(a) to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;

(g) To oversee the receipt, assessment and investigation of notifications about persons who -

(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; or

(i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;

1. Part 8 of the current HPR Act concerns the health, conduct and performance of practitioners.
2. Section 193, within Part 8 of the current HPR Act, provides:

(1) Subject to section 193A,[9] a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

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

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

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

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

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

17. 'Professional misconduct' is defined in s 5 of the current HPR Act as follows:

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

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

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

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

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

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

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

(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession.

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

1. The May 2023 amendments also amended s 193 of the old HPR Act. Relevantly, s 193(1)(a)(ii) of the old HPR Act provided that the Board must refer a matter about a registered health practitioner if the Board reasonably believes that the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular. This requirement was removed by the May 2023 amendments.
2. The May 2023 amendments also inserted ss 85A to 85E. In similar terms to s 193(1)(a)(ii) of the old HPR Act, s 85A of the current HPR Act provides that the Board may withdraw the registration of a registered health practitioner if the Board reasonably believes the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular.
3. Sections 85B to 85E provide for obtaining submissions from the health practitioner, the Board's decision whether to withdraw the practitioner's registration, giving notice to the practitioner regarding the Board's decision, and when the Board's decision takes effect.

1. I discuss the parties' submissions in more detail in the course of my analysis but, in summary, the applicant submits that:

(a) VCAT has jurisdiction under s 138 of the current HPR Act, which expressly permits proceedings against a registered practitioner for conduct occurring before registration;

(b) this provision, introduced by the May 2023 amendments, was intended to remove doubt and confirm the longstanding interpretation that pre-registration conduct could be referred for professional misconduct proceedings;

(c) applying s 138 does not breach the principle against retrospectivity because the law regulates future consequences of past conduct, consistent with its protective purpose;

(d) the respondent's claim of an accrued right to be assessed under the old HPR Act is unsupported by the text and inconsistent with the Act's purpose;

(e) such an interpretation would create arbitrary distinctions between practitioners and undermine public protection;

(f) the explanatory memorandum for the May 2023 amendments confirms continuity rather than change, stating the amendment was intended to remove doubt and reflect longstanding interpretation and practice;

(g) regulatory proceedings do not involve adjudication of private rights, and there is no legitimate expectation of immunity from disciplinary consequences for potentially serious past misconduct while continuing to benefit from registration.

(a) the old HPR Act applies because the referral and investigation occurred before the May 2023 amendments;

(b) the decision in Jackson & Smith held that tribunals lacked jurisdiction over pre-registration conduct under the old HPR Act and VCAT is bound by the finding in Jackson & Smith;

(c) alternatively, even if the current HPR Act applies, the definition of professional misconduct in s 5 - limited to conduct 'of a registered health practitioner' - means only conduct during registration can be referred;

(d) applying s 138 retrospectively would impose liabilities contrary to established principles, especially given potential civil penalties under s 196(2)(c); and

(e) pre-registration conduct should be addressed through registration processes or under ss 85A-85E of the current HPR Act, not a tribunal referral.

1. The issues in this proceeding essentially turn on the principles of statutory interpretation. The applicant cites and relies on an uncontroversial summary of those principles as they relate to the issues in this application, as follows:

(a) the task of statutory construction begins and ends with a consideration of the text itself;[11]

(b) the current HPR Act should generally be given a beneficial interpretation to promote its protective purpose;[12]

(c) in particular, the current HPR Act provides for a regime to protect the public through the regulation of registered health practitioners, with objects that include 'to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered';[13]

(d) VCAT's jurisdiction is conferred by the current HPR Act and in Owners of Shin Kobe Maru v Empire Shipping Company Inc,[14] the High Court said: 'It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words';[15]

(e) Item 7 of Schedule 7 of the current HPR Act confirms that 'in the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation';

(f) as was observed in Medical Board of Australia v Kemp,[16] regulatory proceedings, such as the present, are 'not determinative of private rights'. Rather, 'the right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than the conferral of a private right'; and

(g) a construction should be avoided that has an arbitrary or unreasonable effect.[17]

1. The respondent's arguments on statutory interpretation are largely framed by reference to the decision in Jackson & Smith. As the applicant observed, in Jackson & Smith, the Full Court of the Supreme Court of South Australia determined that the South Australian Civil and Administrative Tribunal ('SACAT') did not have jurisdiction to determine allegations of professional misconduct in two referral proceedings. In each case, the conduct involved 'pre-registration' conduct.
2. The Court held that, in the circumstances of the referral proceedings, the old HPR Act did not confer jurisdiction on the SACAT with respect to pre-registration conduct. That case was, by agreement, conducted on the basis of the old HPR Act only.[18] The Court did not express any opinion on the meaning or effect of the May 2023 amendments, including the jurisdiction recognised by the current s 138.
3. The respondent noted that in Jackson & Smith, the Full Court set out:

(a) the background to the two SACAT proceedings ([7]-[19]);

(b) the relevant provisions of the old HPR Act ([20]-[39]);

(c) the primary judge's reasons ([40]-[51]); and

(d) the parties' submissions ([52]-[58]),

before analysing the critical issue for this case from [67]-[78], that being whether there was jurisdiction to hear and determine a matter about a registered practitioner where the behaviour the subject of the matter occurred before the practitioner's registration.

