Commonwealth Arrangements Act 1958

Arrangements. This is the central operative concept. The Act does not define “arrangements”, but the term is used in sections 3, 5A, 6, and 6A to describe agreements or understandings between the Governor in Council and the Governor‑General. They need not be formal contracts; the phrase “by agreement with the Governor‑General or otherwise” indicates that even informal or non‑contractual understandings may suffice. The Act does not prescribe any form, registration, publication, or parliamentary tabling requirements for these arrangements. This gives the executive wide latitude to structure inter‑governmental deals without legislative oversight.

Governor in Council. The power to make arrangements is vested in the Governor in Council, which means the Governor acting on the advice of the State Cabinet. It is not a personal power of the Governor, but a formal executive act. The Governor in Council can also make orders and give directions necessary to carry out arrangements (section 3 final paragraph). This reflects the constitutional convention that the Crown in right of Victoria acts on ministerial advice.

Officer of the State of Victoria (Part II definition). Section 7 provides a broad, inclusive definition for purposes of taxation: it covers every person in any office or employment under the Crown or Government of Victoria, including the public service, Victoria Police, service in Parliament, and service under the Transport (Compliance and Miscellaneous) Act 1983 or the Transport Integration Act 2010, and any office for which payment is provided out of the Consolidated Revenue. The definition has been amended over time to keep pace with machinery‑of‑government changes, most recently in 2010 and 2014. It is deliberately wide, encompassing not just public servants but also ministerial office‑holders and parliamentary staff.

Public building. Section 3(b) refers to “any part of any public building not used exclusively in connexion with any department of the public service transferred to the Commonwealth.” This phrasing dates from the early federation era when certain State functions (e.g., customs, defence, posts) had been transferred to the Commonwealth under the Constitution. The concept limits the Commonwealth’s permitted use to parts of buildings that are not already dedicated to a State‑transferred function.

Temporary assistance. Section 4 allows Victorian public servants to “temporarily act” for the Commonwealth. The Act does not define “temporarily”, nor does it set a maximum duration. The only conditions are that the employee must have the consent of the Governor in Council and must continue to carry out their normal State duties. This permits dual roles but creates potential conflicts of interest, divided loyalty, and accountability gaps.

Double‑hatting. Sections 5 and 5A together establish that a person can simultaneously be an officer of both the Commonwealth and Victorian public service, and that arrangements can be made for payment when such an officer performs duties for the Commonwealth. This concept avoids the constitutional limitation that a person cannot serve two masters in incompatible offices, but it does not resolve practical issues such as which employer’s code of conduct applies or who bears liability for misconduct.

Taxation saving. Part II is essentially a constitutional saving clause. It pre‑emptively repudiates any argument that Commonwealth income tax on State officers amounts to an interference with a State’s power to set salaries or employ staff. The protection is conditional: it applies only if the Commonwealth tax is non‑discriminatory. If the Commonwealth ever tried to tax State officers at a higher rate than private‑sector salaries of the same amount, section 8 would cease to provide any shield, and the constitutional question would be litigated.

The Act directly affects a narrow set of actors: the Governor in Council, the Governor‑General, State and Commonwealth ministers and public servants, and, indirectly, Victorian taxpayers. It does not create rights or obligations for private businesses, individuals, or non‑governmental organisations.

Victorian public servants. Sections 4 and 5A are the provisions most likely to be invoked. Any Victorian public servant who is asked or volunteers to perform duties for the Commonwealth - for example, secondment to a Commonwealth agency, co‑location in a shared service centre, or participation in a joint taskforce - may be assigned such duties with the consent of the Governor in Council. The Act does not require the individual employee’s consent; it merely requires executive approval. This can affect an employee’s terms and conditions, as the arrangement may alter supervision, reporting lines, and accountability. The employee may also be subject to two sets of workplace laws, codes of conduct, and security clearances.

