and/or weakness of the Crown case: see for example, DPP (NSW) v Mawad [2015] NSWCCA 227, at [19]). It cannot be argued that the bail conditions did not cover the field (providing for the protection of the alleged victims of the criminal conduct).
The Tribunal conducted an assessment of serious risk without consideration of the strength (or weakness) of the Crown case and assumed that the offences charged were appropriate to the conduct alleged. If it were not the role of the Tribunal (nor the Medical Board before it) to engage in such an evaluation, the unsuitability of invoking immediate action in the circumstances is illuminated.
Further, the Tribunal's conclusions as to serious risk and public interest cannot be reconciled with the common law presumption of innocence. That the Tribunal misapprehended the presumption is evident in the finding that it was, only a presumption of "fact" (judgment at [124]), see, contra, section 22, section 30 of the Human Rights Act 2004, and see also, Momcilovic v The Queen [2011] HCA 34, Schedule 7, Part 2, Clause 2, of the National Law.
Yet further, the Tribunal's conclusions as to serious risk and public interest did not effectively engage with the bail conditions and the proposed practice conditions which included the constant presence of a Practice Monitor during all patient interaction (whether in-person or virtual).
That is, notwithstanding the presumption of innocence, the appellant proposed practice conditions in apprehension of community concern and in the interests more generally, of the standing of the health profession (to which he is dedicated).
Further, there is nothing to suggest that the Tribunal considered the mandatory provisions ("must" - see, Schedule 7, Part 3, Clause 14 of the Act) of section 65 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) - before making the order for suspension
The determination that the appellant's registration be suspended amounts to error. It cannot be demonstrated that the appellant posed a risk to the public (or any identifiable person or persons) nor in the public interest. The power of immediate action is not concerned with professional discipline nor broader reputational concerns: Kirby v Dental Council of NSW [2020] NSWCA 91, at [15]; Pridgeon v Medical Council of NSW [2022] NSWCA 60, at [68].
The burden is on the appellant to demonstrate that exceptional circumstances exist whereby it is appropriate for the Tribunal on appeal to address an issue not raised before the Presidential Member at first instance. That entails showing, at least, that the point could not possibly have been met by evidence at first instance: Harplex Pty Ltd v Konstandellos [(2018) 54 VR 174; [2018] VSCA 67 at [67] per McLeish and Hargrave JJA and McDonald AJA.
The Tribunal did not make any error in relation to the characterisation of the presumption of innocence.
Third, at AS, [15]-[19], the appellant relies on s 22 of the Rights Act. Section 22 articulates the common law presumption of innocence in criminal proceedings. The present proceedings are administrative proceedings, not criminal proceedings. Section 22 of the Rights Act therefore has no application to the present proceedings.
Fourth, at AS, [30]-[31], the appellant contends that his suspension constitutes a contravention of his "right to work" in s 27B of the Rights Act. The appellant's argument in this regard should be rejected for a number of reasons:
In any event, the presumption of legality cannot override the express words of the statute: Momcilovic at [512]. Section 156 of the National Law clearly contemplates that it may have operation where a practitioner is subject to criminal charges. This is evident from the "Example" given in s 156. The principle of legality cannot operate such as to give rise to an interpretation that prohibits s 156 from having operation in the context of extant criminal charges.
The principle of legality therefore does not assist the appellant.
Ground 1(ii), RS, [24]-[31]: The Tribunal did not err in failing to consider and apply the Human Rights Act 2004 (ACT). The Rights Act does not govern the conduct of the Tribunal: see s 40(2)(a) of the Rights Act, definition of "court" in the Dictionary. Further, the National Law should not be construed in accordance with the principles in the Rights Act, because it has a uniform national operation and its own set interpretive rules in Schedule 7.
Section 22 of the Rights Act articulates the common law presumption of innocence in criminal proceedings. These are administrative proceedings not criminal proceedings and s 22 has no application. Section 27B refers to a "right to work" but this is subject to the "practice of a trade, occupation or profession may be regulated by law". This is what the National Law does in relation to health professionals regulated by the National Law.
Ground 1(iii), RS, [32]-[38]: The Tribunal did not err in failing to consider or apply the principle of legality. This principle had no work to do because the Tribunal was not obliged to consider the Rights Act when considering the scope and application of the National Law. In any event, none of those rights are engaged for the reasons set out above. In any event, the principle of legality is a principle of statutory construction and must yield to the clear words of the section.
