Disqualified person: The regulation does not define this term from scratch; it appears in new s 77A(1) as a person who cannot apply for registration unless a responsible tribunal has made a reinstatement order. The concept evidently picks up from existing National Law provisions on disqualification following cancellation of registration or other disciplinary outcomes. Section 77A(3) clarifies that the restriction continues even if the disqualification period has expired or conditions have been complied with. This means disqualification is not merely a time-bound bar; it creates an ongoing prohibition on reapplication until a tribunal affirmatively reinstates.

Reinstatement order: This appears in s 77A(1) and is also referenced in the note inserted after s 163B(5) in Schedule 1[5]: “Only the Tribunal may make a reinstatement order.” The concept is a formal tribunal decision that lifts the bar on a disqualified person applying for registration. The responsible tribunal is the tribunal for the participating jurisdiction where the original decision that resulted in disqualification was made (s 77A(2)). This centralises reinstatement authority in the original tribunal, preventing forum shopping.

Professional misconduct: The regulation shifts the definition. Formerly, Schedule 1[2] contained a bespoke NSW definition. That is omitted and replaced by a cross-reference to s 139E. Section 139E (not reproduced in this regulation but referenced) includes both single instances of serious conduct and multiple instances of unsatisfactory professional conduct that together amount to sufficiently serious conduct to justify suspension or cancellation. The note to new s 225A explicitly flags that s 139E(b) covers cumulative misconduct.

Sexual misconduct: This is the trigger for the new register notation obligations in ss 225A and 225B. It is not defined in these sections. Section 225A(1)(b) describes it as “sexual misconduct, whether occurring in connection with the practice of the practitioner’s profession or not.” This is deliberately broad: it covers private conduct unconnected to professional practice. The National Board may infer sexual misconduct from the tribunal’s decision and reasons even if the tribunal did not expressly state it (s 225A(3)). The notation is permanent (s 225A(8)) unless overturned on appeal or modified such that the decision no longer triggers the section, or if recording would contravene a court or tribunal order (s 225A(5)-(6)).

Additional information: Under s 225B, the information to be permanently recorded includes the date and name of the tribunal, a statement of the tribunal’s finding (professional misconduct, criminal finding rendering unfitness, or unsuitability), that the reasons included sexual misconduct, any sanction relating solely or partly to the sexual misconduct, and a copy or link to the published decision. If cancellation or no current registration, additional statements about disqualification, review periods, health service prohibitions, or conditions must also be recorded.

Non-disclosure agreement: Referenced in transitional s 329, which applies s 237B(1) to non-disclosure agreements entered into before or after commencement, and to health, conduct or performance issues occurring before or after commencement. Section 237B (not reproduced) presumably restricts the enforceability of NDAs that prevent disclosure of information about practitioner conduct.

Disqualified health practitioners: This is the primary new restriction. Under s 77A, any person who is disqualified (presumably following cancellation or other order) cannot even apply for registration without first obtaining a reinstatement order from the responsible tribunal. This affects practitioners who might have thought they could reapply after a disqualification period expired. Now they must go through a formal tribunal process even after the period ends. The practical effect is to increase time and cost barriers for re-entry.

National Boards: They must now proactively identify tribunal decisions that meet the criteria under s 225A(1) - that is, decisions made on or after the participation day where the tribunal found professional misconduct (or a criminal finding or unsuitability) and a basis was sexual misconduct. The Board must record the additional information in the registers. This is an ongoing administrative obligation. The Board may need to parse tribunal reasons to infer sexual misconduct even if not explicit (s 225A(3)). If the Board gets it wrong or fails to record, it faces potential judicial review or complaint. The Board must also monitor appeals to remove or stop recording the information.

Tribunals: The phrase “responsible tribunal” appears in s 77A(2) and s 225A(1)(a). The NSW Civil and Administrative Tribunal (NCAT) is likely the relevant tribunal for most NSW practitioners. It now has exclusive jurisdiction to make reinstatement orders for disqualified persons. The tribunal must also be aware that its decisions, if they involve sexual misconduct as a basis, will trigger permanent register notations, which may affect practitioners’ future employment and reputation.