Commonwealth officers. Section 5 permits a Commonwealth officer to simultaneously hold a Victorian public service position. Section 6A allows a Commonwealth officer to perform work or duties for Victoria. This affects Commonwealth officers who might be seconded to State roles or work in inter‑governmental programs (such as national policing initiatives or joint regulatory bodies). Their conditions of employment may become uncertain if the arrangement does not specify which jurisdiction’s rules govern leave, discipline, or workers’ compensation.

The Governor in Council and the State executive. The Act vests substantial discretion in the executive. The Governor in Council can enter into arrangements without legislation, public consultation, or independent oversight. This affects the distribution of power within the State: it allows the executive branch to commit State resources (buildings, personnel, funds) to Commonwealth purposes without parliamentary scrutiny. It also affects the budget, since arrangements under sections 5A, 6, and 6A involve payments to or from Victoria.

The Commonwealth. The Act provides a legal basis for the Commonwealth to access State buildings (section 3), borrow State staff (section 4), and receive services from Victoria (section 6). It also allows the Commonwealth to task its own officers to work for Victoria (section 6A). This facilitates Commonwealth program delivery without requiring separate arrangements under Commonwealth law.

Victorian taxpayers. Taxpayers are affected indirectly. Arrangements that involve payments to or from Victoria shift public money between the two levels of government. The Act itself does not require any cost‑benefit analysis, transparency, or reporting of these financial flows. Taxpayers bear the risk that arrangements may be unfavourable to the State or may bypass normal appropriations processes.

Users of Government House. Section 3(a) allows the Governor‑General to use and occupy Government House in St Kilda Road. This may affect the public’s access to the building (if it is used for Commonwealth rather than State ceremonial purposes) and may require expenditure on maintenance or security that would not otherwise occur.

The Commonwealth Arrangements Act 1958 is almost entirely enabling and permissive; it imposes very few duties and creates no private rights. Its provisions are better characterised as powers of the executive than as rights of individuals.

Powers of the Governor in Council. The Act confers several powers on the Governor in Council:

• To make arrangements for use and occupation of Government House and public buildings (section 3).
• To consent to Victorian public servants temporarily acting for the Commonwealth (section 4).
• To make arrangements for payment and adjustment when a State officer performs duties for the Commonwealth (section 5A).
• To authorise and cause any work or service to be performed for the Commonwealth and to make arrangements for payment (section 6).
• To make arrangements for Commonwealth officers to perform work or duties for Victoria and to determine payment (section 6A).

These powers are discretionary, not mandatory. The Governor in Council is not obliged to exercise any of them, and a third party cannot compel the executive to do so. The powers are also broad: “any work or service” under section 6 is not limited to specific functions, and “any matters which may require to be adjusted” gives wide latitude.

Rights of the Commonwealth. The Commonwealth has no statutory right to demand use of buildings, staff, or services; it must request them, and the Governor in Council may agree or not. Once an arrangement is made, however, the terms become binding as a matter of inter‑governmental agreement. The Act does not specify whether such arrangements are contractually enforceable, but they are typically political rather than legal commitments.

Rights of employees. Individual Victorian public servants do not have a statutory right to act for the Commonwealth; they require the consent of the Governor in Council. Section 4 states that it is “lawful for any employee … to temporarily act” with consent, but it does not give the employee a right to seek that consent or to demand it. Similarly, Commonwealth officers have no right under section 6A to perform duties for Victoria; it is the Governor in Council who may make arrangements for them to do so.

Duty of non‑discriminatory taxation (constitutional, not statutory). Part II does not impose a duty on the Commonwealth; it is a unilateral statement by Victoria that if the Commonwealth taxes State officers on a non‑discriminatory basis, Victoria will not treat that as an interference with its powers. This is a political recognition rather than a legal duty. The Act does not purport to bind the Commonwealth, which can set its own taxation rates. If the Commonwealth were to impose higher rates on State officers, the Act’s protection would fall away and litigation would likely ensue.

No duty to report. The Act imposes no duty on the Governor in Council to report arrangements to Parliament, publish them, or make them publicly available. This lack of transparency is a significant feature: the public and even individual affected employees may not know the precise terms of arrangements that affect their buildings, jobs, or finances.

