1. On 5 August 2024, the Pharmacy Board and the respondent (who was, at that time, legally represented) lodged an "Agreed Statement of Facts, Finding and Determination" (the Agreed Statement). An "Agreed Bundle" of material was also filed on 5 August 2024 (the Agreed Bundle).
2. In the Agreed Statement, the parties described the incident which led to the charge against the respondent as follows:

[The respondent], who was 55 years old at the time, collected his son from after school care, where he was informed of an incident between his son and another child (both aged 10) whereby:

(a) His son had grazes on his back and informed his father that he had been dragged over gravel by another child identified by his son;

(b) The respondent had been engaged with the department prior to the incident with respect to alleged bullying by other children one of which was the identified child. Those matters included multiple instances which involved his son and a number of boys at the after school care commencing 4 June 2019.

[The respondent] approached the other child (who was kneeling on the ground as part of a group of children), yelled aggressively at him and said words to the effect of 'I'll fuck you up if you touch my son again' and pushed the child on the chest. The child fell onto his back on a pile of rocks.

While the child was on the ground, [the respondent] stood over the child, poked him in the chest and said words to the effect of, 'if you tell your dad about this and he confronts me about this I will fuck him up too.'

[The respondent] was then asked to leave the area by an educator at the after school care, which he did.

The child who [the respondent] assaulted and a number of the children nearby who witnessed the incident were visibly distressed.

1. On the basis of the respondent's concessions and the material in the Agreed Bundle, I find that each of the factual matters set out above, in the Agreed Statement, is established.
2. In the Agreed Statement, the respondent conceded that he had engaged in the conduct the subject of the disciplinary charge and that it was inconsistent with:

(a) Principles 3.6(c) and 8.1 of the Code of Conduct for Pharmacists of March 2014, as in force at the relevant time (the Code of Conduct); and

(b) Integrity Principle 1 in the Pharmaceutical Society of Australia's Code of Ethics for Pharmacists, as in force from 1 February 2017 to the present (the Code of Ethics).

1. The parties submitted in the Agreed Statement that the respondent's conduct the subject of the disciplinary charge constitutes professional misconduct within paragraph (c) of the definition in section 5 of the National Law because it is conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
2. "Professional misconduct, of a registered health practitioner" is defined in section 5 of the National Law to include (in paragraph (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. The parties jointly submitted in the Agreed Statement that it is appropriate that the Tribunal reprimand the respondent pursuant to section 196(2)(a) of the National Law.
2. On 15 August 2024, the respondent's solicitor informed the Tribunal that he no longer had instructions to act for the respondent in the proceedings. Since that time, the respondent has been self-represented.
3. The Pharmacy Board filed submissions in the matter on 26 August 2024. In those submissions, it sought that the matter be determined on the papers. It also submitted that the Tribunal should order the respondent to pay its costs, pursuant to section 195 of the National Law.
4. The respondent filed a bundle of documents on 17 September 2024 which he described as submissions, but which included references and other documents in the nature of evidence.
5. On 17 September 2024, the Registrar emailed the parties, at my request, to inform them that the Tribunal would not decide this matter on the papers in light of the following matters:

(a) The applicant had provided the Tribunal with evidence which appeared to go beyond facts the subject of the Agreed Statement, and which was not contemplated by the Tribunal's timetabling orders of 8 July 2024.

(b) The Tribunal wished to explore with the parties whether the applicant's conduct was properly characterised as professional misconduct.

(c) The applicant was seeking its costs and the Tribunal wished to hear from the parties on the issue of costs.

1. A short hearing was held on 23 September 2024, at which those issues were explored with the parties. At the hearing, the Tribunal made orders allowing the parties to provide further written submissions on the question of the relevance of A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1 (A Solicitor) to the proceedings. The parties both filed submissions in accordance with that direction, after the hearing.

Tribunal's approach to parties' agreed position

1. As indicated above, the parties jointly submitted in the Agreed Statement that the respondent's conduct was "inconsistent with [him] being a fit and proper person to hold registration in the profession" and was thereby professional misconduct. They also jointly submitted that the appropriate disciplinary order, under section 196(2) of the National Law, is a reprimand.
2. The respondent appeared to depart from this position, to some extent, at the hearing and in submissions filed after the hearing, as indicated below.
3. Section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides, broadly, that the tribunal may make consent orders which are within power if it is satisfied that it is appropriate to do so. Subsections 55(1) and (2) provide:

(1) _This section applies if, at any stage in dealing with an application - _

(i) about the terms of a tribunal decision in relation to the application; or

(ii) about how to deal with a part of the application or a matter arising out of the application; and

(b) the terms (the agreed terms) of the agreement are recorded by, or lodged with, the tribunal; and

_(c) the tribunal is satisfied that an order or decision in, or consistent with, the agreed terms would be - _

_(2) If the agreed terms are about a tribunal decision in relation to the application, the tribunal may, by order, make a decision in accordance with the agreed terms - _

(b) if a hearing has begun - without completely dealing with the application at the hearing.

1. The agreed position that the respondent engaged in professional misconduct is an agreement about the terms of a tribunal decision in relation to the application, within section 55(1)(a)(i) of the ACAT Act. Similarly, the parties' agreement that the appropriate disciplinary response is for the Tribunal to reprimand the respondent is such an agreement. The "terms" of the agreement were not lodged with the tribunal in the form of consent orders. Nevertheless, it is plain from the Agreed Statement that the parties agreed to terms of the tribunal's decision within section 55(1)(b) of the ACAT Act, those terms being that the respondent engaged in professional misconduct and is to be reprimanded.
2. Presidential Member Daniel (as President Daniel then was) made the following relevant comments about the proper approach to consent orders in occupational disciplinary proceedings in Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 at [9]-[11]:

Section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides a mechanism by which consent orders may be made without the holding of a hearing. The Tribunal is also empowered by section 56 of the ACAT Act to make consent orders after holding a hearing. Whether there should be a hearing prior to making a proposed consent order, and if so the scope of that hearing, will depend upon a number of factors. One such factor is the nature of the matter. In an occupational discipline matter, in which the Tribunal plays an important role in setting standards for the profession, and protecting the public, it is usually appropriate for consent orders to be made after a hearing, albeit of limited scope.

As identified in Medical Board of Australia v Martin [2013] QCAT 376 there is a public interest in parties to an occupational discipline matter being able to identify areas of agreement, and seeking to resolve the matter by way of consent orders. However the role of the Tribunal is not to simply issue orders as requested by the parties. In making an order for occupational discipline, even where by consent, the Tribunal must actively consider the facts that are agreed, the characterisation of those facts and the orders proposed as an appropriate response to the matter. [FN: See Pharmacy Board of Australia v Jattan [2015] QCAT 294; Medical Board of Australia v MBO [2015] ACAT 69]

Consequently, it is the practice of the Tribunal to require the parties to consent orders in an occupational discipline matter to attend a mini-hearing prior to the Tribunal making final orders. This gives the Tribunal the opportunity to review and comment upon the consent orders proposed, and satisfy itself that the orders are both within power, and appropriate.

1. I agree with and have adopted that approach in these proceedings. It is consistent with the following summary by the Victorian Civil and Administrative Tribunal (VCAT) of the relevant principles when dealing with an agreed position in occupational disciplinary proceedings:[3]

(a) The Tribunal's role is to decide the appropriate characterisation of the conduct and the penalties to be imposed. An agreement by the parties does not displace the Tribunal's duty;

(b) It is appropriate for parties to make agreed penalty submissions and there is a public policy benefit for such submissions to be accepted where appropriate;

(c) It is desirable for the Tribunal to adopt the agreed penalty submission where it is an appropriate outcome.

