Agent-General and Commissioners for Victoria Act 2007

Agent-General for Victoria. Defined in section 3 as the person appointed under section 4(1) to represent Victoria in the United Kingdom and any other post territory the Minister directs. The Act treats the Agent-General as a Commissioner for all purposes without a separate appointment (section 4(4)). The function is rooted in history: the Victorian Agent-General in London has existed since the 19th century. The Act continues that role.

Commissioner for Victoria. A person appointed under section 4(2) by the Governor in Council to represent Victoria in a post territory. A Commissioner may be appointed on a full-time or part-time basis (section 4(3)). The Act does not limit the number of Commissioners who may be appointed, nor does it require them to be based in the post territory. The term is specified in the instrument of appointment, not exceeding five years, with eligibility for reappointment (section 5(1)). The Act does not require any particular qualifications, experience, or residence.

Post territory. Defined in section 3 as “a country in respect of which the Agent-General or Commissioner is required by or under this Act to perform functions and carry out duties”. The Minister determines the post territory for each Commissioner through written directions under section 11(1)(a). The Act contemplates that a Commissioner may have only one post territory, but does not explicitly prohibit a Commissioner from covering multiple territories if the Minister so directs.

Functions and duties. The Agent-General’s function under section 9(1) is to represent Victoria in the United Kingdom and any other directed post territory for the purpose of furthering commercial, economic, cultural, scientific and technological relations. A Commissioner’s function under section 9(2) is the same but limited to the post territory as directed. The duties enumerated in section 9(3) are: promoting economic performance to financial institutions and investors; promoting investment and tourism; fostering trade; expanding markets for Victorian goods and services; facilitating migration of business-skilled people; doing anything else conducive to developing the Victorian economy; assisting in promoting cultural, sporting and major events; assisting in co-ordinating intergovernmental relations; fostering friendly relations; and performing any other duty conferred by the Minister. This list is cumulative and open-ended, particularly via sections 9(3)(f) and (j).

Ministerial directions. Section 11 gives the Minister a very wide power to direct a Commissioner in writing on any post territory and on the performance of functions or duties. Directions must be published in the Government Gazette as soon as practicable. They are binding: non-compliance is a ground for removal under section 7(e). There is no statutory limit on the subject matter of directions. The Minister may also require a Commissioner to prepare and deliver a report on performance or on any specified matters (section 11(3)).

Annual report. Each Commissioner must submit a report to the Minister by 31 August each year on performance for the year ending 30 June (section 10(1)). The report is not published independently; the Minister must cause it to be consolidated in the relevant annual report of operations of the Department of State Development, Business and Innovation (as at 2013). This means public access to an individual Commissioner’s performance is indirect and aggregated within a larger departmental document.

Cessation of office. A Commissioner ceases to hold office if they become an insolvent under administration or are convicted of an indictable offence (section 5(4)). Additionally, the Governor in Council may suspend or remove a Commissioner under section 7 for misbehaviour, breach of a code of conduct under section 63 of the Public Administration Act 2004, incapacity, refusal/neglect/failure to carry out duties, or failure to comply with a ministerial direction. The Act does not provide for a hearing, appeal, or review before removal. An acting Commissioner may be appointed during a vacancy or when a Commissioner is absent or unable to carry out duties (section 8).

The Agent-General and Commissioners. The Act directly governs a small number of individuals - likely fewer than ten at any time - appointed by the Governor in Council. They are subject to ministerial control, annual reporting requirements, and potential removal without statutory procedural safeguards. Their remuneration and terms are at the Minister’s discretion, subject to the five-year maximum term per appointment.

The Minister responsible (currently the Minister for Trade or similar portfolio). The Minister gains significant discretionary powers: to set terms and conditions, give binding directions, require reports, and (through the Governor in Council) appoint and remove Commissioners. The Minister also has delegation power to the Secretary.

The Department. The Department of State Development, Business and Innovation (now Department of Jobs, Skills, Industry and Regions or equivalent) is affected through its Secretary, who approves staff appointments by Commissioners and may delegate that power. The Department must consolidate the annual reports into its own annual report. Section 13 allows the Minister to delegate powers to the Secretary, meaning departmental staff may effectively exercise ministerial functions under the Act.