Practitioners with existing sexual misconduct findings: Those whose tribunal decisions pre-date commencement of the relevant provisions will not be caught unless the transitional provisions apply? The regulation says s 225A applies to decisions made on or after the participation day. The participation day is defined elsewhere in the National Law. But for decisions already made, there is no retroactive notation. However, future decisions will be captured.

Patients and the public: The register notations increase transparency. A person checking a practitioner’s registration will see a statement that sexual misconduct was involved, including the sanction and a link to the decision. This may deter patients from consulting such practitioners or affect employability. The notation is permanent, so even a practitioner who has served a suspension and been reinstated carries the label indefinitely.

Employers: Hospitals, clinics, and other employers who must check practitioner registration will see the additional information. This may influence hiring decisions, especially for roles involving patient contact. Employers may also face pressure to avoid hiring practitioners with sexual misconduct notations, even if the practitioner is otherwise fit to practise.

Parties to non-disclosure agreements: Section 329 of new Part 16 makes s 237B(1) apply to NDAs entered into before commencement and to issues that occurred before commencement. This potentially overrides existing contractual confidentiality obligations. Any person who signed an NDA about a practitioner’s health, conduct or performance may now be free to disclose that information, or the NDA may be unenforceable. This affects former employers, insurers, and colleagues who agreed to keep silent.

Duty not to apply without reinstatement: Section 77A(1) states that a disqualified person “cannot apply for registration” unless a responsible tribunal has made a reinstatement order. This is an absolute prohibition. It does not say the application must be rejected; it says the person cannot apply. That suggests any application made without a prior reinstatement order is invalid or a nullity. The National Board should not accept such applications. Section 77A(3) reinforces that the duty continues even after disqualification period expires or conditions are met. The only way to lift the bar is a reinstatement order.

Duty on National Board to record additional information: Section 225A(4) says the National Board “must record the information … in the National Register or Specialists Register.” This is mandatory. The Board must also ensure the information remains permanently unless removed under s 225A(5) or (6). Section 226(1) and (2) apply to the requirement (s 225A(7)), meaning the Board can share that information with registered health practitioners? Not clear from this text, but s 226 likely deals with access to register information. Section 225A(9) says that s 225A and s 225B prevail over s 232(2) to the extent of inconsistency, so register accuracy obligations may be overridden by the duty to record.

Right to removal on appeal: Section 225A(5) gives a practitioner a right to have the additional information removed if the tribunal decision is stayed, overturned, or modified so it no longer triggers the section. This is conditional on success on appeal. The practitioner must initiate an appeal; the Board does not remove proactively. If the appeal is successful, the Board must remove the information.

Right to have information withheld if it contravenes court order: Section 225A(6) says if recording would contravene an order of a court or tribunal, the Board must not include or must remove the additional information to the extent of the contravention. This preserves the effect of suppression orders or other confidentiality orders made by a court or tribunal.

Right to apply for reinstatement order: Implicit in s 77A(1) is a right for a disqualified person to apply to the responsible tribunal for a reinstatement order. The regulation does not specify the criteria for granting such an order, but they would exist in the broader National Law (likely in Part 8, Division 8, which s 77A(3) says continues to apply). The practitioner must apply to the tribunal that made the original decision (s 77A(2)). This may be problematic if the practitioner has moved jurisdictions, but the provision prevents forum shopping.

Obligations regarding non-disclosure agreements: Section 329 makes s 237B(1) apply retrospectively. That section (not reproduced) likely restricts the enforceability of NDAs preventing disclosure of information about a practitioner’s health, conduct or performance. Persons who signed NDAs may now have a right to disclose, or the NDA may be void or unenforceable. The duty is on the parties to the NDA to comply with the law; there is no new duty on the Board.

The regulation itself does not create new penalty provisions. It amends the National Law, which contains its own penalty framework. However, several enforcement consequences follow from the duties imposed.