1. The agreement reached between the parties is an important matter for the Tribunal to take into account, and the Tribunal will not depart from it lightly.[4] However, it is for the Tribunal to satisfy itself that the proposed findings, determinations and orders are appropriate and to determine what findings, determinations and orders are to be made.[5]

1. The Tribunal must decide, relevantly, whether "the practitioner has behaved in a way that constitutes professional misconduct."[6] I am satisfied, for the purposes of section 55(1)(c)(i) of the ACAT Act, that an order consistent with the agreed terms deciding that the respondent has behaved in a way that constitutes professional misconduct would be within the tribunal's powers under section 196(1)(b)(iii) of the National Law.
2. The critical question is whether that decision is appropriate for the Tribunal to make, within section 55(1)(c)(ii) of the ACAT Act. The Tribunal must be satisfied that the respondent's conduct in committing the assault was, at the time it occurred,[7] "inconsistent with the practitioner being a fit and proper person to hold registration in the profession" within paragraph (c) of the definition of "professional misconduct" (the third limb of the definition), or that it otherwise fell within the definition of "professional misconduct."
3. The Pharmacy Board submitted, in its written submissions, that the respondent's:

assault of a 10 year old child meets the definition of professional misconduct under limb (c) of that definition as it is conduct that is inconsistent with that of a registered pharmacist.

1. That is, however, to misstate the test. The test is whether the conduct is inconsistent with the respondent being a fit and proper person to hold registration in the profession of pharmacy.
2. The respondent resiled from the agreed position that his conduct constituted professional misconduct at the hearing. He submitted that "the true definition of professional misconduct is conduct related to the direct practice of the profession."[8] He acknowledged that his behaviour was "unbecoming of a professional" and that it "brought the profession into disrepute" but denied that it was professional misconduct.[9] He described his conduct as "horrendous, degrading and horrible, but not professional misconduct."[10]

What is the correct approach to the characterisation of the conduct?

1. The Pharmacy Board submitted that the correct approach to determining whether a practitioner's conduct is "inconsistent with the practitioner being a fit and proper person to hold registration in the profession" is to consider the practitioner's conduct at the time it occurred, but not to consider the practitioner's character.[11] In oral submissions, Ms Crick, for the Pharmacy Board, said "we are looking at the conduct rather than the person at that time ... it is an examination of whether the conduct is inconsistent at that time as opposed to the suitability to practice."[12] She explained the Pharmacy Board's position further, as follows: "[w]e are just looking at the conduct for the purposes of characterising the conduct at that time. Then the suitability is a wider inquiry."[13] The conduct, in Ms Crick's submission, "is somewhat divorced from the other circumstances" and "[t]his isn't an inquiry about fitness and propriety and suitability."[14]
2. Ms Crick also told the Tribunal that "in this case, the board was satisfied and you may have noted in the materials that the board declined to take any immediate action in this case because it was satisfied that there was still an ongoing suitability to practice."[15] Ms Crick explained the Pharmacy Board's position further:

as I submitted previously, there might be other factors that point in favour of suitability to hold registration that are present at the time that might overcome any overarching fitness and propriety concerns that may have prompted the board to take immediate action, or other action in relation to the registration that weren't present at the time. But, in our submission, that is not inconsistent with making a finding in respect of the conduct. That conduct itself was inconsistent with the fitness and propriety requirement.[16]

1. For the reasons which follow, I do not accept the Pharmacy Board's position that the practitioner's conduct is to be considered in isolation from the surrounding circumstances and from the practitioner's character when determining whether the conduct was inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
2. The starting point for construing paragraph (c) of the definition of "professional misconduct" in the National Law is the text of the provision. The text refers to "conduct... that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession." The text does not, of itself, resolve the question of whether it is only the objective conduct which is to be considered when determining fitness and propriety, or whether the word "conduct" imports both the actions of the practitioner and the full circumstances in which they occurred. However, contrary to Ms Crick's submission, the definition does invite an inquiry into the practitioner's fitness and propriety to hold registration. It requires an assessment of whether the conduct is inconsistent with "the practitioner" being a fit and proper person. This supports a focus not only upon the conduct, but also upon the fitness and propriety of the particular practitioner in question.
3. The common law approach to defining professional misconduct forms part of the context in which the National Law was enacted. An understanding of the circumstances in which personal conduct may constitute professional misconduct at common law assists with the construction of paragraph (c) of the definition of "professional misconduct" in the National Law.[17] That is because the National Law definition employs some concepts from the common law (such as fitness and propriety) and also modifies the common law position to some extent.
4. It is also helpful to review decisions of other tribunals construing the third limb of the definition of "professional misconduct" in the National Law, as it applies in other jurisdictions.
5. The question of whether an offence committed in a personal capacity could constitute professional misconduct was considered by the High Court in Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 (Ziems). A barrister, who had been attacked and seriously injured in a bar one evening, drove himself to hospital, under the influence of alcohol. He collided with a motorcycle, killing the motorcyclist. The barrister was convicted of manslaughter. The High Court found by a majority of 3:2 that he was not guilty of professional misconduct.
6. Fullagar J, who was in the majority, commented:[18]

Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister: see, e.g. In re Davis. But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former. (footnote omitted)

1. His Honour also observed that, when determining whether a person is a fit and proper person to practise at the bar, "we must look at every fact which can throw any light on that question."[19]
2. This passage was cited with approval by a unanimous High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) nearly fifty years later in A Solicitor.[20] In that case, a solicitor was convicted of four counts of aggravated indecent assault on persons under the age of sixteen years (the solicitor's de facto step-daughters). He failed to disclose some further convictions of indecent assault to the Law Society, before those convictions were overturned on appeal. The NSW Court of Appeal, exercising its inherent jurisdiction, made declarations that the solicitor was guilty of professional misconduct, both in respect of the first convictions and in respect of the non-disclosure, and ordered that his name be removed from the Roll of Legal Practitioners.
3. On appeal, the High Court found that the conduct the subject of the first convictions did not constitute professional misconduct, although the failure to disclose the further convictions did. It upheld the appeal and ordered instead that the appellant be suspended from practice for five years.
4. When considering whether the solicitor had engaged in professional misconduct when he committed the offences of aggravated indecent assault, the Court observed that "[t]he case of Ziems provides an example of the need to examine 'the whole position.'"[21] The Court described Ziems as "a case where the particularity with which the facts were approached was important to a conclusion as to the barrister's fitness."[22] It also considered that the facts of the conduct, the subject of the declaration in the case before it, "exemplify the importance that may attach to a consideration of the detailed subjective and objective circumstances of offending behaviour."[23]
5. The Court made the following observations as to when conduct in a personal capacity may constitute professional misconduct:[24]

The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. (footnotes omitted)

1. Turning to the question of whether the solicitor's conduct in indecently assaulting his step-daughters constituted professional misconduct, the High Court examined the facts in detail. It then referred to the Court of Appeal's finding that the conduct constituted a most serious breach of trust on the solicitor's part and manifested qualities of character which were incompatible with the conduct of legal practice.[25] Acknowledging that the conduct constituted a breach of trust, the High Court observed that:

the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous.[26]

1. The legislature departed from the common law requirement that conduct be connected to professional practice to constitute professional misconduct when defining "professional misconduct" in the National Law. The third limb of the definition expressly applies to conduct "whether occurring in connection with the practice of the health practitioner's profession or not." However, the legislature adopted the concept of fitness and propriety from the common law. The conduct must be "inconsistent with the practitioner being a fit and proper person to hold registration in the profession" to constitute professional misconduct within the third limb.
2. Tribunals have adopted conflicting constructions of the third limb of the definition of "professional misconduct" in the National Law_._ In 2017, the VCAT framed the issue as follows:[27]

Is the conduct to be considered objectively, without regard to the practitioner's personal circumstances? Is the question to be answered by looking at the conduct at the time it occurred or is it a present time decision taking into account matters which have become evident since that time, including insight and remorse? Is it the same or different to the considerations taken into account when deciding whether the practitioner is or is not fit and proper to practice for the purpose of determinations? To what extent is there any overlap between the two inquiries?