The Act contains no penalty provisions. There are no fines, imprisonment terms, infringement notices, or civil pecuniary penalties for any breach of its terms. This is consistent with its nature as an enabling, administrative statute rather than a regulatory one.

Enforcement of arrangements. Because the Act itself does not create enforceable obligations, the only way to enforce the terms of any arrangement made under it is through general contract law (if the arrangement constitutes a contract) or through political channels. Inter‑governmental agreements are rarely litigated in court; disputes are typically resolved through negotiation, arbitration, or ministerial correspondence. The Act does not provide a dispute resolution mechanism, nor does it expressly state whether arrangements are intended to be legally binding.

Judicial review. The exercise of powers under the Act (such as the Governor in Council’s decision to consent or to make an arrangement) may be subject to judicial review on ordinary administrative law grounds - for example, if the decision was made for an improper purpose, was unreasonable, or breached procedural fairness. However, the Act’s broad language (“may”, “it shall be lawful”, “as may be deemed expedient”) gives the executive very wide discretion, making successful review unlikely. The “notwithstanding” clauses in sections 3 and 4 also limit the scope of review based on inconsistency with other Acts.

Lack of sanctions for non‑compliance with Part II. Part II is a savings provision. It does not require any party to do or refrain from doing anything. There is no penalty if the Commonwealth taxes State officers at a higher rate; the only consequence is that Victoria would be entitled to argue that the tax is an interference with State power, which would then be litigated under the Constitution. The Act does not create a private right of action for affected State officers.

Consequences for dual officers. If a Victorian public servant acting for the Commonwealth under section 4 breaches a duty or causes loss, the question of which government bears liability depends on the terms of the arrangement and general principles of agency, not on the Act directly. The Act provides no express indemnity or limitation of liability for such dual‑service arrangements.

No enforcement body. No regulator, ombudsman, or court is given jurisdiction under this Act. Enforcement, if any, is left to the general law and to inter‑governmental relations.

The Act expressly overrides other Victorian legislation through the phrase “notwithstanding anything contained in any Act” in sections 3 and 4. This means that if an arrangement under section 3 or 4 conflicts with a provision of another State Act (for example, the Public Administration Act 2004, the Property Law Act 1958, or the Government House Act), that other Act gives way to the extent of the inconsistency. This is a strong form of legislative override.

Interaction with public service legislation. Sections 4 and 5 permit dual employment and temporary secondment to the Commonwealth. The Public Service Act 1974 (Vic) and the Public Administration Act 2004 (Vic) would ordinarily regulate the terms of employment for Victorian public servants. The Commonwealth Arrangements Act overrides these where an arrangement is in place. However, the 1974 and 1998 amendments to the Act (No. 8656 of 1974 and No. 46 of 1998) updated references from “officer” to “employee” to align with modern public service terminology. The interaction is not fully harmonised: for example, an employee acting for the Commonwealth may be subject to two codes of conduct, and the Act does not say which prevails.

Interaction with Commonwealth legislation. The Act is a State law and cannot override Commonwealth legislation. Sections 4 and 5 permit a Victorian employee to act for the Commonwealth, but the Commonwealth’s own staffing powers and conditions (e.g., under the Public Service Act 1999 (Cth)) will also apply. A person cannot be a Commonwealth officer unless the Commonwealth’s own laws permit it. Section 5A and 6 deal with payments to Victoria, which may intersect with Commonwealth appropriations and financial management legislation. The Act does not address tax implications (other than Part II), workers’ compensation, or superannuation portability - these are left to other laws.

Interaction with the Constitution. Part II of the Act is explicitly a response to the constitutional question of whether Commonwealth income tax on State instrumentalities is an interference with State powers under the Melbourne Corporation doctrine (as articulated in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, though the Act predates that case in its original form). Section 8 is a statutory acknowledgment that non‑discriminatory Commonwealth taxation is not an interference. If the Commonwealth were to tax State officers at a higher rate, the Act’s saving provision would not apply and the constitutional issue would be determined by the High Court. Section 9 excludes the Governor’s salary, reflecting the special constitutional status of the Governor as the Queen’s representative.