Applying without reinstatement: If a disqualified person applies for registration without a reinstatement order, the application is likely invalid. The National Board should reject it. If the Board accepts it and registers the person, the registration may be liable to cancellation on review. Depending on the wording of the National Law, making a false statement in an application (i.e., failing to disclose disqualification) could attract criminal penalties or disciplinary action.

Failure of National Board to record or maintain additional information: The duty under s 225A(4) is mandatory. Failure to record could expose the Board to judicial review (mandamus) to compel performance, or to a complaint by the affected practitioner if the notation is incorrect. There is no express pecuniary penalty in this regulation, but the National Law may have general enforcement provisions for non-compliance by a National Board.

Recording information that should not be recorded: If the Board includes the additional information when it should not (e.g., the decision did not involve sexual misconduct, or the appeal overturned the decision), the practitioner could seek orders for removal under s 225A(5)-(6). The practitioner could also sue for defamation, though the register is likely protected by qualified privilege. The regulation does not create a private right of action, but the common law may apply.

Non-disclosure agreements: Section 329 makes s 237B(1) apply retrospectively. That section presumably makes NDAs unenforceable or void to the extent they prevent disclosure about practitioner conduct. Any person who tries to enforce such an NDA may find it unenforceable. Conversely, a person who breaches an NDA may have a defence if the NDA is invalid. The enforcement is through the courts and contract law, not through the National Law’s regulatory penalties.

Tribunal orders: The new provisions do not change the tribunal’s existing powers to impose sanctions, conditions, or disqualification. The existing enforcement mechanisms for tribunal orders (e.g., failure to comply with conditions) apply.

Criminal offences: None are created by this regulation. The underlying National Law contains offences for practising without registration, providing false information, etc., but those are not amended here.

Enforcement bodies: The Health Care Complaints Commission, the National Boards, the Australian Health Practitioner Regulation Agency (AHPRA), and the Tribunal are the usual enforcement actors. The regulation does not create new enforcement powers.

Primary interaction with the National Law (NSW): This regulation operates as an amendment to the Health Practitioner Regulation National Law (NSW) as adopted by the Health Practitioner Regulation (Adoption of National Law) Act 2009. The new ss 77A, 225A, 225B, and Part 16 become part of that law. Section 225A(9) expressly provides that ss 225A and 225B prevail over s 232(2) to the extent of inconsistency. Section 232(2) likely deals with the accuracy or correction of register information. This means that the duty to permanently record sexual misconduct notations overrides any obligation to correct or remove information based on changed circumstances, subject only to appeal or court order.

Relationship with the Queensland Amendment Act: Sections 18, 19 and 20 of the Queensland Amendment Act are explicitly noted as not applied to NSW (see note before Part 2 of the regulation). This means NSW only adopts the provisions that the regulation specifies, and it modifies others. The transitional provisions in Queensland’s Part 16 are mostly not applicable to NSW except s 329. Practitioners should not assume that all Queensland amendments apply in NSW.

Interaction with contract law: Section 329 applies s 237B(1) to non-disclosure agreements entered into before or after commencement. This overrides private contractual rights to confidentiality. It restricts the enforceability of NDAs, potentially making them void or unenforceable. This is a significant interference with freedom of contract, justified by the policy aim of enabling disclosure of practitioner misconduct. The transitional provision applies even to agreements entered into before the regulation commenced, and to conduct that occurred before commencement. This may raise issues of retrospectivity and acquired rights under contract law, but the regulation purports to apply regardless.

Interaction with court and tribunal orders: Section 225A(6) respects orders of a court or tribunal that prohibit recording of information. This means suppression orders under the Civil and Administrative Tribunal Act or court orders for non-publication prevail over the duty to record. However, the Board must still assess whether recording would contravene an order. Suppression orders are usually temporary or limited in scope; the permanent notation may conflict with such orders.