1. The Queensland Civil and Administrative Tribunal (QCAT) took the approach, in 2015, that the definition of "professional misconduct" in the National Law in paragraph (c) requires a consideration of the detailed subjective and objective circumstances of the offending behaviour, consistently with the High Court's statement of the common law position in A Solicitor. That tribunal observed:[28]

Not cancelling a practitioner's registration would seem inconsistent with having found his or her conduct to be inconsistent with him or her being a fit and proper person to hold registration. This may be contrasted with cases in which there is a finding of professional misconduct on some basis, and the question then arises whether the practitioner is fit and proper to be or remain registered.

A Solicitor v Council of the Law Society NSW, although a case of the latter kind, emphasised in assessing fitness for practice "the importance that may attach to a consideration of the detailed subjective and objective circumstances of the offending behaviour". In my view, applying that observation to this case and the third limb of the definition of professional misconduct in the National Law, requires consideration of whether Mr Wong's offending conduct, when the detailed subjective and objective circumstances of it are taken into account, is inconsistent with him being a fit and proper person to hold registration. (footnote omitted)

1. VCAT considered, in a case decided in 2017, that "while the conduct itself is the focus, a present-time assessment is carried out in order to determine whether the conduct falls within paragraph (c)."[29] It agreed with QCAT that "it is appropriate to take into account objective and subjective circumstances, including any understanding of those circumstances which has become available."[30]
2. In 2019, VCAT described its task, when determining whether the third limb of the definition of "professional misconduct" applies, as being "to consider the conduct in context and with regard to all the surrounding circumstances so as to give the 'widest scope for judgment'."[31]
3. A different view has been taken in subsequent decisions of VCAT. In Medical Board of Australia v Arulanandarajah [2021] VCAT 85 (Arulanandarajah), a case on which the Pharmacy Board relies, VCAT commented that all that is required, when determining whether the definition is engaged, "is a determination of whether or not the conduct is inconsistent with the practitioner being a fit and proper person to hold registration" (original emphasis).[32] In its view:

the words used allow for the possibility that while the conduct engaged in by the practitioner was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that point.[33]

1. This tribunal referred to Arulanandarajah with approval in one decision, stating "the approach we take in that it is the characterisation of conduct itself the Tribunal should evaluate."[34] However, in that case, the Tribunal did not expressly consider the extent to which the conduct is to be considered in context.
2. In Nursing and Midwifery Board of Australia v Clarke-Wakeling (Review and Regulation) [2022] VCAT 478, VCAT considered whether a nurse's conduct, engaged in when the nurse was mentally unwell, constituted professional misconduct within the third limb of the definition. It took the view that the conduct was to be considered in isolation, then a separate determination was to be made as to whether the practitioner was currently a fit and proper person. In VCAT's assessment, "it matters not for the purpose of characterisation of the conduct, that there were other factors which would mitigate or put that conduct in context."[35] VCAT accepted the regulator's submission that "our focus must be on the conduct - viewed objectively is it conduct which is inconsistent with being a fit and proper person to hold registration?"[36]
3. The NSW Court of Appeal's decision in Council of New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339 (EFA) is also instructive. The NSW Court of Appeal considered the correct construction of a definition of "professional misconduct" in section 297(1)(b) of the Legal Profession Uniform Law (NSW) which included "conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice." It also considered the meaning of professional misconduct at common law.
4. In that case, a regulator had appealed from a tribunal decision that a legal practitioner's conduct at a dinner did not amount to professional misconduct. A ground of appeal was that the tribunal wrongly rejected the regulator's contention that the practitioner's conduct constituted professional misconduct at common law and had failed to apply the correct test.
5. The Court found that the "critical criterion" of professional misconduct at common law is, as stated in A Solicitor, that of "fit and proper person."[37] It determined that the test in Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 (Allinson), of "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers, does not constitute a stand-alone category of professional misconduct, separate from fitness and propriety.[38] The Court observed:

There is also this to be considered: the Allinson formulation is directed solely to the conduct under consideration. As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The "fit and proper person" test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances.[39]

1. Notwithstanding that the definition of "professional misconduct" in section 297(1)(b) of the Legal Profession Uniform Law (NSW) focuses, in terms, on characterising a practitioner's "conduct" ("conduct ... that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice"), the Court in EFA concluded[40] that:

"Professional misconduct" determined against the "critical criterion" of "a fit and proper person" is indistinguishable from "professional misconduct" as defined in s 297(1)(b) of the Uniform Law.

1. The third limb of the definition of "professional misconduct" in the National Law is similar to the definition in section 297(1)(b) of the Legal Profession Uniform Law (NSW). To reiterate, the National Law definition is:

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. [emphasis added]

1. The Legal Profession Uniform Law (NSW) definition is:

conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. [emphasis added]

1. The emboldened words emphasize the key differences between the provisions (conduct inconsistent with being fit and proper vs conduct justifying a finding that the practitioner is not fit and proper).
2. In EFA, the Court of Appeal considered that, to establish professional misconduct under the legislation in question in that case, it was necessary to show that the conduct would justify a finding that the practitioner was not fit and proper, but that it was not necessary to show that the practitioner was, in fact, not a fit and proper person.[41] That is, the words "would, if established, justify a finding..." indicated that the test was the conduct in question had to be capable of demonstrating unfitness, not that the conduct in fact demonstrated unfitness. The Court observed that "there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness."[42]
3. I consider that the words in the National Law, "conduct ... that is inconsistent with the practitioner being a fit and proper person", refer to conduct which in fact demonstrates unfitness. I have reached this conclusion, notwithstanding the Court's reasoning in EFA, because the words "is inconsistent" in the National Law definition are stronger and more definitive than the subjunctive, "would, if established, justify" in the Legal Profession Uniform Law (NSW) definition.
4. The NSW Court of Appeal in EFA rejected the view that the definition in the Legal Profession Uniform Law (NSW), properly construed, focuses only on the objective circumstances of the conduct. With reference to Ziems, the Court found that the "question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct."[43] It is true that, in Ziems, the court was considering present unfitness. However, the Court, in EFA, did not see this is as a relevant distinction between the statutory test and the common law test.
5. I do not consider there to be a significant difference between the third limb of the definition of "professional misconduct" in the National Law and the definition in the legislation considered in EFA, other than the distinction to which I have referred above. The conclusion of the NSW Court of Appeal reached in EFA, that the personal qualities of the lawyer and other circumstances are to be considered for the purposes of the NSW definition of "professional misconduct," is applicable to the construction of the National Law definition. The question of whether the conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession directs attention to the practitioner's character (his or her fitness and propriety), as well as to the conduct the subject of the disciplinary charge.
6. Contrary to the Pharmacy Board's position, the personal qualities of the practitioner, at the time of the conduct, are relevant to the question of whether the conduct is inconsistent with the practitioner in question being a fit and proper person. That is because question of fitness to engage in a profession focuses, in part, upon character.[44] Conduct which would be inconsistent with one practitioner being fit and proper, having regard to that practitioner's past conduct, character, and the particular circumstances of the conduct, would not necessarily be inconsistent with another practitioner being a fit and proper person to hold registration in the profession.
7. That construction is also more harmonious with other provisions of the National Law than alternative constructions which require the objective circumstances of a practitioner's conduct to be considered in isolation.
8. Under the National Law, a National Board (such as the Pharmacy Board) must consider certain matters when making a decision that relates to an individual's criminal history.[45] One of these matters is whether or not there is a high degree of direct connection between the individual's criminal record and the inherent requirements of the profession.[46] A National Board must also develop registration standards, including about matters about the criminal history of applicants for registration and registered health practitioners, which include the matters to be considered in deciding whether an individual's criminal history is relevant to the practice of the profession.[47] A National Board may decide an individual is not a suitable person to hold general registration in a health profession if, having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession.[48]
9. These provisions demonstrate that the legislature has not treated every offence of which a person has been found guilty as rendering the person unfit to hold registration in a health profession. Rather, a National Board is to consider whether there is a "high degree of direct connection" between the person's criminal record and the "inherent requirements" of the profession. Further, the criminal record is to be considered "to the extent that is relevant to the individual's practice of the profession." The exercise of judgment is required in each case.
10. For all of these reasons, I accept the view expressed by QCAT and by VCAT in some decisions that the third limb of the definition of "professional misconduct" in the National Law requires a consideration of the detailed subjective and objective circumstances of the offending behaviour.[49] The tribunal decisions which favoured an objective and non-contextual assessment of the conduct, for the purposes of the definition,[50] are not consistent with the NSW Court of Appeal's reasoning in EFA. The objective approach is also at odds with the approach to fitness and propriety taken by the High Court in Ziems and in A Solicitor. It is unlikely that the legislature intended such a radical departure from the High Court's approach to determining fitness and propriety when it employed the words "fit and proper" in the third limb of the definition of "professional misconduct."
11. The Pharmacy Board submitted, in written submissions filed after the hearing, that A Solicitor has no direct relevance to the Tribunal's determination in this matter. One of the reasons it put forward in support of that position is that the proceedings in A Solicitor were brought in the court's inherent jurisdiction, whereas these proceedings are brought under the National Law. It relied upon the High Court's comment in A Solicitor,[51] being:

when the Supreme Court is exercising its inherent jurisdiction, it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice. In a statutory context where the power of removal depends upon a finding of professional misconduct, it may be appropriate to give the expression a wider meaning, similar to that in s 127 [of the Legal Profession Act 1987 (NSW)] [Fn: cf Roylance v General Medical Council [No 2] [1999] UKPC 16; [2000] 1 AC 311].

1. The Pharmacy Board submitted that the present matter:

is an example of a statutory context, alluded to by the High Court in A Solicitor, where it may be appropriate to give the expression 'professional misconduct' a wider meaning than the one found in A Solicitor, such that the meaning is consistent with paragraph (c) of the definition of 'professional misconduct' at section 5 of the National Law.

1. It is uncontroversial that the statutory concept of professional misconduct in paragraph (c) of the National Law definition is broader than the common law concept. Contrary to the respondent's submission at the hearing, it is not necessary to show that the conduct be "related to the direct practice of the profession" for it to fall within the third limb of the definition of professional misconduct under the National Law. The words in the definition, "whether occurring in connection with the practice of the health practitioner's profession or not," make that plain. Nevertheless, the conduct in question must be such as to be inconsistent with the practitioner being a fit and proper person to hold registration in the profession. That is, there remains a link between the conduct and the profession in the statutory definition, albeit that the conduct does not have to occur in connection with professional practice.
2. It is possible that the third limb of the definition invites a consideration of whether the practitioner's conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession at the time of a hearing, as VCAT suggested in Medical Board of Australia v Cukier (Review and Regulation) [2017] VCAT 109 at [44]. The word "is" in the definition, in the present tense, would support that construction. However, I have assumed for the purposes of this decision that the Pharmacy Council is correct to submit that the conduct is to be assessed at the time at which the practitioner engaged in it.

Did the assault constitute professional misconduct?

1. The test is whether the particular conduct was, in all of the circumstances, inconsistent with the respondent being fit and proper to hold registration as a pharmacist at the time of that conduct. Determining that issue involves an understanding of the events leading up to the offence which affected the respondent.
2. The Pharmacy Board submitted that "acts of violence and aggression occurring outside a practitioner's professional practise [sic] have routinely been found to constitute professional misconduct." It relied upon a number of tribunal decisions in support of the submission. In one of these cases, Nursing and Midwifery Board of Australia v Augustin (Occupational Discipline) [2022] ACAT 54 (Augustin), a nurse struck his wife with a closed fist and was found guilty of common assault;[52] in another, a medical practitioner punched a patient in the jaw with a closed fist in the waiting room of his medical clinic;[53] in a third, a practitioner pleaded guilty to a charge of common assault for beating his 16-year-old daughter with a rolling pin for 20 minutes;[54] and in a fourth, a medical practitioner struck his domestic partner with a belt approximately 15 times, causing injuries; and on another occasion, hit his partner twice in the face, causing bruising under her eye and a split lip.[55]
3. As the Pharmacy Board acknowledges in its written submissions, the latter three cases are distinguishable. It relies upon Augustin as being comparable. That is a case in which (as here) the practitioner accepted that his conduct constituted professional misconduct. However, the determination of whether the conduct of a practitioner constitutes professional misconduct depends upon a close examination of the facts. The case of Augustin is therefore of limited assistance.
4. The Pharmacy Board submitted that there is a connection between assault and a health profession, in the context of the National Law. It referred to section 3A(1) of the National Law which provides that the main guiding principle of the national registration and accreditation scheme is the paramountcy of the protection of the public and public confidence in the safety of services provided by registered health practitioners and students.
5. Almost any assault is detrimental to a victim's health and safety, whereas the guiding principles of the national registration and accreditation scheme seek to protect public health and safety. There is thus a nexus between violent conduct and suitability to practise a health profession. However, as discussed above, the National Law does not contemplate that the commission of an assault is conduct which is necessarily inconsistent with the perpetrator's fitness and propriety to practice a health profession. The legislature has adopted a more nuanced approach.
6. The whole of the circumstances in which the respondent committed the assault include the following.
7. In a letter the respondent wrote to AHPRA on 7 June 2022, the respondent explained the circumstances concerning the bullying of his son as follows:

For well over 18 months now my son [redacted] has been having trouble with one or two boys at school, in particular [redacted] (the biggest boy in the year and [redacted]'s class) whilst [redacted] is the smallest.

[Redacted] has consistently punched, hurt, and made trouble for [redacted], telling him what to do, there [sic] to play.

This constant bullying has made [redacted] upset and withdrawn. He has started to retaliate, so when [redacted] throws a pen at [redacted] in class, [redacted] gets up to tell him to stop. [Redacted] lies and said he did nothing and [redacted] then gets into trouble.

[Name of mother] has attended the school a number of times when [redacted] has been hit. The teachers are very pleasant yet do not assign blame let along punish a child.

1. I accept that, at the time of the offending, the respondent was affected by the bullying of his son over a long period of time and was concerned about the effect of the bullying on his son.
2. On 31 July 2022, the respondent made a written submission to AHPRA. In that submission, he described the history of bullying in terms broadly consistent with his letter of 7 June 2022, and then described the incident and the events leading up to it, as he understood them, as follows:

On the 15th of March, [redacted] (who had been formally told by the school not to go near [redacted]) went up to [redacted]. [Redacted] told [redacted] to go away and tried to find a teacher. [Redacted] then forcibly grabbed [redacted], dragged him for about 10 minutes to deliberately seek out some hard gravel, then dragged [redacted] over the hard gravel. All the time, [redacted] was begging him to stop. Once [redacted] had finished, he got hold of [redacted]'s school bag, filled the bag with water, and threw it on the floor.

When I collected [redacted] from after school care that day, he told me what [redacted] had done. I initially stayed calm and asked [redacted] to report it to the after school care staff. I spoke to a very nice staff member who said that she would document the incident. As we walked away from the school towards my vehicle, I noticed [redacted] wincing. I asked him what was wrong, and he explained that [redacted] hurt his back. After I saw the injuries to his back, I flipped and asked [redacted] where [redacted] was. [Redacted] told me to 'leave it.' I said to [redacted] 'we have had over a year of this and I have had enough.' This is when I approached [redacted].

I did not mean to push [redacted], but I did end up pushing him a bit and he fell to the ground. I aggressively said the words 'if you touch [redacted] again I will fuck you up and should anyone try to help you I will fuck them up too.'

