When will disciplinary action constitute a ‘punishment’?

Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036 (14 June 2011)

Summary

The Victorian Civil and Administrative Tribunal (VCAT) has held that deregistering a practitioner for unprofessional conduct under the Health Professions Registration Act 2005 (Vic) is not punishment and therefore does not infringe the right to freedom from double punishment under s 26 of the Victorian Charter.

Facts

Ms Ildiri was a registered psychologist. Between 2003 and 2007 Ms Ildiri lodged false invoices with the Victims of Crime Assistance Tribunal for counseling sessions that did not take place. Ms Ildiri was found guilty by the Magistrates’ Court of a number of fraud charges. In May 2009 Ms Ildiri was sentenced to 9 months’ jail and ordered to pay $51,675.90 in compensation.

The Psychology Board of Australia applied to VCAT for a finding of unprofessional conduct and to have Ms Ildiri’s registration cancelled on this basis.

Decision

The Tribunal found that Ms Ildiri had engaged in unprofessional conduct and that this conduct warranted cancellation of her registration as a psychologist.

Counsel for Ms Ildiri argued that s 26 of the Charter, which provides that a “person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law”, prevented the Tribunal from imposing a penalty for unprofessional conduct because to do so would amount to double punishment in light of Ms Ildiri’s prior fraud convictions. Counsel further argued that s 38 of the Charter, which requires public authorities to consider Charter rights in making decisions, required the Tribunal to choose the least punitive of the range of penalty options available to it to act compatibly with s 26.

The Tribunal rejected these arguments as “misconceived”. It cited authority that the primary purpose of disciplinary proceedings is not to punish a practitioner but rather to protect the public and the reputation of the practitioner’s profession. On this basis the Tribunal found that a penalty issued under the Health Professions Regulation Act 2005 (Vic) was not punitive and that as such “the Charter’s protection against being ‘punished’ twice for the same offence is not engaged”.

Relevance to the Victorian Charter

The finding that s 26 of the Charter will be relevant only when the purpose of a penalty is punitive is consistent with the Tribunal’s decision in Swain v Department of Infrastructure (General) [2008] VCAT 848, in which it was held that a government authority’s refusal to issue a commercial driver’s licence to a person because of their history of insurance fraud was not punitive, and therefore did not constitute double punishment.

This case does not clarify whether the prohibition on double punishment in s 26 is limited to criminal punishment, as is the case in the analogous provisions to s 26 in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, or whether s 26 will also apply to non-criminal penalties applied for a punitive purpose. Moreover, this case does not clarify whether punishment needs to be the sole or dominant purpose of a penalty in order to raise the protection of s 26.

The decision is at http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1036.html.

Michael Griffith is on secondment with the Human Rights Law Centre from Mallesons Stephen Jaques.