Interaction with privacy and information laws: The National Registers are already public, but the additional information includes detailed statements of findings and links to decisions. This may intersect with privacy legislation (Privacy Act 1988 (Cth) or Privacy and Personal Information Protection Act 1998 (NSW)). However, the National Law typically overrides privacy principles for register purposes. The permanence of the notation (s 225A(8)) means it remains even if the practitioner later obtains a spent conviction or similar. The spent convictions framework may be overridden.

Interaction with anti-discrimination laws: The permanent notation may disadvantage practitioners in employment. An employer who refuses to hire someone based on the notation could face a discrimination claim if the conduct is unrelated to the job, but the notation is about sexual misconduct which may be directly relevant to patient-facing roles. The regulation does not create any protection against such discrimination.

Interaction with reinstatement provisions: Section 77A(3) says Part 8, Division 8 (which deals with reinstatement) continues to apply. This means the procedural criteria for reinstatement orders remain, but s 77A adds a threshold bar: no application without a reinstatement order. This may be more restrictive than the previous law where a disqualified person could apply for registration after the disqualification period ended, and the Board would consider it. Now the tribunal must first reinstate.

This regulation is itself the amending instrument. It does not have its own amendment history; it is the current law. However, it amends the Health Practitioner Regulation (Adoption of National Law) Act 2009, which has been amended several times since 2009. The key prior amendment relevant here is the pre-existing substitution of NSW provisions, including Schedule 1 definitions. This regulation replaces several of those substitutions.

Specifically, Schedule 1 of this regulation amends the Schedule of the Adoption Act. It omits item [2] (definition of professional misconduct) and inserts a cross-reference to s 139E. It inserts new item [8A] (s 77A) after item [8]. It omits item [15] (s 149E) entirely. It modifies item [15] (s 163B) by omitting subsection (3) and adding a note. It inserts new item [16B] after [16A] (sections 225A and 225B). It inserts new item [24AB] after [24AA] (Part 15 and Part 16, but most of Part 16 is not applicable to NSW).

The regulation’s own commencement is staggered. This means the timeline of when each amendment takes effect depends on when the corresponding Queensland Amendment Act sections commence. Section 2 of the regulation lists five different commencement triggers. This creates complexity: a practitioner cannot simply assume all provisions are in force from the publication date. For example, the amendment applying s 16 of the Queensland Amendment Act (Schedule 1[4][5]) commences when s 16 of the Queensland Amendment Act commences. That is a future unknown date. Similarly, the new s 77A (Schedule 1[2][3]) commences when s 17 of the Queensland Amendment Act commences. The transitional provision s 329 (Schedule 1[7]) commences when s 23 of the Queensland Amendment Act commences. The “otherwise” category (the regulation generally) commences on publication on the NSW legislation website. So some parts may be in force now, others later.

This staggered commencement is unusual and creates uncertainty. Legal practitioners must monitor the Queensland Act’s commencement dates to know whether the NSW regulation is fully operative. The regulation itself does not provide a single date.

As a 2025 regulation, there is no litigation history construing its specific provisions. However, several areas are ripe for challenge.

Definition of sexual misconduct: The regulation does not define sexual misconduct. This is likely to be litigated. Practitioners may argue that the conduct found by the tribunal does not meet the ordinary meaning of sexual misconduct, especially if the tribunal did not use that term. The Board’s power to infer sexual misconduct from reasons (s 225A(3)) will be contested. The line between professional misconduct that has a sexual element and “sexual misconduct” as a separate category may be blurred. The note to s 225A refers to s 139E, but that section deals with professional misconduct generally. Cases may arise where the tribunal found unsatisfactory professional conduct of a sexual nature that, when accumulated, constitutes professional misconduct; the Board may then record it as sexual misconduct.

Retrospective application of s 329: The transitional provision applies s 237B(1) to NDAs entered into before commencement and to conduct that occurred before commencement. This may be challenged as an unconstitutional interference with vested contractual rights. The common law presumption against retrospectivity may apply, and courts may read down the provision or require clear language. The regulation’s language is clear, but litigation is possible.

