I have previously reported on the decision in Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith [2025] SASCA 25 (20 March 2025) (see Relevant Tribunal cannot rule on matters prior to a paramedic’s registration (March 31, 2025)).

In those cases, the Supreme Court of South Australia 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.’  The time of registration was the appropriate time to assess whether a person’s pre-registration conduct affected the assessment of whether they are fit and proper for registration. If that conduct did not come to light at that time there may be action if they lied on their registration or if later, they were charged with a criminal offence with respect that pre-registration conduct.  In making its decision, the Court agreed that the relevant law was the law at the date the practitioners were referred to the relevant tribunal, that is March 2022 (Smith) and February 2023 (Jackson).

The Health Practitioner Regulation National Law was amended on 15 May 2023. The amended s 138(1) now says:

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) …

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

In Psychology Board of Australia v Barber [2026] VCAT 208 (26 March 2026) the Victorian Civil and Administrative Tribunal (VCAT) had to consider the impact of the amendments when deciding whether it had jurisdiction to determine a complaint about Mr Barber’s conduct before he was registered as a psychologist.  The admitted conduct was that ‘in or around the period from November 2011 to early 2012, the respondent engaged in an inappropriate relationship, as well as sexual activity, with a child under the age of 16 years’ ([3]).  This occurred prior to his registration in 2019.  At the time of his registration the law was the in the same terms as the law considered in Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith that is before the 2023 amendments, above. The Psychology Board became aware of the conduct in 2021 and commenced an investigation. On 14 March 2023 they determined to refer the matter to VCAT. The respondents argued that the decision in Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith meant that VCAT did not have jurisdiction to hear the complaint.  The Tribunal disagreed.

Justice Woodward said (at [6]):

… I am bound to follow the decision in Jackson & Smith because the Full Court is not plainly wrong. But, in my judgment, the proper construction of s 138 as introduced by the May 2023 amendments precludes any application of the Full Court’s analysis in any referrals brought after the introduction of those amendments.

And at [76]

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.

And finally, at [97]

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.

Conclusion

For registered health practitioners, including paramedics, the 2023 changes to the Health Practitioner Regulation National Law mean that skeletons in your closet may still come out to haunt you.

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.