1. At [68], the Full Court acknowledged that there was no clear textual basis in ss 193 or 196 of the old HPR Act to limit jurisdiction to referrals relating to a practitioner's behaviour while registered. The Court then addressed the applicant Boards' arguments relying on the breadth of 'legislative description of the subject matter which may be the subject of a referral and determination' in s 193 of the old HPR Act.
2. The Boards submitted that s 193(1)(a)(ii)[19] of the old HPR Act plainly related to pre-registration conduct, which the Court accepted as being 'contextually relevant' (at [70]). However, the Court found that 'this does not ... directly address whether the first limb [at s 193(1)(a)(i)] encompasses a referral' based on pre-registration conduct. The Court then discussed further submissions of the Boards, noting that they had 'some force', but concluding at [72] that they:

overlook a significant aspect of the definitions of both 'professional misconduct' and 'unprofessional conduct'. The definitions of both of these terms are expressly confined in their terms to conduct 'of a registered health practitioner', and in this way provide some support for a construction of ss 193 and 196 which is confined to consideration of behaviour occurring during a period of registration [emphasis added].

1. Notably, the Court then observed that the wording 'behaviour while registered' in ss 138 and 139 of the old HPR Act provided 'further contextual support' for limiting the referral duty and jurisdiction. At [75], the Court addressed what was apparently asserted by the Boards to be a significant problem with the practitioners' preferred construction, namely that:

addressing past conduct only through the prism of applications to register or renew would risk distorting the scheme enacted through the National Law; that it would result in allegations of misconduct being addressed through an application process that does not appear to contemplate the hearing or determination of contested facts.

1. The Court rejected the Boards' concern, noting at [76] that the 'registration and renewal process under the National Law provides an appropriate mechanism for addressing concerns relating to conduct that occurred while a practitioner was not registered'.
2. For its part, the applicant referred to VCAT's recent discussion of Jackson & Smith in the decision of Medical Board of Australia v Gerstman ('Gerstman').[20] As in the present case, the practitioner also sought to rely on Jackson & Smith to challenge the jurisdiction of this Tribunal with respect to alleged conduct engaged in prior to registration under the current HPR Act. The jurisdictional challenge was dismissed.
3. As the applicant observed, a feature of Gerstman not present in the current case is that the alleged conduct occurred while the practitioner was registered under a 'corresponding prior law'. In dismissing the jurisdictional challenge, VCAT concluded that the judgment in Jackson & Smith did not purport to, and did not, deal with this issue.[21] It held that even under the old HPR Act, the Tribunal had jurisdiction over such a referral. In the circumstances, the Tribunal did not need to consider the meaning or effect of s 138 of the current HPR Act. It did, however, note that its construction of the old HPR Act was 'bolstered' and 'confirmed' by s 138 of the current HPR Act.[22]