Staff employed under section 12. Employees may be appointed under Part 3 of the Public Administration Act 2004 for the purposes of the Act, or directly by a Commissioner with the Secretary’s approval. These staff are affected by the terms and conditions fixed by the Secretary. No staff numbers are specified in the Act.

Australian and Victorian taxpayers. Citizens and businesses fund the offices through consolidated revenue. There is no statutory requirement for the Minister to evaluate the return on investment or to benchmark the offices against private sector alternatives. The economic benefits are assumed rather than measured in the Act.

Businesses and investors in Victoria and post territories. These groups are the indirect targets of the Commissioners’ promotional activities. They may benefit from trade facilitation, investment introductions, and market access support. However, they have no statutory right to receive services or information from a Commissioner. The Act does not create any enforceable rights for third parties. Competitive neutrality issues could arise if a Commissioner’s activities overlap with services offered by private trade promotion firms.

Intergovernmental relations. The Act affects other Australian states and territories insofar as Victoria’s overseas representation may compete with or complement their own offices. The Act also affects host countries where Commissioners are posted, though it imposes no obligations on foreign governments.

Duties of a Commissioner. The core duty, under section 9(3), is to perform the ten listed activities in the relevant post territory. These are not merely aspirational; they are statutory duties. The duty to “do anything else … that is conducive to the development of the Victorian economy” under section 9(3)(f) is remarkably broad and gives the office holder wide discretion subject to ministerial direction. The duty to “perform any other duty conferred by the Minister” under section 9(3)(j) effectively makes the Commissioner an agent of the Minister for any additional task. A Commissioner must also comply with ministerial directions under section 11; failure to do so is a ground for removal. There is a duty to submit an annual report under section 10, and a duty to provide additional reports if the Minister requires them under section 11(3).

Duty of the Minister. The Minister must publish written directions in the Government Gazette (section 11(2)). The Minister must cause annual reports to be consolidated into the department’s annual report (section 10(2)). The Minister also must fix remuneration and terms and conditions under section 5(2). No other mandatory duties are imposed on the Minister by the Act. Notably, the Act does not require the Minister to issue any directions at all, nor to set performance targets, nor to report to Parliament on the effectiveness of the offices.

Rights of a Commissioner. A Commissioner is entitled to the remuneration and allowances fixed by the Minister (section 5(2)). The Commissioner has a right to resign by delivering a signed letter to the Governor (section 6). A Commissioner may be eligible for reappointment (section 5(1)), but there is no right to be reappointed. An acting Commissioner has the same powers and duties as a substantive Commissioner and is entitled to the same remuneration (section 8). There is no statutory right to a hearing before removal; the Act provides only that removal is at the discretion of the Governor in Council on stated grounds.

Rights of the Secretary. The Secretary has the right to approve staff appointments by a Commissioner and to fix their terms and conditions (section 12(2)). The Secretary may delegate that power to departmental staff (section 13(2)). The Secretary may exercise delegated powers from the Minister (section 13(1)).

Rights of third parties. No rights are conferred on any person outside the Act. Businesses, investors, or migrants who deal with Commissioners have no enforceable right to a particular level of service or outcome. The Act does not create a right to information or access.

The Act contains no criminal penalties, civil pecuniary penalties, or infringement notices. Enforcement is via removal from office and cessation provisions.

Automatic cessation of office. Section 5(4) provides that a Commissioner ceases to hold office if they become an insolvent under administration or are convicted of an indictable offence (or an equivalent offence if committed in Victoria). This is self-executing; the person no longer holds office upon the occurrence of the event. There is no discretion vested in the Governor in Council.

Discretionary suspension or removal. Section 7 allows the Governor in Council to suspend or remove a Commissioner on five grounds: (a) misbehaviour; (b) contravention of a code of conduct under section 63 of the Public Administration Act 2004; (c) incapacity to carry out duties; (d) refusal, neglect or failure to carry out duties; or (e) failure to comply with a ministerial direction given under the Act. The decision is subjective: “if, in the opinion of the Governor in Council”. There is no statutory requirement for an investigation, a hearing, or a statement of reasons. The Act does not provide for appeal to a court or tribunal. The only check is that the Governor in Council acts on ministerial advice, and the removal could be challenged under administrative law principles if it were done in bad faith or for an improper purpose, but the Act itself provides no internal mechanism.

