Regulatory Investigations: A Criminal Defence Lawyer’s Perspective
Sophie is a Partner, In-House Counsel, and an Accredited Criminal Law Specialist at Doogue + George. She specialises in serious indictable criminal matters and has appeared before investigative bodies such as Royal Commission, IBAC and VCAT.
Amelia is a Partner based in our city office. Apart from her strong practice in assisting clients charged with indictable offences, Amelia also often represents clients in matters related to AHPRA and VIT Registrations, Working With Children Checks, firearms licences, and more.
Criminal defence lawyers can play an important role in regulatory investigations undertaken by the Australian Health Practitioners Regulatory Agency (AHPRA) and Victorian Institute of Teaching (VIT).
In our experience, advice from a criminal defence lawyer is invaluable if criminal charges have already been laid by police and the charges impact a person’s registration with a regulatory authority, or if an investigation undertaken by AHPRA and VIT could be referred to police and result in criminal charges.
Advice from a criminal defence lawyer will assist a person in a number of ways:
- responding with persuasive submissions in support of continued registration in a range of circumstances;
- informing the person concerned as to the likely possibility of criminal charges;
- preparing an effective case strategy and legal defence;
- obtaining material in support of a favourable outcome in both the regulatory investigation and criminal proceedings.
Purpose and Function of Regulatory Authorities
The overriding duty of regulatory authorities such as AHPRA and VIT is to protect the interests and safety of the community by maintaining high standards of education, health services and professionals.
The authorities are primarily responsible for ensuring the safety of the community that access health services and are part of our education community including students under the age of 18 and small children attending early learning centres. The authorities must protect the community from incompetence and harmful behaviours or risk of harmful behaviours. The focus of the authorities is on the individuals accessing health services and being cared for and supervised by qualified teaching staff and the reputation of health and education services.
The relevant legislation contains registration, eligibility, and disclosure requirements and also penalties for failing to comply, in addition to powers to undertake investigations into complaints and conduct as well as those charged with criminal offences.
The clear legislative requirements are designed to advance the purpose and function of the authorities.
- AHPRA – Health Practitioner Regulation National Law (Victoria) Act 2009
- VIT – Education and Training Reform Act 2006
Australia Health Practitioners Regulatory Agency (AHPRA)
AHPRA’s role is to protect the public by ensuring registered health practitioners are suitably trained and qualified to practice competently and ethically. There are relevant suitability requirements that must be met by health practitioners at all times of practice.
Criminal offences do not need to be directly connected to a health practitioner’s work to potentially have a bearing on their fitness and suitability to practice. If a matter is sufficiently serious, the National Board may take interim action against a practitioner’s registration until the criminal matter has been determined.
AHPRA Disclosure Requirements
Most relevantly, health practitioners are required to inform the National Board within 7 days if they are charged with an offence punishable by 12 months’ imprisonment or more, or convicted and found guilty of an offence punishable by imprisonment in Australia and/or overseas. A failure to comply with this reporting requirement may result in conduct or performance action being taken by the National Board (see section 130 of the Health Practitioner Regulation National Law Act 2009). Health practitioners are also required to disclose any changes to their criminal history when they are making an application to renew their registration.
AHPRA shares a memorandum of understanding with Victoria Police that allows for the exchange of information to assist each party to perform their statutory functions.
Victorian Institute of Teaching (VIT)
VIT is responsible for assessing whether those who have applied for registration and those who currently hold registration are suitable to teach. This is done by ensuring the applicant is a person whose character, reputation and conduct are such that they should be allowed to teach in a school or early childhood service, and that they do not have a physical or mental impairment (if any) that seriously detrimentally affects or is likely to seriously detrimentally affect their ability to practice as a teacher.
The suitability assessments are categorised depending on the nature and seriousness of the criminal charge and the stage and final outcome of the criminal proceedings.
The categories are broad and reflect a range of situations. Category A is the most serious category and includes the most serious criminal offences. Category B covers a more extensive range of criminal offences and provides for the opportunity to make submissions. Category C includes any disciplinary action that has been taken and circumstances where a person has been charged by police and the charges have been struck out or the person has been found not guilty, and also provides for the opportunity to make submissions.