The current HPR Act applies to this application

The timing of investigation, conduct and registration are not determinative

1. The respondent submits that the old HPR Act applies to the referral in this proceeding. He asserts that the applicant's reliance on the old HPR Act in making that referral was appropriate, drawing attention to the fact that the applicant made its referral to VCAT by reference to s 193(1)(a)(i) of the old HPR Act, a provision that no longer exists in the current HPR Act. The respondent argues that the old HPR Act should apply given that the applicant's notification, its investigation, and its decision to make the referral, all took place when the old HPR Act applied.
2. The applicant observes that if the old HPR Act does indeed apply to this proceeding based on the timing of when it decided to refer to the matter, as the respondent submits, then the proceeding would be a nullity because VCAT lacks jurisdiction. However, the applicant submits that, on such an interpretation, there would be no impediment to it making a fresh referral under the current HPR Act, as the respondent continues to take the benefit of registration under the current HPR Act. This results in an awkward and cumbersome outcome, where the applicant is required to make a new referral for the same matter.
3. Though the applicant may have referred to sections of the old HPR Act in its referral letter, this does not amount to any assertion on its behalf that those provisions would apply. This is particularly so considering that the matter was referred within a period of less than two weeks after the Act was amended, making it more understandable why the applicants documents referred to the old HPR Act. Regardless, any suggestion that the applicant's reference to sections of the old HPR Act in its initiating materials somehow binds the Tribunal to apply them, is unsustainable. The respondent does not appear to assert otherwise.
4. There are no transitional provisions governing when the current HPR Act is taken to apply to any extant referral. In particular, there is no provision in the May 2023 amendments that would support an argument that the timing of the applicant's notification to the respondent, its investigation or its decision to make the referral, have a bearing on which Act would apply. Nor does the respondent rely on any authorities in support of such a proposition. This is unsurprising - this proposition is also unsustainable.
5. I can think of no circumstances where events as arbitrary as the timing of a notification, an investigation (which, by definition, must span a series of weeks or longer) or a decision to make a referral, could fix the date for the application of a particular version of an Act. In the absence of an express transitional provision to the contrary, amendments to an Act will apply when they 'commence' in accordance with the terms of the amending legislation.
6. The date of commencement of a proceeding (in this case, the referral to VCAT) may sometimes be relevant, but here the referral was made after the May 2023 amendments commenced. It is therefore unnecessary for me to consider whether the old HPR Act might apply to a referral made before the commencement of the May 2023 amendments.
7. Turning to the question of whether the timing of the respondent's conduct or registration determines which version of the HPR Act applies, the applicant submits that the respondent could have no legitimate expectation that he may hold registration under the current HPR Act (and any future amended version) now and into the future, but only ever be regulated under the old HPR Act. It is a reasonable expectation that all registered practitioners are subject to the same scheme for professional regulation.
8. I agree. Putting to one side for the moment the question of retrospective effect, it would be arbitrary and nonsensical to maintain a regime where the old HPR Act continued to apply indefinitely to a practitioner registered under that Act. For example, if two practitioners engaged in the same type of conduct at the same time before their registration, yet one was registered before the May 2023 amendments and the other after, then only the practitioner registered after that date could be made subject to Part 8 of the Act for that conduct (including by way of investigation, immediate action or referral).
9. Further, these types of arbitrary distinctions are inconsistent with the protective purpose of the legislation. Self-evidently, the protection of the public and public confidence in the registration of health practitioners is not advanced where different practitioners are subject to different standards despite engaging in identical conduct, merely because of the date of their registration or the date of that conduct, particularly where that conduct is serious.
10. Taking into account these potentially arbitrary outcomes, I am satisfied that neither the timing of the practitioner's registration nor timing of the conduct (relative to the HPR Act amendments) are determinative of which version of the HPR Act should apply. Subject to the question of retrospective effect discussed below, it is only the current HPR Act that applies to this proceeding.

The HPR Act amendments confirmed VCAT's jurisdiction

1. The applicant also relies on the Explanatory Notes accompanying the May 2023 amendments to support its argument that practitioners should not be treated differently depending on when they were registered or when the alleged professional misconduct occurred. The Explanatory Notes state (emphasis added by applicant):[23]

New section 138 provides that a notification may be made and proceedings may be taken under part 8 against a person who is a registered health practitioner in relation to behaviour that occurs while the practitioner is registered, occurred before the practitioner was registered, or that occurred during any other period in which the practitioner was unregistered, such as during a lapse or suspension in registration. This amendment is intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration, which has been the longstanding interpretation and practise of regulators and tribunals.

1. The applicant says that this confirms that the May 2023 amendments were intended to clarify what was already understood to be the longstanding operation of the old HPR Act, that being that pre-registration conduct could be the subject of the referral under s 193. It follows that VCAT's jurisdiction was essentially confirmed rather than conferred anew, providing continuity between the old and current HPR Acts. The applicant says creating a 'fractured scheme' where practitioners are treated differently based on the timing of their registration or alleged misconduct would frustrate the purpose of the May 2023 amendments.
2. The respondent submits that VCAT's jurisdiction to hear referrals for pre-registration conduct could not have been simply 'confirmed' by the amendments, because it proceeds from the impermissible premise that Jackson & Smith was wrongly decided. Given that the Full Court in Jackson & Smith concluded that jurisdiction did not exist for the Tribunal to hear referrals involving pre-registration conduct under the old HPR Act, the respondent says that May 2023 amendments could not have only provided clarity and continuity. The respondent says that s 138 of the current HPR Act does not confirm any pre-existing jurisdiction to make a referral in respect of pre-registration conduct, as that jurisdiction was found not to exist by the Court in Jackson & Smith.
3. However, it is critical in examining these competing submissions to bear steadily in mind that Jackson & Smith was decided in March 2025, nearly two years after the amendments were made. Even if it is accepted that the Full Court's decision reflects the proper reading of the old HPR Act, the legislature's intention in making the May 2023 amendments was to confirm the 'longstanding interpretation and practise of regulators and tribunals', which had not yet been determined otherwise by the Full Court in Jackson & Smith. The legislature had a particular understanding of how the old HPR Act operated, and the legislature enacted amendments to confirm that understanding, notwithstanding the Full Court's later interpretation of the Act.
4. The respondent says that if continuity was the goal, then this would support the view that VCAT does not have jurisdiction. Arguably, if the Full Court confirmed that there is no jurisdiction over pre-registration misconduct, and the current HPR Act achieved continuity from the old HPR Act, then the Full Court's decision should also find continuity and apply to the current HPR Act. However, the Full Court's conclusion on the Tribunal's jurisdiction over pre-registration conduct cannot be blindly applied on this basis. To do so would ignore the very amendments themselves and specific wording chosen by the legislature in making those amendments.