Permanent notation: A practitioner whose registration is cancelled due to sexual misconduct and who later obtains reinstatement may argue that the permanent notation on the register violates procedural fairness or natural justice. The notation remains even if the practitioner is fully rehabilitated and re-registered. The provision may be challenged as disproportionate or as infringing the right to work. However, Australian courts generally uphold public registers as in the public interest.

Application of s 77A after disqualification period expires: Section 77A(3) applies the restriction even after the disqualification period expires. A practitioner whose registration was cancelled with a five-year disqualification period may think they can apply after five years, but now they cannot apply without a reinstatement order. This changes the legal position from before the regulation. A practitioner who had already served their disqualification period before the new law commenced might argue the new restriction does not apply to them because it is not retrospective. The regulation does not have a transitional provision for that; it only applies s 77A from its commencement. If the disqualification period ended before commencement, arguably s 77A applies at the time of application post-commencement, creating a new bar. This could be litigated.

Constitutional issues: The regulation is made under NSW law. The National Law is applied in each state and territory. The interaction between NSW’s adoption of Queensland amendments and the cooperative scheme may raise intergovernmental issues, but likely no constitutional invalidity.

Permanent notation cannot be removed except on appeal or court order: Section 225A(8) states the additional information “must remain on the National Register or Specialists Register permanently, unless otherwise authorised to be removed by this Law.” The only removal mechanisms are appeal overturning the decision (s 225A(5)) or contravention of a court/tribunal order (s 225A(6)). There is no provision for removal after a period of good behaviour, rehabilitation, or change in circumstances. This is a permanent scarlet letter.

Inference of sexual misconduct: Section 225A(3) allows the National Board to be satisfied that sexual misconduct was a basis for the tribunal’s decision “by necessary inference, taking into account the tribunal’s decision and the reasons for the decision” and “regardless of whether or not the tribunal’s reasons expressly provide that sexual misconduct was a basis.” This means a practitioner could have a tribunal decision that does not mention sexual misconduct at all, yet the Board could infer it from the facts. This is a low evidentiary threshold and may be applied inconsistently.

Section 77A bars application even after disqualification period ends: Section 77A(3)(a) makes this explicit. A practitioner who was disqualified for 10 years, and has waited 10 years, cannot simply apply. They must first get a reinstatement order. The reinstatement order process may be costly, time-consuming, and discretionary. There is no guarantee the tribunal will grant it.

Section 77A applies retroactively to existing disqualified persons?: The provision commences on the date s 17 of the Queensland Amendment Act commences. Any person who is a disqualified person on that date is immediately caught. If they were planning to apply for registration after their disqualification period expired, they now cannot without a reinstatement order. This changes the legal landscape for existing disqualified persons.

Non-disclosure agreements may be unenforceable retroactively: Section 329 of new Part 16 applies s 237B(1) to NDAs entered into before commencement and to issues occurring before commencement. This means a pre-existing NDA signed years ago between an employer and a practitioner may now be void or unenforceable. Practitioners who relied on such NDAs may find themselves exposed to disclosure. Conversely, employers who signed NDAs may be unable to enforce them if a whistleblower discloses.

The definition of professional misconduct now cross-references s 139E: This changes the NSW definition from a bespoke one to the general National Law definition. Section 139E includes both single acts and cumulative conduct (multiple instances of unsatisfactory professional conduct that together are serious). This broadens the scope for what constitutes professional misconduct in NSW, potentially capturing conduct that would not have qualified under the previous definition. Note the note to s 225A explicitly mentions s 139E(b) in this context.

Not all Queensland amendments apply: Sections 18, 19, and 20 of the Queensland Amendment Act are expressly not applied. This means practitioners cannot rely on the Queensland version of the National Law for those sections. They must check the NSW-specific modifications. This adds complexity for practitioners moving between jurisdictions.

Staggered commencement: As noted, different provisions commence at different times tied to the Queensland Amendment Act’s commencement. A practitioner may assume the entire regulation is in force when published, but parts may not be. For example, the new s 77A may come into force later than the new s 225A. This creates a patchwork of operative provisions.