Enforcement of ministerial directions. Non-compliance with a ministerial direction is a ground for removal (section 7(e)). This is the only enforcement measure. A direction itself cannot be enforced by injunction or contempt proceedings under the Act. The direction is not a legislative instrument; it is an administrative direction binding on the appointee.

Code of conduct enforcement. Section 7(b) incorporates codes of conduct issued by the Public Standards Commissioner under section 63 of the Public Administration Act 2004. Breach of such a code can lead to removal. The Public Administration Act provides its own mechanisms for enforcement of codes, but the Commissioner under the current Act is not subject to Part 3 of that Act, which may limit the application of some procedures.

No offences created. The Act does not create any offence for performing functions without appointment, for false representation, or for misuse of position. The general criminal law may apply to misconduct, but the Act adds nothing.

No duty to report. There is no requirement for anyone to report breaches or suspected grounds for removal. The Minister may act on information from any source.

Enforcement costs. Because the Act creates no penalties, enforcement costs fall on the executive branch through the removal process. No independent oversight body is established. This means enforcement is entirely at the discretion of the government of the day.

Repeal of the Agent-General’s Act 1994. Section 17 repeals the predecessor Act. The transitional provisions in sections 15 and 16 deem the existing Agent-General and staff to be appointed under the new Act with the same terms. The Act does not abolish any office; it continues them.

Public Administration Act 2004. Section 5(3) applies the Public Administration Act to a Commissioner in respect of the office, but expressly excludes Part 3 of that Act. Part 3 of the Public Administration Act deals with the code of conduct for public sector employees and certain employment standards. The effect is that a Commissioner is subject to codes of conduct issued under section 63 of that Act (used as a removal ground) but not to the full disciplinary framework under Part 3. Other parts of the Public Administration Act apply, including provisions on public sector values, integrity, and perhaps employment-related matters for staff.

Interpretation of Legislation Act 1984. Section 15 preserves the operation of this Act for transitional matters. The general transitional provision in the Interpretation of Legislation Act applies to the repeal of the former Act, so rights and liabilities accrued under the former Act continue.

Statute Law Revision Act 2013 (No. 70/2013) amended the definition of Secretary from “Secretary to the Department of Innovation, Industry and Regional Development” to “Secretary to the Department of State Development, Business and Innovation” and updated the reference in section 10(2) to the department’s annual report. These were machinery amendments to reflect departmental restructures. No substantive change was made.

Other Victorian legislation. The Act does not interact with trade promotion laws, investment facilitation acts, or migration legislation in a direct, defined way. Commissioners may refer to those laws in their work, but the Act does not confer any powers or duties under those laws. If a Commissioner were to act outside the scope of the Act, the general law would apply. There is no express exemption from other Victorian laws for Commissioners.

Commonwealth laws. The Act does not purport to interact with Commonwealth laws on foreign relations, trade, or migration. Commissioners appointed under state law operate as representatives of a state government, which is constitutionally valid. However, they must comply with Commonwealth laws, including immigration and foreign investment rules, when performing duties.

International law. The Act makes no reference to international law. The presence of a Victorian Commissioner in a foreign country depends on the host country’s consent, usually through diplomatic arrangements. The Act does not address diplomatic privileges or immunities.

The Act has been amended once. The Statute Law Revision Act 2013 (No. 70/2013) made two changes effective from 1 December 2013. First, it amended the definition of Secretary in section 3, replacing “Secretary to the Department of Innovation, Industry and Regional Development” with “Secretary to the Department of State Development, Business and Innovation”. Second, it amended section 10(2) to reflect that the Minister must cause the annual reports to be consolidated in the relevant annual report of operations of the Department of State Development, Business and Innovation, rather than the earlier department. These were administrative updates following a machinery of government change that renamed the department.

No other amendments have been made. The Act itself received Royal Assent on 11 December 2007 and commenced on 12 December 2007. The second reading speech was made in the Legislative Assembly on 11 October 2007 and in the Legislative Council on 1 November 2007. The Bill’s long title describes it as continuing to provide for appointment of an Agent-General, providing for appointment of other Commissioners, and repealing the 1994 Act.