VIT Disclosure Requirements
Teachers are required to disclose any matters that may impact on their suitability to teach when they make an application for registration and as part of the annual registration process in certain circumstances, including if they are:
- charged with a criminal offence;
- subject to a disciplinary investigation or disciplinary action that has been taken against the person (such as receiving a written warning from their employer);
- subject of a finding of reportable conduct by The Commissioner for Children and Young People (CCYP);
- served with a Working with Children (WWC) interim exclusion or WWC exclusion (formerly known as an interim negative notice or negative notice) from Working with Children Check Victoria (WWCCV); and/or
- suffering from a physical or mental impairment that seriously detrimentally affects their ability to practice as a teacher.
Teachers are required to notify VIT within 30 days if they are committed for trial or have been convicted or found guilty of a sexual or other indictable offence. If teachers fail to comply with this notification requirement, they may be charged with a criminal offence (see section 54 of the Victorian Institute of Teaching Act 2001) or at risk of being deemed of failing to meet registration requirements.
Case strategy is always unique to specific cases. However, there are some considerations that will assist in developing an effective approach to cases involving regulatory investigations.
If a person is already subject to an investigation by an employer or regulatory authority and has not yet been charged by police, the investigation may serve as a useful fact-finding exercise. Investigations can provide an additional degree of insight and understanding of the criminal allegations in circumstances where criminal defence lawyers are not usually privy to such early disclosure. This in turn provides an opportunity to make decisions about case strategy, direction, and prospects at an early stage. It may also assist in assessing the likelihood of the person’s prospects of retaining registration now or into the future.
However, as criminal defence lawyers, we are always mindful of a person’s fundamental rights in the criminal justice system and conscious of possible consequences. There is generally a point where it becomes better for the regulatory investigation to proceed without the involvement and cooperation of a person that is at risk of being charged or has been charged with a criminal offence, so as to preserve fundamental rights and prospects of a legal defence. A person’s involvement in an investigation may serve to inadvertently assist the prosecution case against them, or amount to an admission that becomes difficult to exclude later in a criminal proceeding if the person chooses to plead not guilty.
Considerations and Consequences
Regulatory authorities tend to act quickly in response to any conduct that places the purpose and function of the regulatory authority at risk in anyway, and ultimately, in a way that is severely detrimental to the individual who has been charged or is at risk of being charged by police.
Depending on the nature of the allegation, in some cases the consequences that flow from the immediate investigation may be more severe than the possible penalty.
If a person falls short of the high standards in some way, there are immediate personal and professional consequences including impact on employment and income, health, and reputation, in addition to unwanted media attention and future employability. And all of this occurs before a finding of guilt or conviction for a criminal offence, or sometimes before a person has even been charged by police.
If that person is then charged and sentenced in relation to criminal offences, the penalties may include convictions for offences that can impact future employability, travel, insurance, ability to start a business, family circumstances, a range of sentences including prison and loss of liberty, and involve other investigations, registrations, and qualifications.
Challenge to Fundamental Principles of Justice
Deciding whether to engage in a regulatory investigation and respond to notices in circumstances where the alleged conduct may result in criminal charges challenges fundamental principles of criminal justice:
- a person is presumed innocent until proven guilty;
- a person’s guilt must be proved beyond reasonable doubt;
- no person can be required to incriminate himself or herself (‘the right to silence’); and
- punishment must be proportionate to the crime
Many of these rights are included in the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) including the right to a ‘fair’ and public hearing and right to have adequate time and facilities to prepare a defence.
The extent to which the principles are challenged is a matter of degree depending on the seriousness of the allegations and action a regulatory authority may take against an individual before criminal matters are finalised. The conflict between the two processes is akin to the intersection between civil proceedings and criminal law cases, particularly given the broad powers afforded to the regulatory authorities. The conflict gives rise to issues as to what proceeding should precede the other and whether the criminal hearing will be undermined or made unfair in some way by a preceding investigation or proceeding. It is often advantageous to remind the regulatory authorities of these important principles and notions of fairness when addressing allegations and disciplinary proceedings in submissions.
Consult Criminal Defence Lawyers at an Early Stage
People in regulated professions are subject to regulatory oversight that holds them to a higher standard than an ordinary person in employment in the community.
Criminal defence advice is crucial if there has been some kind of allegation that a person has fallen short of that standard in some way that has or may result in criminal charges, and will be most usefully obtained at an early stage.
Date Published: 28 June 2023