1. The respondent submits also that applying the current HPR Act (as the applicant submits it should be interpreted) would involve an impermissible retrospective application of those provisions. His argument does not focus on the existence of any 'accrued right' for the proceeding to be determined under the old HPR Act, but instead focuses on the current HPR Act imposing an impermissible new liability. In support, the respondent cites the following passage from the High Court:[24]

a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to ... events that have already occurred in such a way as to ... impose ... liabilities which the law had defined by reference to past events.

1. The applicant submits that the principle against retrospectivity is not offended in this case. It says that the law is not truly retrospective in its effect, or alternatively, the presumption against retrospectivity is rebutted in this instance.
2. In submitting that the current HPR Act is not truly retrospective, the applicant says that a law is not retrospective simply because it attaches new consequences to past events.[25] The applicant cites Re A Solicitor's Clerk,[26] in which an amending Act made past conduct by a solicitor's clerk a potential ground for disqualification. In that case, the Court held that the amending Act was 'not in truth retrospective' because it 'simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past'.[27] The applicant also relied on Gerstman, in which VCAT stated that professional disciplinary proceedings are in a class of their own with respect to questions of retrospectivity.[28]
3. Referring to Dixon J's statement of principle in the passage quoted above, the applicant submits that there is no such liability being imposed on the respondent, as the HPR Act creates a scheme about a public licence and not about private rights. More specifically, the HPR Act creates a scheme for professional registration, where a registered practitioner has the right to use a protected title and is held out to the public as a member of the regulated profession.
4. The corollary of obtaining the benefit of registration and the use of a protected title is being regulated under the scheme. Notably, this includes regulatory action under Part 8. Even if the scheme takes into consideration pre-registration conduct, ultimately it is the practitioner's entitlement to remain registered into the future that is affected. To the extent that there is any burden imposed by Part 8, this is a function of the voluntary decision of the practitioner to opt into and remain under the regulatory scheme.
5. The respondent submits that Re A Solicitor's Clerk may be distinguished. He says that the solicitor's clerk faced only disqualification of his right to practise, whereas under the HPR Act, a respondent to a referral under s 193 may also face the imposition of a civil penalty in the form of a fine of up to $30,000 (under s 196(2)(c)) in addition to their right to practise being interfered with (under ss 196(2)(b), (d), and (e)).
6. In response, the applicant says that the powers in s 196, including the power to impose a civil penalty, are conferred on the relevant tribunal to deal with a broad range of circumstances. These circumstances are not strictly limited to matters such as the present where a practitioner engaged in alleged misconduct before registration. The power to impose a fine under s 196 may be an appropriate outcome for a tribunal to impose in matters involving behaviour that occurred during registration, for instance, which would involve no concern that the exercise of power has retrospective effect.
7. The applicant argues that s 196, being a discretionary power, must be exercised consistently within the purposes of the overall scheme and is not capable of being exercised for a punitive purpose. It says that a fine would only be open as a discretionary exercise of power under s 196 in a matter involving pre-registration conduct if that conduct relevantly engaged the discretion and the discretion could be exercised for a proper public non-punitive purpose. The applicant notes that a fine might be less onerous than cancellation or suspension of registration, for instance.
8. For its alternative argument regarding the law's retrospectivity, the applicant submits that if applying s 138 in this matter does indeed have a retrospective effect, this is nevertheless consistent with the purpose of the provision. It says that the strength of the presumption against retrospectivity depends on the circumstances of the legislation, including the nature of the rights and reasonable expectations affected.[29] The applicant submits that no legitimate expectation has been affected by the May 2023 amendments, and makes the following points:

(a) the current HPR Act is remedial and beneficial legislation, with a purpose of protecting the public;

(b) regulatory proceedings such as the current matter do not involve a process of adjudication of private rights;

(c) it is incoherent to speak of an accrued right or expectation to be immune from possible disciplinary consequences of his past sexual misconduct with a person under the age of 16, whilst at the same time seeking to hold the ongoing benefit of being registered as a psychologist under the current HPR Act.

