The Supreme Court held that although penalty privilege is not a substantive rule of law with inherent application outside curial proceedings, s 106 of the VCAT Act provides a statutory basis for its application in VCAT disciplinary proceedings under Part 8 of the Health Practitioner Regulation National Law. The Court further held that the scope of penalty privilege in this context requires that a respondent practitioner not be compelled to elect whether to go into evidence or serve material supporting a positive case before the Board has closed its case against them, preferring the approach in Towie over the narrower approach in Frugtniet. The abrogation of the privilege against self-incrimination in s 105 does not produce an absurd result when read alongside the preservation of penalty privilege under s 106, as the two privileges serve different functions in the disciplinary hearing context.
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