1. The respondent's accounts of the prolonged bullying and the circumstances in which he assaulted the victim are consistent with other evidence in the agreed bundle and were not challenged. I accept that the respondent's accounts of the bullying and of the circumstances of the assault, provided to AHPRA, accurately reflect his perception of events. I find that the respondent had taken steps to address the bullying of his son by the classmate through discussions with the school, but those discussions had been largely ineffective. The respondent would likely have felt protective of his son, frustrated with the school's inability to deal effectively with the bullying and angry about the reported behaviour of the classmate. The documents in the Agreed Bundle indicate that he was overcome with anger and other emotions when he saw the significant grazing to his son's back.
2. The respondent described the incident to his clinical psychologist, Professor Douglas P Boer. Professor Boer gave an account of the respondent's description of the incident in his report of 18 September 2022 as follows:[56]

[The respondent's] son reported that he had been 'dragged... over some hard gravel,' despite his son telling the eventual victim to stop it. After reporting the incident [to the staff person in charge], [the respondent] and his son walked away, and [the respondent] noticed that his son was 'wincing' and then noticed the marks on his back. At that point his anger rose, he approached the eventual victim, and the offence occurred ... [The respondent] noted that when he saw the marks on his son's back, 'it was like a tsunami of emotions overtook (him)' and he reacted, swearing at the victim, threatening the victim to 'fuck him up' if he touched his son again.

1. A report by Professor Boer, dated 27 July 2022, states that the respondent's "own history of physical child abuse", whereby he was a victim of family violence in the home, likely contributed to his reaction to the bullying of his son. A further report made by Professor Boer, dated 18 September 2022, stated that the respondent's "offending behaviour may have been partially triggered by his own history of abuse (his reaction in the offence appears indicative of a triggered response as is sometimes seen in individuals with Posttraumatic Stress Disorder (PTSD)".[57] The physical abuse is identified as being at the hands of family members.[58] During the hearing, the respondent commented: "I've been seeing a psychologist for years. If you guys knew the abuse I had as a child, it's ridiculous."[59]
2. Professor Boer reported that, having used a psychological assessment tool, the "results indicated that [the respondent] presented with features of clinical syndromes, most notably, Major Depressive Disorder, Posttraumatic Stress Disorder (PTSD), and Adjustment Disorder with mixed anxiety and depressed mood."[60] Professor Boer considered that [the respondent] had some of the symptoms of PTSD due to physical abuse as a child and Adjustment Disorder, but declined to confirm the diagnoses as that "was considered outside of the remit of this assessment and the current treatment focus."[61]
3. I accept that the violence the respondent experienced as a child contributed to his conduct when confronted with the injuries his own child had suffered. I also accept that the respondent's reaction to seeing the marks on his son's back and to hearing about the physical violence towards his son on the day of the offence, was likely affected by his own psychological condition.

1. The Pharmacy Board submitted in its further submissions, filed on 8 October 2024, that the respondent's conduct was "clearly inconsistent" with him being a fit and proper person at the time of the conduct because it was inconsistent with principles 1.1, 3.6(c) and 8.1 of the Code of Conduct, and Integrity Principle 1 of the Code of Ethics.

1. The Code of Conduct was referred to in the particulars to the disciplinary charge as follows:

(f) [The respondent's] conduct is inconsistent with the Board's Code of conduct for pharmacists (as in force 17 March 2014 to 28 June 2022, now retired) (Code of Conduct), specifically:

(i) Principle 3.6(c) that provides that '[g]ood practice involves ... ensuring that, when communicating with a child or young person, practitioners ... treat the child or young person with respect and listen to their views ...'

(ii) Principle 8.1 that provides practitioners 'must display a standard of behaviour that warrants the trust and respect of the community.'

1. The Code of Conduct is a code approved by the Pharmacy Board. The cover page indicates that it is accessible on the Pharmacy Board's website. By section 41 of the National Law, that code is admissible in these proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession of pharmacy.
2. A breach of "principle 1.1" of the Code of Conduct is not a particular relied upon in the Pharmacy Board's application to the tribunal, notwithstanding that the Pharmacy Board raised it in its submissions filed after the hearing. As clause 1.1 of the Code of Conduct was not referred to in the application for disciplinary orders, it would be procedurally unfair for the Tribunal to rely upon it to make any adverse findings about the respondent. In any event, for the reasons which follow, the Pharmacy Board appears to have misconstrued its purpose and effect.
3. The Pharmacy Board has described clause 1.1 of the Code of Conduct as a "principle", but it is not framed as such. Clause 1.1 is entitled "Use of the Code." It contains a discussion, over a number of paragraphs, explaining how the code is intended to be used. The statement which the Pharmacy Board takes from the discussion under clause 1.1, that practitioners must always act in accordance with the law, is made in the context of stating that the law prevails over the Code of Conduct in the event of an inconsistency. It is not purporting to set out a stand-alone principle (as the heading to clause 1.1 indicates). It is rather a statement made in the context of information about the proper use of the code.
4. The Pharmacy Board also relies upon an alleged breach of "principle 3.6" of the Code of Conduct.
5. Clause 3.6 of the Code of Conduct provides for what "good practice" involves. Reading the clause within the context of the Code of Conduct as a whole, the term "practice" refers to the practice of pharmacy and not to a practitioner's conduct in his or her personal life. Clause 3.6 is located in a chapter of the Code of Conduct headed "3. Working with patients or clients". In clause 3.1, entitled "Introduction," it is stated "[r]elationships based on respect, trust and good communication will enable practitioners to work in partnership with patients or clients". The heading to Chapter 3 and clause 3.1 make plain that Chapter 3 is concerned with working with patients or clients. The chapter is not concerned with conduct engaged in by a practitioner in his or her private life.
6. This conclusion is reinforced by the first chapter of the Code of Conduct, "1 Introduction," which indicates in clause 1.1 ("Use of the code") that the "code seeks to assist and support practitioners to deliver appropriate, effective services within an ethical framework." The delivery of services is something which occurs in a professional context, not a personal one.
7. The Pharmacy Board also relies upon an alleged breach of "principle 8.1" of the Code of Conduct.
8. The Pharmacy Board omitted the opening words of clause 8.1 of the Code of Conduct in the particulars it provided of the disciplinary charge in its application for disciplinary orders. Those opening words are, "In professional life." The clause reads, "In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community" (emphasis added). In other words, clause 8.1 expressly applies to practitioners' behaviour in a professional capacity.
9. Clauses 3.1 and 8.1 of the Code of Conduct have no application to a practitioner's conduct in his or her personal life. Ms Crick submitted for the Pharmacy Board at the hearing that the Board would read "professional life" "more broadly to encompass also personal life."[62] There is no warrant for that construction of the words in the language of the Code of Conduct and I reject it.
10. Contrary to the parties' agreed position that the respondent's conduct was inconsistent with clauses 3.1 and 8.1 of the Code of Conduct, I find that those clauses did not apply to his conduct.

1. The Code of Ethics was referred to in the particulars to the disciplinary charge as follows:

(g) [The respondent's] conduct is inconsistent with the Pharmaceutical Society of Australia's Code of Ethics for Pharmacists (the current version in force from 1 February 2017 to present) (Code of Ethics), specifically:

(i) Integrity Principle 1 which provides that a pharmacist:

1. 'acts with honesty and integrity to maintain public trust and confidence in the profession'; and

2. 'demonstrates accepted standards of professional and culturally appropriate personal behaviour regardless of the setting...'