Transitional provision only applies one section of Part 16: Part 16 (as inserted by Schedule 1[7]) contains three sections: 327, 328, and 329. Sections 327 and 328 have notes saying “This section is not applicable to New South Wales.” Only s 329 applies. A reader skimming might think all of Part 16 applies, but only s 329 does. Section 329 itself applies s 237B(1) to NDAs and prior issues. The content of s 237B is not in this regulation; it is presumably in the National Law. Practitioners must find that separately.

Register override of accuracy provisions: Section 225A(9) makes ss 225A and 225B prevail over s 232(2). Section 232(2) likely requires the Board to ensure the register is accurate and up-to-date. The permanent notation duty overrides that, meaning even if the information becomes stale or misleading, it stays. For example, if the practitioner completes a rehabilitation program and has no further issues, the notation remains and cannot be removed as “inaccurate” because it was accurate at the time.

For National Boards and AHPRA: The most significant compliance burden falls on the Boards. They must develop processes to identify tribunal decisions that meet the s 225A criteria. This requires monitoring all tribunal decisions involving health practitioners under their profession, analysing reasons for decisions to determine if sexual misconduct was a basis (expressly or by inference), and then recording the additional information specified in s 225B. The information must be recorded permanently. If an appeal is lodged, the Board should not record until the appeal is resolved, or if already recorded, must remove if the decision is overturned or modified. The Board must also ensure that recording does not contravene a court or tribunal order; therefore, it should check for suppression orders before recording. If a suppression order exists, the Board should seek clarification or exclude the information to the extent of the order.

For disqualified practitioners: Any person who is currently disqualified or becomes disqualified after commencement must not apply for registration without a reinstatement order. Even if the disqualification period has expired, the practitioner must first apply to the responsible tribunal (the tribunal that made the original decision) for a reinstatement order. This requires engaging legal representation, filing an application, participating in a hearing, and meeting the criteria for reinstatement under Part 8 Division 8 of the National Law. The practitioner should not assume that compliance with the disqualification conditions or passage of time is sufficient. They must obtain the order first.

For practitioners subject to a tribunal decision involving sexual misconduct: If a tribunal decision falls within s 225A, the practitioner cannot prevent the notation. The only avenue is to appeal the decision or argue that the Board’s inference is wrong. If the appeal is successful, the notation must be removed. If the practitioner believes recording would contravene a court order (e.g., a non-publication order), they should notify the Board urgently with evidence of the order. The practitioner should also consider seeking a suppression order from the tribunal if possible before the Board records.

For parties to non-disclosure agreements: Anyone who has signed an NDA regarding a health practitioner’s health, conduct or performance should review the agreement in light of s 329 and s 237B. The NDA may be unenforceable to the extent it prevents disclosure of information about practitioner misconduct. If a person wishes to disclose such information, they should check whether s 237B(1) provides a defence or renders the NDA void. Conversely, if a person wants to enforce an NDA, they may find it unenforceable. Legal advice is advisable given retrospective application.

For employers and patients: Employers should ensure they check the National Register for the additional information when hiring or contracting practitioners. The notation is permanent and will be visible. Patients can also access this information, but should be aware that notation does not necessarily mean the practitioner is currently banned; they may still be registered with conditions. Employers should also review their own NDAs with practitioners to ensure they are compliant; if they have entered into NDAs that might conceal misconduct, those NDAs may be invalid.

For legal practitioners: Those advising health practitioners must stay abreast of the staggered commencement dates. They should monitor the Queensland Amendment Act’s commencement to know when each part of the regulation is in force. They should advise disqualified clients of the new bar and the need for a reinstatement order. They should also advise clients about the permanent notation risk; any settlement or consent decision involving sexual misconduct allegations will likely trigger the notation. The permanent nature of the notation means practitioners should fight allegations strongly if they want to avoid a lifelong stigma.

General procedural compliance: The regulation does not require additional reporting or forms. Compliance is largely about not taking prohibited steps and about the Board performing its recording duties. The transitional provisions require no action from practitioners except changing behaviour. However, the retrospective application to NDAs may require parties to reassess existing contracts.