Exercising Jurisdiction

     In a March 20, 2025 decision, the Supreme Court of South Australia Court of Appeal considered appeals initiated by the Paramedicine Board of Australia (Paramedicine Board) and the Physiotherapy Board of Australia (Physiotherapy Board) seeking clarification of jurisdiction of the Tribunal in matters relating to 1) conduct occurring prior to registration and 2) whether conduct had to occur while being registered in order to take disciplinary action.

As background, the Paramedicine Board initiated proceedings against Mr. Jackson (Jackson).  The Paramedicine Board referred the matter to the Tribunal to consider that Jackson had failed to inform the Paramedicine Board of his suspension of employment and five (5) criminal charges, as well as false representation on his application.  Upon consideration, the primary judge determined that the Tribunal did not have jurisdiction under s 193(1) of the National Law to consider conduct that occurred prior to registration.  Similarly, the Physiotherapy Board commenced an action against Mr. Smith (Smith) regarding conduct prior to registration and that occurred while his registration was lapsed resulting in a similar disposition.

Both Boards appealed.  The appeals are focused on whether limitations exist for referrals to the Tribunal under s 193, including determination of any limitation to jurisdiction and whether the conduct occurred before registration.  The Supreme Court considered these two temporal limitations.  First, this Court determined that whether a person is registered at the time of the referral under s 193 and s 196 is not a limitation for the referral.  Relying upon contextual, textual and other indicators, the Court pointed to s 196(4) that provides authority to the Tribunal to disqualify a person from applying or providing a health service, indicating a “clear recognition that the Tribunal’s jurisdiction extends to granting relief against people not holding registration.” Thus, the initial determination inappropriately narrowed the scope of the law, limiting the ability to protect the public.

Next, the Court considered the second “temporal limitation” with respect to whether the behavior had to occur while being registered.  With this issue, the primary judge’s interpretation of s 193 was accurate in that the authority is only to address the conduct while registered.  While the Boards argued that this limited the ability to protect the public, the Court was unpersuaded as there is another mechanism to address behavior that occurred prior to registration.  Specifically, the National Law provides that any conduct that occurred outside of being registered may be addressed as part of the registration and renewal process.  Only issues arising after registration may be considered, even if an expired registration.

Jackson proceedings, appeal allowed to only consider conduct after registration.

Smith proceedings, no jurisdiction given it occurred prior to registration.