1. The applicant further submits that the presumption against retrospectivity does not apply where the legislation is intended merely to be declaratory of what the law has been, such as legislation that is introduced to remove doubt as to how the legislation operates.[30] To the extent that an Act 'declares' and makes clear the operation of a previous Act, it is presumed to operate from the commencement of that previous Act.[31]
2. It is clear that the legislature intended, as indicated in the Explanatory Notes, for the May 2023 amendments to confirm the 'longstanding interpretation and practise' of professional misconduct proceedings being taken against a practitioner for behaviour that occurred before registration. However, this declaratory intention is not clearly stated in the current HPR Act itself. Regardless, it is a question of substance whether the Act is declaratory, in spite of any particular wording or phrasing that might indicate the legislature's intention for it to be declaratory.
3. I note that the applicant Board in Gerstman also raised an argument that s 138 under the current HPR Act has declaratory effect, at least in respect of the Tribunal's jurisdiction to hear matters involving conduct engaged in under corresponding prior Acts. The Senior Member deemed it appropriate to have regard to extraneous materials in interpreting s 138, and determined that the 'new' s 138 was confirmatory of the position before its enactment.
4. Although the current matter also involves consideration of s 138, it is of course in a different context to Gerstman where the matter related to conduct while registered under a corresponding prior Act, therefore I cannot directly adopt the Senior Member's reasoning to apply in this matter.
5. Further, the respondent submits that an Act which overrides an earlier judicial interpretation of a statute is not simply declaratory.[32] But as discussed above, the May 2023 amendments were made before Jackson & Smith was decided in March 2025, therefore the amendments cannot be considered as 'overriding' an earlier judicial interpretation, as that judicial interpretation did not exist at the time.
6. However, even if the May 2023 amendment did not strictly override an earlier judicial interpretation, since Jackson & Smith was decided the operation of the current HPR Act (assuming the applicant's preferred interpretation) and the operation of the old HPR Act nevertheless now conflict in respect of the Tribunal's jurisdiction to hear professional misconduct proceedings involving behaviour before registration.
7. Determining whether an Act is declaratory is a question of substance, therefore it seems inappropriate to treat the current HPR Act (again assuming the applicant's preferred interpretation) as confirming the operation of the old HPR Act, when under its proper interpretation, the old HPR Act in substance does not confer jurisdiction on the Tribunal.
8. It is perhaps arguable that the current HPR Act could have been considered declaratory before Jackson & Smith was handed down, but this is unnecessary for me to determine. Deeming the current HPR Act as declaratory now would either mean that Jackson & Smith was wrongly decided, or mean that the current HPR Act must be interpreted in accordance with Jackson & Smith, which for reasons set out below, is not appropriate.
9. Even though it is doubtful whether the current HPR Act may be considered declaratory, I am nevertheless satisfied that the current HPR Act does not have an impermissible retrospective effect, essentially for the reasons submitted by the applicant. In particular, I agree with the applicant that the corollary of obtaining the benefit of registration and the use of a protected title is being regulated under the scheme, including by facing regulatory action under Part 8. To the extent that there is any burden imposed by Part 8, this is a function of the voluntary decision of the practitioner to opt into and remain under the regulatory scheme.
10. As the Full Court of the Victorian Supreme Court held in Robertson v City of Nunawading,[33] the principle against retrospective operation is not concerned with the case where the Act under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that. This is such a case, as was Re a Solicitor's Clerk. I agree with the applicant that the circumstance of that case are analogous to the present. I would add that they are also analogous with the circumstances in La Macchia v Minister for Primary Industry.[34]
11. The respondent was never granted some exemption or immunity from professional misconduct proceedings for his past behaviour. Nor could it be seriously suggested that his decision to engage in the pre-registration conduct was in any way influenced or affected by any expectation he might have then had about its effect on the prospect of his future registration as a psychologist.
12. Accordingly, while relating to conduct occurring before its commencement in May 2023, the May 2023 amendments do not interfere with any existing rights or expectations such that it is given an impermissible retrospective effect. To the extent that any new liability is imposed by reference to past events (that being, the pre-registration conduct), it is merely imposed for the future.
13. The respondent's primary argument in response to this (and for distinguishing Re a Solicitor's Clerk) concerns the potential imposition of a civil penalty under s 196 of the current HPR Act. I agree that imposing a civil penalty may be considered different to imposing conditions on, suspending or cancelling a practitioner's registration. But, as the applicant submits, this may only be imposed for a proper public non-punitive purpose. It is difficult to envisage that such a purpose would be found to exist in the case of the respondent's admitted pre-registration conduct.
14. I am therefore satisfied that the Tribunal is bound to apply the current HPR Act to the circumstances of this case.