1. The Code of Ethics is a document created by the Pharmaceutical Society of Australia. That Society describes itself, in the document, as being "recognised by the Australian Government as the peak national professional pharmacy organisation."[63] There is also a statement in the Code of Ethics that the Pharmacy Board "endorses" the Code of Ethics.[64]
2. The respondent submitted at the hearing that the Code of Ethics was "not a legal document."[65] He described its author, the Pharmaceutical Society of Australia or "PSA", as "guild stooges".[66] He commented, "I'm not sure whether PSA can even talk about ethics."[67] He added that he was not a member of the PSA.[68]
3. At the hearing, Ms Crick submitted that the Code of Ethics was endorsed by the Pharmacy Board under section 39 of the National Law.[69] There was, however, no evidence of this other than the statement contained in the Code of Ethics. Even assuming that the Pharmacy Board did "endorse" the Code of Ethics, it is not plain whether the Board had "approved" the Code of Ethics for the purposes of section 39 of the National Law. If so, the code was required to be published on the Pharmacy Board's website in order to take effect,[70] and there was no evidence that it had been so published.
4. In these circumstances, the Pharmacy Board has not established that the Code of Ethics (unlike the Code of Conduct) constitutes evidence of what constitutes appropriate professional conduct or practice for the health profession of pharmacy, within section 41 of the National Law, or that it is relevant.
5. If I am wrong, and the Code of Ethics may be relied upon as evidence of professional standards applicable to pharmacists, it is of limited utility when determining whether the respondent engaged in professional misconduct.
6. The Code of Ethics states that it has been designed for the use of individual pharmacists to assess their own practice. On the cover page, the following disclaimer appears:

This Code is intended to provide guidance on the expected standards of ethical behaviour of pharmacists towards individuals, the community and society. It has been designed for use by individual pharmacists to assess their own practice. It is the sole responsibility of the individual pharmacist to determine, all circumstances, how to apply the principles of this Code.

1. The Pharmacy Board is seeking to use the Code of Ethics for a different purpose from self-assessment, namely for the purposes of disciplinary proceedings. Given the disclaimer, the Code of Ethics needs to be used with some caution in this context.
2. The Pharmacy Board alleges that the respondent failed to act with honesty and integrity to maintain public trust and confidence in the profession, within Integrity Principle 1 of the Code of Ethics.
3. It may be doubted whether committing an assault is properly characterised as a failure to act with honesty and integrity. A failure to act with honesty and integrity more readily encapsulates fraudulent behaviour, or behaviour such as acting with an undeclared conflict of interest. It is not apt, in its ordinary meaning, to encapsulate violence.
4. Ms Crick submitted for the Pharmacy Board, at the hearing, that the respondent's conduct of assaulting a child was "inconsistent with the maintenance of integrity ... and public trust in the profession." The question of whether the respondent's conduct affects public trust in the profession is not probative of whether, by assaulting a child, the respondent failed to act with integrity. Ms Crick also submitted that the circumstance that the conduct occurred publicly, at a school, reinforced the degree of inconsistency with integrity.[71] I do not consider that the public nature of the conduct, or the circumstance that it occurred at a school, is relevant to whether it constituted a failure to act with integrity.
5. I am not satisfied that the Pharmacy Board has established that the respondent's conduct in committing the assault constituted a failure to act with honesty and integrity.
6. Under Integrity Principle 1 in the Code of Ethics, there is a long list of descriptions of what a pharmacist does, which might be thought to be illustrations of good practice which are consistent with Integrity Principle 1. These are not self-evidently stand-alone principles in their own right. They appear to be designed to provide guidance to pharmacists as to how to comply with Integrity Principle 1. The first of the descriptions of good practice, upon which the Pharmacy Board relies, is that a pharmacist "demonstrates accepted standards of professional and culturally appropriate personal behaviour regardless of the setting, including in person and by electronic means".
7. The commission of an assault, particularly where the victim is a child, is a breach of accepted standards of culturally appropriate personal behaviour. However, the relevance of the behavioural description following Integrity Principle 1 to the overarching principle that a pharmacist acts with honesty and integrity to maintain public trust and confidence in the profession is unclear. If the assault is properly regarded as demonstrating a lack of honesty and integrity, then it would breach Integrity Principle 1. However, as I do not consider that the assault demonstrates a lack of honesty and integrity, I am not satisfied that it does, even though it is a breach of accepted standards of culturally appropriate personal behaviour.
8. I have taken account that the parties' agreed position, in the Agreed Statement, is that the respondent had breached Integrity Principle 1 in the Code of Ethics. That is something which would normally carry significant weight. However, there are a number of reasons why I have given the agreed position less weight than usual in this case. First, I have found that other concessions made by the respondent, and allegations made by the Pharmacy Board, are affected by legal error. Secondly, the respondent appeared to depart from the agreed position at the hearing when he stated that he had not engaged in professional misconduct and when he questioned the legal force of the Code of Ethics. Thirdly, whilst the respondent was legally represented when the parties made the Agreed Statement, he was not legally represented at the hearing, or when he made written submissions, meaning that his legal representative was not available to provide submissions supporting the position reached by the parties.
9. If, contrary to my view, the Code of Ethics does constitute evidence of what constitutes appropriate professional conduct for pharmacists, and the respondent's conduct has breached Integrity Principle 1, that does not necessarily render the conduct inconsistent with him being a fit and proper person to hold registration. It is not every breach of a code which has that effect. The conduct must be considered in its context, with any breach of the Code of Ethics forming only one part of that context.

1. The question of whether the assault was inconsistent with the respondent being a fit and proper person to hold registration in the profession is finely balanced.
2. The respondent's assault is reprehensible. The circumstance that the assault was committed against a child is an aggravating factor. The conduct was serious and resulted in a court finding that the respondent was guilty of a criminal offence. Although the assault did not result in any serious physical harm to the classmate, it had the potential to inflict psychological damage on him. It also distressed other children who witnessed it and likely made them feel unsafe. The respondent was much larger, older and more powerful than the classmate, who was vulnerable when threatened by the respondent. To the extent that the respondent intended to send a message to the classmate that bullying was unacceptable, he unwittingly reinforced the message that it is acceptable to use physical force or violence as a means of control. In other words, the respondent's conduct in committing the assault was in some respects similar to the conduct of the classmate which he condemned.
3. As indicated earlier, violent conduct on the part of a health practitioner is contrary to the guiding principle of the national registration and accreditation scheme that protection of the public is paramount (albeit that the national registration and accreditation scheme applies primarily to protection of the public in the practice of a profession).[72] A practitioner's conduct in his or her private life may demonstrate qualities of a kind that require a conclusion that the practitioner is not a fit and proper person to practise.[73] Violent conduct may demonstrate that a health practitioner is not fit to practise, taking into account community expectations of health practitioners and the purpose of the scheme of protecting public health.
4. Having regard to "the whole position"[74] in this case, however, I am not satisfied that the Pharmacy Board has established that the respondent's conduct, constituted by the assault, is inconsistent with him being a fit and proper person to hold registration in the profession of pharmacy. The circumstances include: that the respondent's son had been bullied over a prolonged period by the classmate; that the respondent's repeated attempts to address this with the school had been ineffective; that the respondent had heard his son describe what appeared to be a particularly cruel episode of bullying by the classmate; and that immediately before the assault, the respondent witnessed his son wincing in pain from the injury apparently caused by the classmate and saw the red marks on his son's back. The assault was at the lowest end of the spectrum in terms of the level of violence. It is also relevant that the respondent had been physically abused as a child, that he had symptoms of PTSD and that his own abuse as a child was likely a triggering factor.
5. The respondent relies upon a large number of references from friends and colleagues which attest to the fact that he had not behaved violently before and that he had practised his profession without incident for over 30 years. The Pharmacy Board does not submit otherwise.
6. The authors of the references expressed the following opinions about the respondent's character and conduct:

(a) A friend and fellow pharmacist who stated that he has known the respondent for 33 years expressed the opinion that the respondent "strives to make sure that his presence in the world makes the world a better place" and commented that he once stepped in to protect a woman on a bus when men were assaulting a girl.

