The Tribunal found Dr Kim engaged in professional misconduct, ordered a reprimand, cancelled his registration, imposed a two-year bar on applying for a reinstatement order under the new s 196(4)(aa), and prohibited him from providing any health service until re-registered — substantially less than the Board's sought eight-year disqualification. The Tribunal confirmed that amendments to the National Law taking effect after the hearing but before determination apply to pending proceedings, on the basis that Part 8 disciplinary proceedings are regulatory in character and not a curial adjudication of private rights (following Medical Board of Australia v Kemp [2018] VSCA 168 and Attorney-General (Q) v AIRC (2002) 213 CLR 485). In calibrating the disqualification period, the Tribunal held that the eight-year period sought by the Board would be impermissibly punitive given the practitioner's very low recidivism risk, six years and nine months already out of practice, conduct occurring outside a clinical setting, and the protracted criminal process partly attributable to the prosecution's earlier refusal of a guilty plea offer. The decision confirms that even where sexual offending is serious, the total period out of practice — including prior suspension — must be weighed against the gravity of the conduct to avoid disproportionality.
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