Ground 1(iv), [39]-[42]: The Tribunal did not err in failing to consider and apply Sch 7, Part 2, Cl 2 of the National Law. This principle had no work to do because the Tribunal was not obliged to consider the Rights Act when considering the scope and application of the National Law. In any event, none of those rights are engaged for the reasons set out above. In any event, cl 2 only has operation where it might be said that the National Law operates beyond power. The Rights Act does not operate as a constraint on legislative power.
Ground 1(v), RS, [43]-[47]: The Tribunal did not err in failing to consider and apply s 65 of the National Law. Section 65 of the National Law is not relevant to the appeal. It may be that the appellant relies on s 65 of the ACAT Act. Even then, s 65 of the ACAT Act has no application because the National Law does not treat immediate action under s 156 as "occupational discipline" and does not contemplate that the appellant will be found to have committed any "contravention". Further, the appellant did not rely on s 65 of the ACAT Act before the first instance decision-maker. To the extent that the section has any application, evidence could have been led on these issues.
Ground 2, RS, [51]-[56]: The Tribunal did not err in applying s 156(1)(a) of the National Law in concluding that the appellant was a "serious risk to the public". The Tribunal addressed the test in s 156(1)(a)(i) at T [62]-[68] by reference to whether the appellant's practice "poses a serious risk to persons". The Tribunal reaffirmed this at T [73]. The Tribunal did not apply a test of whether there was a "serious risk to the public". While the Tribunal referred at T [3] to the "serious risk posed by the applicant to the public" this was evidently an introductory and summary paragraph.
Ground 3, RS, [57]-[65]: The Tribunal's conclusion that it was in the public interest that the appellant be suspended, for the purposes of s 156(1)(e), was not affected by error. Section 3A of the National Law as in force in the ACT was amended to expressly provide that the "public confidence" in the safety of health services is a paramount condition. Further, the "Example" in s 156 expressly contemplates that a practitioner subject to criminal charges (even those unrelated to his practice) may be subject to immediate action. In addition, the relevance of such matters, and the need for patients to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession, is consistent with the NSW Court of Appeal's decisions in Pridgeon v Medical Council of NSW [2022] NSWCA 60 at [27] and Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9].
Ground 4, RS, [66]-[69]: the Tribunal did not err in refusing to grant a stay to the appellant from the decision of the Board to take immediate action against him. The appellant simply repeats his submissions in relation to Ground 1.
(j) Further, it was submitted, relying upon comments by Niall JA in Leow at [113], that in addition to questions about criminal versus civil proceedings and the opaque operation of the presumption of innocence, the prevalence of the allegations being faced may also be relevant.[50] "Prevalence", here understood, it was submitted, was used as something of a synonym for and certainly part of the balancing or evaluative exercise required by section 156. This evaluative exercise, it was submitted, was clear at various stages in the decision below, including at [105], where it was concluded by the Tribunal that "once serious charges of that nature have been laid, the public would generally expect a practitioner to be suspended." Counsel emphasised that this was simply and importantly part of the ongoing evaluative exercise, which is to say that the Tribunal below was not relying upon some (unstated) legal principle, but rather it was undertaking an evaluative, discretionary exercise based upon section 156, which involved a consideration of the number, and the gravity, of the charges being faced by the Appellant.[51]
(k) The Respondent then moved to the argument propounded by the Appellant regarding the operation of the HR Act. Because this aspect of the appeal is addressed in detail later in these reasons regarding the operation of section 40(2)(b) of the HR Act, together with the terms of the Dictionary to that Act, it is unnecessary to rehearse those arguments here. The only matter to note further relates to the Appellant's contention regarding the principle of legality, albeit that that principle was not supported by authority in the course of the discussion or otherwise. The Respondent simply observed that this principle is an interpretative principle regarding the interpretation of legislation. It was submitted that, especially given the "example" provided by the legislature in section 156 of the National Law, there was nothing for the principle of legality to do.[52] There is brief further discussion below on this principle.
(l) The next part of the Respondent's submissions concerned the Appellant's contention that sections 64 and 65 of the ACAT Act applied. Extremely briefly (and therefore not exhaustively), the points advanced by the Respondent were (i) those sections deal with "occupational discipline", whereas here, the issue relates to a decision in relation to "immediate action" under section 156 of the National Law; (ii) these sections were not put before the Tribunal below. Had they been raised, evidence could have been led to address them.[53]
(m) Counsel then moved to a consideration of "risk" as articulated by the Appellant in Ground 2. Here we need only note the references given by Counsel to paragraphs in the reasons below (e.g. 62, 63 and 73) which predominantly refer to risk to "persons", as opposed to "the public", which was obviously an "infelicity" (so described by the Respondent) because all other references are to "persons", including the concession by the Appellant's Senior Counsel below (at [63]) of a "serious risk to female employees."[54]