The analysis in Jackson & Smith no longer applies

1. The respondent submits that Jackson & Smith must be followed by VCAT in this proceeding, where it was concluded that the relevant tribunal did not have jurisdiction to consider and determine a practitioner's conduct that occurred before their registration under the HPR Act in referral proceedings commenced under s 193(1) of the old HPR Act.
2. The respondent says that VCAT is necessarily bound by the Full Court's interpretation of the HPR Act because it is uniform legislation, and because tribunals are bound to follow the decisions of courts, including decisions of Supreme Courts belonging to different jurisdictions.[35] The respondent further submits that, if VCAT determines that it is not strictly bound by the decision in Jackson & Smith, it should nevertheless follow the decision unless satisfied that it is plainly wrong.[36]
3. I accept that Jackson & Smith is binding on VCAT or otherwise must be followed because it is not plainly wrong. The decision does not appear to possess any of the attributes of a 'plainly wrong' or 'clearly wrong' judgment, and the applicant did not make any submissions in support of such an argument.
4. However, I need only follow Jackson & Smith to the extent that the reasoning applies to this matter. Ultimately, the Full Court's decision is concerned with the old HPR Act, and thus the Court's reasoning does not necessarily translate to the current HPR Act. Although the respondent's primary argument is that the old HPR Act applies and thus Jackson & Smith must be followed, he also argues that the reasoning in Jackson & Smith equally applies to the current HPR Act.
5. In this regard, the respondent relies on the Full Court's interpretation of 'professional misconduct' in s 5, which is unchanged between the old and current HPR Acts. The definition of professional misconduct is confined to conduct 'of a registered health practitioner'. As set out above, the Full Court at [72] says the confined definition of professional misconduct provides 'some support' for a construction of ss 193 and 196 (of the old HPR Act) where only behaviour that occurred during the period of registration is considered. The respondent says that the legislature did not amend s 5 as part of the May 2023 amendments because adequate provisions were made elsewhere to deal with any potential 'loopholes' that the legislature thought existed under the old HPR Act.
6. The applicant submits that every provision in an Act must be read, together with any amendments, as one Act.[37] It says that the amendment of one provision, such as s 138 of the HPR Act, may affect the proper construction of a provision that has not been amended, such as definitions found in s 5 of the HPR Act. This is supported by Item 36 of Schedule 7 of the HPR Act, providing that the Act and all Acts amending it are to be read as one.
7. The applicant cites Project Blue Sky Inc v Australian Broadcasting Authority,[38] in which the High Court held that a 'legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals', and that where conflict arises between provisions, the meaning of the competing provisions may be adjusted to 'give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions'.[39] The applicant also relies on the High Court's judgment in Kelly v The Queen,[40] submitting that a definitional provision should not be read down by a substantive provision of the same Act which serves a particular purpose.[41]
8. I agree with the applicant that the amendments made to the HPR Act require that the Act and its provisions, including the definition of professional misconduct in s 5, be construed afresh. In my view, if Jackson & Smith had been decided in relation to the current HPR Act, the Full Court's interpretation of the Act and eventual decision would have inevitably followed a different path of reasoning.
9. In particular, the Full Court would have considered the effect of the definition in s 5 of the HPR Act without any assistance from the words 'the person's behaviour while registered ...' in ss 138 and 139 of the old HPR Act, and instead been required to confront the express reference in s 138 of the new HPR Act to 'behaviour that ...occurred before the practitioner was registered ...' under the HPR Act. This change is material and, in my view, decisive. It is inappropriate to simply adopt the Court's reasoning and interpretation of the old HPR Act at face value without contemplating how the Act may be read differently following the May 2023 amendments.
10. In summary, the s 5 definition of 'professional misconduct' only comprised part of the Full Court's reasoning in Jackson & Smith in concluding that s 193 was confined to behaviour occurring during a period of registration. The Court's conclusion was reinforced by the wording of ss 138 and 139 in the old HPR Act being confined to 'behaviour while registered'.[42] Given that both ss 138 and 139 have since been amended, I am satisfied that the reasoning in Jackson & Smith cannot be applied directly to a referral under the current HPR Act.