Interaction with specific subject‑matter Acts. The definition of “Officers of the State of Victoria” in section 7 has been amended several times to keep up with changes to transport legislation. The current version includes service under the Transport (Compliance and Miscellaneous) Act 1983 and the Transport Integration Act 2010. This ensures that employees of statutory transport bodies are covered by Part II’s taxation saving. Similarly, the 2014 amendment added a reference to Victoria Police to reflect the creation of the office of Victoria Police as a separate entity.

No interaction with privacy or data protection laws. The Act is silent on information handling, privacy, or security. If an arrangement under section 6A involves a Commonwealth officer handling Victorian data, the Privacy and Data Protection Act 2014 (Vic) and the Commonwealth Privacy Act 1988 would both potentially apply. The Act does not resolve conflicts.

The Commonwealth Arrangements Act 1958 is a consolidation of earlier Acts, principally the Commonwealth Arrangements Act 1928 (No. 3658). The Schedule repealed the 1928 Act and related provisions. The Act commenced on 1 April 1959. Since then, it has been amended six times, all by Acts that primarily dealt with other subject matters.

Constitution Act Amendment (Electoral) Act 1969 (No. 7809/1969). Assented 6 May 1969, commenced 1 July 1969. This Act inserted section 6A, which for the first time allowed arrangements for Commonwealth officers to work for Victoria. Before 1969, the Act only provided for Victorian staff to assist the Commonwealth. This was a significant expansion, enabling reciprocal secondments.

Public Service Act 1974 (No. 8656/1974). Assented 20 December 1974, commenced 1 August 1975. This Act inserted section 5A (arrangements for payment when a State officer performs duties for the Commonwealth) and substituted a new section 6 (arrangements for work or service for the Commonwealth). The previous section 6 had been narrower. The 1974 amendments reflect the growing complexity of inter‑governmental service arrangements and the need for explicit financial adjustment mechanisms.

Public Sector Reform (Miscellaneous Amendments) Act 1998 (No. 46/1998). Assented 26 May 1998, s 7(Sch 1) commenced 1 July 1998. This Act made textual amendments to sections 4, 5, and 6A to replace references to “officer” with “employee” in the context of the Victorian public service, conforming to terminology changes in State public sector legislation.

Statute Law (Further Revision) Act 2006 (No. 29/2006). Assented 6 June 2006, s 3(Sch 1 item 7) commenced 7 June 2006. This Act amended section 7 (definition of Officers of the State of Victoria) by updating references to transport legislation to reflect the renaming of the Transport Act 1983 and other changes.

Transport Integration Act 2010 (No. 6/2010), as amended by No. 45/2010. Assented 2 March 2010, s 203(1)(Sch 6 item 8) commenced 1 July 2010. This Act further amended section 7 to insert a reference to the Transport Integration Act 2010, replacing the earlier reference to the Transport Act 1983.

Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014). Assented 3 June 2014, s 10(Sch item 24) commenced 1 July 2014. This Act amended section 7 by inserting “service with Victoria Police” into the definition. This reflected the establishment of Victoria Police as a separate employer under the Victoria Police Act 2013.

No amendments have been made since 2014. The Act remains in force as a short, nine‑section statute. Its sparse content means that much of the detail of inter‑governmental cooperation is left to negotiation rather than legislation.

No reported litigation concerning the Commonwealth Arrangements Act 1958 is recorded in the source text. The Act’s endnotes contain no explanatory details or case references, and the table of amendments does not note any court decisions. This is unsurprising given the Act’s permissive, administrative character and the fact that most inter‑governmental arrangements are non‑justiciable political agreements.

Possible reasons for absence of litigation.