Because the Act is short and relatively uncontroversial, it has only been amended to keep departmental references current. There has been no policy amendment to alter the functions, duties, removal powers, or reporting requirements. This suggests that the Act has operated to the satisfaction of successive governments or has not attracted the attention needed for substantive revision.

The Act has no sunset clause, repeal date, or review provision. It remains in force as at 2013, and based on the available source, no subsequent amendments have been included. Researchers should check the current Victorian legislation database for any amendments after 2013, as the source provided stops at version 003.

There is no reported litigation under the Agent-General and Commissioners for Victoria Act 2007. A search of Victorian courts, the Supreme Court of Victoria, the Court of Appeal, and the High Court of Australia reveals no cases that interpret any provision of this Act. The Act’s provisions have not been challenged on constitutional grounds, nor have any removal decisions been judicially reviewed.

There are several reasons for this absence of litigation. The Act concerns a very small number of appointees, each serving at the pleasure of the Governor in Council in practical terms. Removal decisions are discretionary and the Act provides no right of appeal. The cost and difficulty of challenging an executive decision would be high, and the potential remedy limited. Additionally, the Act does not create enforceable rights for third parties, so there is no basis for a private action. The broad language in section 9(3)(f) and section 11 would likely defer to ministerial judgment in litigation.

No cases were litigated under the predecessor Agent-General’s Act 1994 either, based on the available record. The role is essentially administrative and promotional, rather than regulatory, so it does not generate disputes that reach court.

If a removal were challenged, the likely avenue would be judicial review under the Victorian Civil and Administrative Tribunal Act 1998 or the Supreme Court’s inherent jurisdiction. A court would examine whether the Governor in Council acted within power, whether the grounds for removal existed, and whether procedural fairness was required. The Act does not expressly exclude procedural fairness, but it does not mandate it either. The High Court’s decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 might be relevant, among others, but no case has tested it in this context.

The Act’s provisions on automatic cessation for insolvency or conviction could theoretically be challenged if the conviction is later overturned, but no such case has arisen. Overall, the litigation history is a blank page.

No statutory qualifications. The Act imposes no requirement that a Commissioner have any particular experience in trade, diplomacy, business, or the relevant post territory. Appointments are made at discretion. This creates a risk of patronage appointments or of placing individuals without the necessary skills in a role that involves representing Victoria’s economic interests.

Broad ministerial direction power. Section 11 allows the Minister to give directions on “any post territory” and on “the performance of the Commissioner’s functions or the carrying out of his or her duties”. There is no limit on subject matter. A direction could require a Commissioner to undertake activities that are commercially sensitive, politically controversial, or outside the stated purpose of the Act. The only constraint is that the direction must be in writing and published in the Gazette.

Open-ended duty. Section 9(3)(f) - “do anything else in the relevant post territory that is conducive to the development of the Victorian economy” - places no limits on what a Commissioner may do. This could include activities that compete directly with private businesses, that involve expenditure without clear benefit, or that stray into areas better handled by other agencies. The Commissioner has no statutory obligation to consult with industry or other stakeholders before acting.

Removal without hearing. Sections 5(4) and 7 provide for cessation or removal without any express requirement for a hearing, notice, or reasons. While administrative law may imply some procedural fairness, the Act itself is silent. A Commissioner could be removed summarily on the opinion of the Governor in Council. This creates job insecurity that may affect independence and willingness to challenge ministerial directions.

Annual reports buried. Section 10(2) requires the Minister to consolidate the Commissioner’s annual report into the department’s annual report. This means the Commissioner’s report is not a standalone public document. Parliament and the public cannot easily assess individual performance. Key metrics, cost-benefit analysis, or justified expenditures may be lost in aggregation.

No conflict of interest provisions. The Act does not require a Commissioner to disclose or manage conflicts of interest. While the Public Administration Act 2004 may impose general obligations, the exclusion of Part 3 of that Act removes some specific provisions. A Commissioner could theoretically promote a business in which they have a financial interest without explicit prohibition under this Act.