If the current HPR Act applies, VCAT does have jurisdiction

1. The respondent submits that, even if the current HPR Act applies, VCAT nevertheless lacks jurisdiction to hear the matter. In Jackson & Smith, the Full Court observed that s 193(1)(a)(ii) in the old HPR Act 'plainly encompasses a referral based upon behaviour or conduct that occurred prior to the practitioner achieving the status of registration'. The respondent notes that the amendment to s 193, which removed this subsection, thus also removes an argument that may be advanced in favour of VCAT having jurisdiction to hear a referral relating to pre-registration conduct.
2. The respondent says that any pre-registration conduct that was not disclosed in the registration process is now instead dealt with under the newly inserted ss 85A to 85E in Div 6A of Part 7 of the current HPR Act. The respondent submits that the current HPR Act plainly contemplates that pre-registration conduct that might bear adversely on a practitioner's suitability to hold registration will be dealt with via the processes dealing with application and renewal of registration. He notes that this is consistent with the protective purpose of the HPR Act. The respondent also notes that the Board can take immediate action under s 156 of the current HPR Act if they discover serious pre-registration conduct.
3. Under s 193(1)(a)(ii) of the old HPR Act, the Board would refer a matter to the Tribunal if it reasonably believed that a practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular. Under ss 85A to 85E of the current HPR Act, the Board may instead withdraw a practitioner's registration under those same circumstances. At face value, given that the same wording is adopted between s 193(1)(a)(ii) and s 85A, it seems apparent that the new sections are designed to address the same scenarios but by a different process.
4. The Explanatory Notes for the May 2023 amendments make it clear that these newly inserted sections allow for the Board to respond more effectively to such situations without having to resort to disciplinary action. Sections 85A to 85E involve an exercise of the Board's registration powers under Part 7 of the current HPR Act, as distinct from the Board's powers to take disciplinary action to suspend or cancel a practitioner's registration under Part 8.[43] The Explanatory Notes provide that this is intended to protect the integrity of the registration process.[44]
5. It is certainly possible that the respondent's pre-registration conduct could be addressed under ss 85A to 85E of the current HPR Act, if the Board 'reasonably believes that the practitioner's registration was improperly obtained because the practitioner ... gave the Board information or a document that was false or misleading in a material particular'. However, it does not follow from this that the respondent's misconduct is not also captured by s 138 of the current HPR Act.
6. In general, there may be overlap between the categories of pre-registration conduct that amounts to professional misconduct and conduct that was not disclosed in obtaining registration, but the two categories are not synonymous. In particular, the Board may withdraw registration under s 85A based on provision of information or a document that was false or misleading in a material particular, regardless of whether this amounted to, or related to behaviour amounting to, professional misconduct. In contrast, a referral under s 138 in respect of behaviour that occurred before a practitioner is registered, can only occur if the behaviour reaches the professional misconduct threshold.[45]
7. Further, ss 85A to 85E only provide a mechanism to address the fact that a practitioner failed to disclose information. These provisions do not provide a mechanism for dealing with the conduct itself. Simply because the May 2023 amendments have established a different mechanism for dealing with a practitioner's failure to disclose certain information in obtaining registration, does not mean that the legislature did not also intend for pre-registration conduct to be capable of constituting professional misconduct that may be subject to a referral under s 138 of the current HPR Act.
8. Ultimately, the express words of s 138(1)(b) in the current HPR Act confirm that proceedings may be brought against a practitioner in relation to behaviour that occurred before they were registered as a practitioner. In my view, there is no warrant for reading the potential applicability of ss 85A to 85E to the respondent's misconduct as limiting the operation of ss 138 and 193.
9. The respondent says that the purpose of s 138 in the current HPR Act is merely to 'plug the gap' in s 139B, where a practitioner is currently registered under the HPR Act but faces allegations of misconduct alleged to have occurred under a corresponding prior law. He says that s 138 does not cover alleged misconduct that occurred before a practitioner's registration under the HPR Act or any corresponding prior law.
10. The applicant observes that s 138(1)(b) of the current HPR Act expressly assumes that the definition of 'professional misconduct' may apply to conduct engaged in by a practitioner before becoming registered, and submits that there is no necessary implied or express limitation on this.
11. Again, I agree. As I have already observed, s 138(2) provides that the behaviour that occurred before registration may not constitute unsatisfactory professional performance or unprofessional conduct, but this sub-section expressly does not carve out professional misconduct.
12. Under the s 5 definition, professional misconduct may include instances of unprofessional conduct. However, by sub-paragraph (c), it can also include conduct that is inconsistent with the practitioner being a fit and proper person to hold registration, independently of any unprofessional conduct. Thus it is clear that this category of professional misconduct occurring before a practitioner's registration may be the subject of a referral under s 138 of the current HPR Act.
13. Indeed, the Explanatory Notes for the May 2023 amendments, as previously set out, provide that the amendment to s 138 'is intended to remove doubt that proceedings may be taken against a registered health practitioner for professional misconduct with regard to behaviour that occurred before they were registered or during a gap or suspension in registration'.
14. The s 138 amendment was clearly intended to go further than the respondent's suggested narrow interpretation, with no necessary implication that s 138(1)(b) is limited to behaviour that occurred while registered under a prior law.
15. For the reasons above, I am satisfied that VCAT has jurisdiction to hear a professional misconduct referral in relation to behaviour of the respondent that occurred before he was registered.