(b) A business development manager at the Pharmacy Guild of Australia who had worked with the respondent in the pharmacy industry in various roles indicated that he had always found the respondent to operate to the highest professional standards and to conduct himself in a professional manner.

(c) A pharmacist who had employed the respondent as a locum pharmacist over the two years up to July 2022 expressed the view that he always behaved in a professional way and was friendly and courteous.

(d) Another pharmacist who had known the respondent for over 8 years as at July 2022 stated that he had witnessed the respondent to be extremely ethical, polite and courteous and stated that he had only received positive comments relating to his workplace conduct.

(e) A person who had attended university with the respondent, and who had known him for over 37 years, stated that he always found the respondent to be a kind, caring, loyal and professional human being and, in his experience, "never violent."

(f) A pharmacist who employed the respondent as a locum pharmacist for the last four years as at June 2022 described his offending conduct as "out of character" and described the respondent as "a well respected, caring community pharmacist."

1. The authors of the references were not required for cross-examination and their opinions were not challenged. I accept, on the evidence of the referees, that the respondent's personal and professional conduct up to the date of the assault was typically courteous, professional (in a work context) and caring and that he was well respected in the community.
2. Having regard to the respondent's long history of appropriate behaviour in his professional and personal capacities, it could not be concluded, on the basis of the commission of the assault, that the respondent posed a risk to health or safety of the public in the exercise of his professional duties. Even before the respondent had expressed remorse, which happened very soon after the assault, it could readily be concluded from his history of pro-social behaviour and from the surrounding circumstances concerning the bullying of the respondent's son, that this was an isolated incident. It was not indicative of a tendency towards violent behaviour in the respondent's professional life.
3. The Pharmacy Board submits that the assault committed by the respondent would reasonably be regarded as disgraceful by members of the pharmacy profession of good repute and competency.[75] I agree. However, that is not conclusive of whether the conduct is inconsistent with the practitioner (that is, the respondent) being a fit and proper person to hold registration in the profession.
4. The language adopted by the Pharmacy Board, "reasonably be regarded as disgraceful," is taken from Allinson, a case concerning the professional discipline of a doctor. The New South Wales Court of Appeal made the following helpful comments about Allinson in EFA at [122], citing the relevant passage from Allinson:

The Court of Appeal in Allinson was called upon to consider whether it was open to the General Council of Medical Education and Registration to find that Dr Allinson was "guilty of infamous conduct in any professional respect" (the terminology of the relevant statute). The Court unanimously adopted as a definition of at least one kind of "infamous conduct in any professional respect" the following at 763:

"'If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency', then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect'."

1. The New South Wales Court of Appeal rejected the proposition that there is a category of professional misconduct in the common law of New South Wales which can be defined by the formulation taken from Allinson, divorced from the "fit and proper person" concept.[76] It noted that the Allinson formulation plays an important part in the application of the "critical criterion" of fitness.[77] However, the court emphasised that the critical criterion for establishing professional misconduct remained that of a fit and proper person.[78]
2. In the context of the third limb of the definition of "professional misconduct" in the National Law, the statutory definition makes plain that the test is that of fitness and propriety. The circumstance that a health practitioner's conduct would reasonably be regarded as disgraceful by the practitioner's colleagues is a relevant but non-determinative factor when determining whether the conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
3. Some indication of whether the assault committed by the respondent is inconsistent with him being a fit and proper person to hold registration in the profession of pharmacy may be gained from the decision of AHPRA, on 2 August 2022, not to take immediate action against the respondent.
4. A National Board may take immediate action in relation to a registered health practitioner if it reasonably believes that, because of the registered health practitioner's conduct, the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.[79] A National Board may also take immediate action in relation to a registered health practitioner if it reasonably believes the action is otherwise in the public interest.[80] "Immediate action" includes the suspension, or imposition of a condition on, the health practitioner's registration.[81]
5. AHPRA took into account various considerations when determining not to take immediate action against the respondent, including the respondent's insight and remorse and his reassurance that he would not practise pharmacy in the immediate local area. Those are not matters relevant to the question of whether the conduct constitutes professional misconduct under the third limb. Nevertheless, AHPRA's decision not to take any immediate action less than five months after the incident, tends to support the conclusion that, when considered in context, the assault committed by the respondent is not inconsistent with him being a fit and proper person to hold registration in the profession.
6. The remarks of the Special Magistrate on 7 October 2022 in the respondent's criminal matter are also relevant. The Special Magistrate referred to the bullying of the respondent's son and the school's failure to stop it[82] as well as the psychiatric report which indicated that the respondent was a victim of bullying as a child.[83] Her Honour described the assault as a "momentary brief aberration" but "unfortunately" one involving "a 55 year old man to a nine year old, 10 year old boy."[84] Her Honour considered that the assault was a "momentary lapse of control, perhaps triggered by his PTSD."[85] Taking into account all of the circumstances, the Special Magistrate decided on that day to put the respondent on a deferred sentence order for two months, suggesting that he complete 30 hours of community service voluntarily. On 13 December 2022, her Honour imposed a non-conviction order on the respondent, without any conditions.[86]
7. The outcome of the criminal proceedings was affected by the respondent's remorse and insight, as well as the community service he undertook voluntarily. Those matters are not relevant to the question of whether he engaged in professional conduct under the third limb of the definition. Nevertheless, the Magistrates Court also took into account matters which are relevant to that question (the circumstances of the offence, the bullying of the respondent's son and the respondent's psychological condition at the time). The outcome also provides some support for the conclusion that the respondent's offence is not inconsistent with him being a fit and proper person to be a registered pharmacist.
8. When considering the assault in all of the circumstances, I am not persuaded that the respondent's conduct in committing it is inconsistent with him being a fit and proper person to hold registration in the profession. It demonstrates an uncharacteristic lapse of judgment and a "momentary brief aberration" from his usual behaviour (to use the Special Magistrate's words). The respondent experienced, as he put it, as "tsunami of emotions" on seeing the marks on his son's back and failed to control them appropriately. However, as was the case in EFA, "an isolated instance of appalling conduct" does not necessarily justify a finding of unfitness.[87] Even if the respondent's conduct breached the Code of Ethics, and considering the conduct at the time he engaged in it, before he expressed remorse and insight, the conduct was not inconsistent with the respondent being a fit and proper person to be a registered pharmacist.

1. At the hearing, Ms Crick made the alternative submission that the respondent's conduct constituted professional misconduct within paragraph (a) of the definition.[88] That paragraph provides that professional misconduct includes "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."[89]
2. There is a question as to whether it would be procedurally fair for the Tribunal to make an adverse finding that the respondent engaged in professional misconduct within paragraph (a), given that this allegation was first raised at the hearing and the respondent was self-represented at that time. However, as I have found that the respondent's conduct does not fall within paragraph (a) of the definition in any event, it is not necessary to consider the issue of possible procedural unfairness.
3. Unprofessional conduct of a registered health practitioner:

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

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession.[90]

1. Ms Crick informed the Tribunal that the Pharmacy Board's "submissions in relation to the degree to which [the respondent's conduct] falls below the standard of conduct are encapsulated in what we say about the Code and the Code of Ethics."
2. The respondent's conduct of assaulting a child, in the circumstances in which it occurred, is not "professional conduct." That means that the primary part of the definition of "unprofessional conduct" does not apply to the conduct. However, a definition framed inclusively generally expands the meaning of the word or phrase defined beyond its ordinary meaning.[91] Accordingly, it is also necessary to consider whether any of paragraphs (a) to (h) in the definition of "unprofessional conduct" apply.
3. The Pharmacy Board relied upon paragraph (c) of the definition of "unprofessional conduct," quoted above, which refers to the conviction of the practitioner for an offence. Ms Crick had the following to say about the applicability of paragraph (c):[92]

Yes, we would read that as in relation to a conviction. We are saying that, you know, it is an inclusive definition of unprofessional conduct such that it doesn't prohibit - in the board's submission, we wouldn't need to tie the finding of guilt to the nature...

