That a relevant Tribunal cannot rule on matters prior to a paramedic’s registration was the conclusion of the Supreme Court of South Australia in Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith [2025] SASCA 25 (20 March 2025) (Livesey P; S Doyle and Bleby JJ).  In this case two matters came before the court to be heard together.

The Paramedicine Board alleged that Mr Jackson was guilty of ‘professional misconduct’. At [7] the Court said:

… it was alleged that Mr Jackson failed to advise the Board that, after making his application for registration but before being granted registration, he had been suspended from duty by his employer and charged with five criminal offences. This failure was said to be contrary to the Code of Conduct for Paramedics and s 130 of the National Law.

The matter was referred to the South Australian Civil and Administrative Tribunal that ruled it did not have jurisdiction to deal with allegations that occurred prior to Mr Jackson’s registration.  Mr Jackson appealed.

The case of Physiotherapy Board of Australia v Smith raised similar issues. In that case the Tribunal referred the question of whether it could deal with issues before Mr Smith’s registration to the Court for a decision on the state of the law.  The two cases were heard together.

The Court of Appeal held that the power of a Board to refer a person to the Tribunal and the power of the Tribunal to determine if they are guilty of professional misconduct only applies to conduct that occurred after they had been registered.  There is power, specifically provided in the legislation to deal with allegations against people who were registered but who are no longer registered, so a person cannot avoid the consequences of their actions by letting their registration lapse or surrendering their registration ([66]).  But the conduct must have occurred whilst they were registered.

The Boards argued that if they could not refer such matters there would be a risk that a person would be registered and then their pre-registration conduct would come to light, but they could not have their registration revoked. The court at [76]-[77] said:

We do not share this concern. In our view, 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. For example, under s 55(1) (in the case of an application for general registration), a National Board may decide that a person is not a suitable person to be registered as a practitioner for various reasons. These reasons may include that the person is not an appropriate person to practise the profession or that it is not in the public interest for the person to practise the profession (s 55(1)(b)), or that the person is not a fit and proper person for registration (s 55(1)(h)). Under s 82, the National Board is then given power to refuse registration, but only after giving the applicant notice and an opportunity to make submissions through the mechanism provided in s 81.

Properly understood, it appears that the registration and renewal processes provided for in the National Law are appropriate mechanisms for addressing conduct or behaviour which occurred when the person was not registered. And to the extent that conduct or behaviour is not disclosed during this process, it may be addressed through a referral under s 193(1)(a)(ii) on the basis that registration was improperly obtained through the provision of false or misleading information…

But see now s 193(3) and ss 85A to 85E which were not in force at the time but since May 2023 allow a Board, rather than a Tribunal, to withdraw a person’s registration where it was obtained using ‘information or a document that was false or misleading in a material particular’ which would include failing to disclose relevant criminal history. 

Conclusion

A Board when considering a person’s application for registration can determine if they are a fit and proper person for registration considering their pre-registration conduct.  The applicant is under an obligation, in their application, to report their criminal history in accordance with their Board’s Criminal History standard (and for paramedics see Criminal history registration standard (17 May 2018)). 

Where the person’s pre-registration conduct affects their suitability for registration it is a matter for the Board to determine.  The matter cannot be referred to a Tribunal and the relevant Tribunal does not have jurisdiction to determine if pre-registration conduct amounts to professional misconduct under the Health Practitioner National Law.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.