[1] The National Law applies in Victoria pursuant to s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).

[2] Respondent's Submissions dated 5 December 2024, [1]-[5], [12], [22]; Tribunal Book, Tab 8 ('TB').

[3] [2025] SASCA 25.

[4] TB Tab 1, Page 5; Respondent's Submissions dated 5 December 2024, [1]-[5], [12], [22].

[5] TB Tab 2, Page 8; Tab 3, Page 16.

[6] TB Tab 9, Page 54.

[7] Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld), see s 2, 'Commencement' and s 90, 'Replacement of ss 138 and 139'.

[8] TB Tab 1, Page 1.

[9] Section 193A permits the National Board not to refer a matter if there is no public interest in doing so.

[10] Section 139 is not relevant as it applies to behaviour which occurred after the practitioner's registration ended.

[11] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[12] R v ACR Roofing Pty Ltd [2004] VSCA 215; (2004) 11 VR 187, [43] (Nettle JA). See also Gilhooley v HCC [2021] VSC 232, [49].

[15] Ibid 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[16] [2018] VSCA 168; (2018) 56 VR 51, 83 [166].

[17] Footscray City College v Ruzica [2007] VSCA 136; (2007) 16 VR 498, 505 [16] (Chernov J); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 (Mason and Wilson JJ).

[18] Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith [2025] SASCA 25, [21] ('Jackson & Smith'). See also Medical Board of Australia v Gerstman [2025] VCAT 529, [119] ('Gerstman').

[19] The old 'second limb' of the referral power, by which a National Board could refer to a responsible tribunal an allegation that a practitioner's registration was improperly obtained.

[20] [2025] VCAT 529, [119].

[23] Explanatory Notes, Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) 66.

[24] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 278 (Dixon J), as cited in (amongst others) Rodway v The Queen [1990] HCA 19; 169 CLR 515; Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; 246 CLR 117.

[25] Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [9.570]; Re A Solicitor's Clerk [1957] 1 WLR 1219, 1222-3; Yarra City Council v Metropolitan Fire and Emergency Services Board [2017] VSCA 194, [179]-[220] (Warren CJ, Tate and Osborn JJ).

[26] [1957] 1 WLR 1219. The applicant also cited Walton v McBride [1989] NSWCA 222; Dental Board of Australia v Dr Ho [2019] VCAT 467 (Review and Regulation), [28]-[33]; Medical Board of Australia v XOT (Review and Regulation) [2022] VCAT 1223, [60]-[61]; Medical Board of Australia v Dr Isman (Review and Regulation) [2023] VCAT 232, [12]-[16].

[27] Re A Solicitor's Clerk [1957] 1 WLR 1219, 1222-3.

[28] Medical Board of Australia v Gerstman (Review and Regulation) [2025] VCAT 529, [129], citing Stirling v Legal Services Commissioner [2013] VSCA 374, [66]-[67].

[29] Stephens v The Queen [2022] HCA 31; (2022) 273 CLR 635, [34] (Keane, Gordon, Edelman and Gleeson JJ), [49] (Steward J).

[30] Minogue v Victoria (2018) 264 CLR 252, [24] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [9.630].

[32] Citing Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [9.630], with reference to Panochini v Jude [1999] QCA 444; [2000] 2 QD R 322, [13]-[15].

[33] [1973] VicRp 81; [1973] VR 819, 824.

[34] [1986] FCA 452; (1986) 72 ALR 23.

[35] Citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28; 289 FCR 72, [20]-[22] (Rares J); Federal Commissioner of Taxation v Salenger [1988] FCA 176; (1988) 19 FCR 378; 81 ALR 25, 34 (French CJ).

[36] Citing Hill v Zuda Pty Ltd [2022] HCA 21; 275 CLR 24, [25], with reference to Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [134]-[135]. To similar effect, see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485, [4].

[37] HPR Act sch 7 item 36; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ).

[38] [1998] HCA 28.

[40] [2004] HCA 12; 218 CLR 216.

[43] Explanatory Notes, Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) 55.