Unlimited number of Commissioners. The Act does not cap the number of Commissioners. A government could appoint multiple Commissioners for the same or different post territories, increasing costs without clear benefit. There is no statutory requirement to justify new appointments.

Acting Commissioners with same powers. Section 8 gives an acting Commissioner all the powers and duties of a substantive Commissioner. There is no limit on the duration of an acting appointment. A person could serve as acting Commissioner for years without full appointment procedures.

No review mechanism. The Act does not provide for review of appointments, directions, or removals. If a direction is controversial, the Commissioner has no internal avenue to challenge it other than resignation or risking removal.

Transitional ambiguity. Section 16(1) deems an existing Agent-General to have been appointed under the new Act. But if that person’s instrument of appointment under the former Act did not specify a term for the balance, the term might be ambiguous. The Act relies on the Interpretation of Legislation Act 1984 to fill gaps.

Reliance on ministerial discretion. Almost every significant aspect of the office - remuneration, terms, duties beyond the listed ten, post territory, staff approvals, directions - is at the discretion of the Minister or the Secretary. This concentration of power means the Act’s operation depends heavily on the competence and good faith of the current office-holders.

For a Commissioner. The primary compliance obligation is to perform the duties listed in section 9(3) to the satisfaction of the Minister. This requires proactive promotion of Victorian economic interests in the relevant post territory. A Commissioner should document activities to demonstrate performance, particularly given the broad language. The Commissioner must comply with any written direction from the Minister under section 11; such directions should be reviewed carefully and implemented. The Commissioner must submit an annual report by 31 August covering the preceding financial year, and any additional reports the Minister requires under section 11(3). The Commissioner should avoid conduct that could trigger cessation or removal: insolvency, criminal conviction, misbehaviour, code of conduct breaches, incapacity, neglect of duty, or failure to comply with ministerial directions. The Commissioner should become familiar with any applicable code of conduct under section 63 of the Public Administration Act 2004, as breach is a removal ground. Where the Commissioner wishes to appoint staff, the approval of the Secretary must be obtained under section 12(2). The Commissioner must also ensure that the remuneration and terms specified in the instrument of appointment are accepted in writing, and should not accept any other remuneration or benefit in connection with the office without the Minister’s knowledge, as that could constitute misbehaviour.

For the Minister. The Minister must fix the remuneration, allowances, and other terms and conditions for each Commissioner in writing and include them in the instrument of appointment (section 5(2)). Any directions given under section 11 must be in writing and published in the Government Gazette as soon as practicable. The Minister must receive annual reports from each Commissioner and cause them to be consolidated in the department’s annual report (section 10). If the Minister requires ad hoc reports, a written specification of the matters and timing should be provided. The Minister may delegate powers to the Secretary under section 13(1) by instrument. If the Minister forms an opinion that grounds for removal exist, the Minister should advise the Governor in Council. There is no statutory requirement to give the Commissioner an opportunity to respond, but procedural fairness would likely compel at least a notice and opportunity to make submissions in practice.

For the Secretary. The Secretary must approve any staff appointments made by a Commissioner under section 12(2) and may fix terms and conditions for such staff. The Secretary may delegate that power to departmental staff under section 13(2). The Secretary may exercise any delegated powers from the Minister. The Secretary should maintain records of approvals and delegations.

For staff of a Commissioner. Employees appointed under section 12 are subject to the terms fixed by the Secretary and the Public Administration Act 2004. They should comply with applicable public sector values and any code of conduct. Their duties are determined by the Commissioner, subject to the Act and ministerial directions.

Record-keeping. Although the Act does not mandate particular records, a Commissioner should keep detailed records of activities, correspondence with the Minister, directions received, and financial expenditure. This will assist in preparing the annual report and in demonstrating compliance if removal proceedings are threatened.

Practical steps. A new Commissioner should obtain from the Minister a clear written statement of the post territory, expected duties beyond the statutory list, and any specific performance indicators. The Commissioner should seek written directions if the Minister gives oral instructions. A Commissioner should review the annual report requirements early and set out a reporting timetable. All communications with the Minister should be preserved. The Commissioner should also obtain legal advice on the scope of the “do anything else” power and on conflicts of interest, though the Act does not require this.