Simply that there is room within the definition for the circumstances. I think in supplement to that, we would say that if there is any work to be done or inspiration to be taken from paragraph (c), it is the capacity to affect. It is the 'may affect'. And, in our submission, a finding of guilt may affect continued suitability.

1. Paragraph (c) of the definition of "unprofessional conduct" does not apply on its terms, as it refers to "the conviction of the practitioner for an offence" and the respondent was not convicted of an offence. I accept that the definition of "unprofessional conduct" is inclusive but, as indicated above, the primary part of the definition of "unprofessional conduct" does not apply to the conduct because the conduct was not "professional conduct," it was personal conduct.
2. For these reasons, the respondent's conduct did not constitute professional misconduct within paragraph (a) of the definition and it did not constitute unprofessional conduct.
3. In light of this conclusion, it is appropriate to depart from the parties' agreed position, and to dismiss the application.

1. The Pharmacy Board sought its costs of the proceedings. Section 195 of the National Law provides: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings."
2. Section 48 of the ACAT Act provides: "The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders." The National Law is "another territory law" which "otherwise provides" for the purposes of section 48 of the ACAT Act.[93]
3. Further, pursuant to section 57 of the ACAT Act, an authorising law may set out the powers of the tribunal, and the decisions it may make on an application made under the authorising law. The National Law is an "authorising law."
4. Accordingly, the costs provision in the National Law gives the tribunal power to award costs.[94]
5. The Pharmacy Board's costs application was premised on the assumption that the Tribunal would make the orders sought by the parties in the Agreed Statement. In circumstances where I have made orders that neither party sought, the appropriate outcome is for each party to bear the party's own costs.
6. The Pharmacy Board's application for costs is dismissed.

[1] Non-publication and pseudonym orders were made on 20 January 2025. The respondent's name has now been anonymised in this republished version of the reasons. The reasons for decision otherwise remain unchanged from the date of original publication.

[3] Victorian Legal Services Commissioner v Burrows [2024] VCAT 481 at [72]. See also Medical Board of Australia v Ong [2024] VCAT 242 at [31]

[4] Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408 at [6]

[5] Dental Board of Australia v Miliankos [2024] VCAT 758 at [15]; Victorian Legal Services Commissioner v Burrows [2024] VCAT 481 at [72]; Commonwealth v Director Fair Work Building Industry Inspectorate [2015] HCA 46 at [57]-[58]

[7] A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1 at [21]. Further, see the oral submissions made on behalf of the Pharmacy Board at transcript of hearing dated 23 September 2024, page 6, lines 32-36

[8] Transcript of hearing dated 23 September 2024, page 18, lines 15-17

[9] Transcript of hearing dated 23 September 2024, page 18, lines 23-26

[10] Transcript of hearing dated 23 September 2024, page 19, lines 8-9

[11] Applicant's outline of submissions filed 26 August 2024 at [25]-[29]

[12] Transcript of hearing dated 23 September 2024, page 7, lines 20-21 and 25-27

[13] Transcript of hearing dated 23 September 2024, page 8, lines 13-15

[14] Transcript of hearing dated 23 September 2024, page 8, lines 37-39

[15] Transcript of hearing dated 23 September 2024, page 8, lines 19-21

[16] Transcript of hearing dated 23 September 2024, page 9, lines 1-8

[17] I note that the NSW Court of Appeal took a similar view in respect of the definition of "professional misconduct" in the Legal Profession Uniform Law (NSW), in Council of New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339 at [112]-[118]

[23] A Solicitor at [22]. See also Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [5]

[27] Medical Board of Australia v Cukier (Review and Regulation) [2017] VCAT 109 at [34]

[28] Medical Board of Australia v Wong [2015] QCAT 439 at [84]-[85]

[29] Medical Board of Australia v Cukier (Review and Regulation) [2017] VCAT 109 at [44]

[30] Medical Board of Australia v Cukier (Review and Regulation) [2017] VCAT 109 at [38]

[31] Nursing and Midwifery Board of Australia v DDN [2019] VCAT 2038 at [49]

[32] Medical Board of Australia v Arulanandarajah [2021] VCAT 85 at [32]

[33] [2021] VCAT 85 at [35]

[34] Medical Board of Australia v Al-Naser (No 2) (Occupational Discipline) [2024] ACAT 8 at [45]

[35] Midwifery Board of Australia v Clarke-Wakeling (Review and Regulation) [2022] VCAT 478 at [34]

[36] Midwifery Board of Australia v Clarke-Wakeling (Review and Regulation) [2022] VCAT 478 at [42]

[49] Medical Board of Australia v Wong [2015] QCAT 439 at [84]-[85]. See also Nursing and Midwifery Board of Australia v DDN [2019] VCAT 2038 at [49]

[50] Midwifery Board of Australia v Clarke-Wakeling (Review and Regulation) [2022] VCAT 478

[52] Nursing and Midwifery Board of Australia v Augustin (Occupational Discipline) [2022] ACAT 54

[53] Medical Board of Australia v Thompson (Review and Regulation) [2023] VCAT 1031

[54] Nursing and Midwifery Board of Australia v GMR (Review and Regulation) [2020] VCAT 157

[55] Medical Board of Australia v Koulouris (Review and Regulation) [2020] VCAT 348

[56] Report of Professor Douglas P Boer dated 18 September 2022, page 7, line 325 to page 8, line 332

[57] Report of Professor Douglas P Boer dated 18 September 2022, page 3, lines 98-101

[58] Report of Professor Douglas P Boer dated 18 September 2022, page 3, lines 95-98

[59] Transcript of hearing dated 23 September 2024, page 19, lines 19-21

[60] Report of Professor Douglas P Boer dated 18 September 2022, page 5, lines 201-204

[61] Report of Professor Douglas P Boer dated 18 September 2022, page 5, lines 219-231

[62] Transcript of hearing dated 23 September 2024, page 11, lines 1-2

[65] Transcript of hearing dated 23 September 2024, page 18, line 35

[66] Transcript of hearing, 23 September 2024, page 18, line 35

[67] Transcript of hearing, 23 September 2024, page 18, line 37

[68] Transcript of hearing, 23 September 2024, page 20, line 46

[69] Transcript of hearing dated 23 September 2024, page 21, lines 3-34

[71] Transcript of hearing dated 23 September 2024, page 11, lines 38-45

[75] Applicant's outline of submissions filed 26 August 2024 at [35(b)]

[82] Transcript of hearing of respondent's criminal matter in Magistrates Court of the Australian Capital Territory, 7 October 2022, page 5, lines 13-31

[83] Transcript of hearing of respondent's criminal matter in Magistrates Court of the Australian Capital Territory, 7 October 2022, page 6, lines 20-25

[84] Transcript of hearing of respondent's criminal matter in Magistrates Court of the Australian Capital Territory, 7 October 2022, page 9, lines 35-36

[85] Transcript of hearing of respondent's criminal matter in Magistrates Court of the Australian Capital Territory, 7 October 2022, page 10, lines 24-25

[86] Transcript of hearing of respondent's criminal matter in Magistrates Court of the Australian Capital Territory, 13 December 2022, page 2

[88] Transcript of hearing dated 23 September 2024, page 12, lines 10-13

[89] National Law s 5, paragraph (a) of definition of "professional misconduct"

[90] National Law s 5, paragraph (c) of definition of "unprofessional conduct"

[92] Transcript of hearing dated 23 September 2024, page 14, lines 18-21

[93] Howard v Psychology Board of Australia [2018] ACAT 127 at [10]-[14]

[94] See Nursing and Midwifery Board of Australia v Deeranyika [2022] ACAT 87 at [49]-[50]