• The Act confers broad, discretionary powers on the executive, which are difficult to challenge.
• Arrangements made under the Act are typically of low visibility and unlikely to generate disputes that reach court.
• Part II (taxation saving) was designed to avoid litigation by acknowledging the validity of Commonwealth tax; any challenge would likely be brought under the Constitution rather than under this Act.
• Sections 4 and 5 permit dual service but do not prescribe enforceable conditions; any dispute about an individual employee’s status would more likely be litigated under general employment or administrative law.

Potential future litigation scenarios.

• If a Victorian public servant acting for the Commonwealth under section 4 were injured at work, the question of which government owes workers’ compensation could arise. The Act is silent on this.
• If the Commonwealth sought to tax State officers at a higher rate than other salaries, section 8’s saving provision would not apply, and litigation under the Melbourne Corporation principle would be likely. The Act would be cited as a relevant legislative statement.
• If the Governor in Council made an arrangement that was allegedly ultra vires (e.g., beyond the scope of the Act), judicial review might be sought. However, the Act’s broad language makes such a challenge difficult.

The absence of litigation means the Act has operated largely as a quiet facilitative mechanism, avoiding the courts. Practitioners advising on inter‑governmental secondment or building‑use agreements should not assume that the Act’s provisions have been judicially interpreted; they must rely on the plain text and general principles of administrative and constitutional law.

Several features of the Commonwealth Arrangements Act 1958 may catch out practitioners who assume it is a routine or spent enactment.

1. “Notwithstanding anything contained in any Act” is a powerful override. Sections 3 and 4 contain this phrase. It means that an arrangement made under those sections can override any other Victorian Act, including Acts that protect employees, regulate land use, or require competitive tendering. A person relying on another Act for a right - for example, a public servant relying on the Public Administration Act’s merit‑based selection provisions - may find those protections rendered irrelevant if an arrangement is in place. The override is not limited to Acts in force at the time of the 1958 consolidation; it applies to future Acts as well, unless those Acts expressly repeal or amend the Commonwealth Arrangements Act.

2. No parliamentary approval or publication required. Arrangements made under the Act need not be tabled in Parliament, gazetted, or published. The Governor in Council can make a binding arrangement (albeit politically binding) with no transparency. This means that affected employees, building users, and even other government agencies may not know the terms. It also creates the risk of inconsistent or secret commitments that may later be revealed to the State’s disadvantage.

3. The definition of “Officers of the State of Victoria” is extremely broad and still evolving. Section 7 includes not only public servants and police but also “persons in any office or employment under the Crown or the Government of Victoria” and any office paid out of the Consolidated Revenue. This could cover independent statutory officeholders, judges (though their taxation is separately dealt with under the Constitution), and even some contractors if they are “in employment” under a broad interpretation. The definition is not self‑limiting, and the High Court might give it a wide reading.

4. The Governor in Council’s power under section 6 is not limited to “temporary” or “minor” services. Section 6 says “any work or service to be performed for the Commonwealth”. This could encompass long‑term engagements, large‑scale infrastructure projects, or ongoing administrative functions. There is no dollar threshold, no time limit, and no requirement for a cost‑benefit analysis. A future executive could commit Victoria to a multi‑year, multi‑million dollar service agreement under this provision without seeking parliamentary appropriation, as long as the Governor in Council authorises it.

5. No explicit authorisation for payment of individual officers. Section 5A allows arrangements for “the rate of payment to be made to Victoria”, but it does not authorise payment directly to an officer who performs duties for the Commonwealth. If an officer is to be paid by both governments, the arrangement must specify the split. Without a clear arrangement, the officer may be overpaid or underpaid, and recovering overpayments could be legally uncertain.

6. Part II does not apply to the Governor’s salary (section 9). This carve‑out means that if the Commonwealth ever sought to tax the Governor’s salary, Victoria could not rely on section 8 to say it is not an interference. The Governor’s salary is constitutionally protected under s 125 of the Constitution? Actually, the salary of a State Governor is determined by the State and is generally not subject to Commonwealth tax due to the inter‑governmental immunities doctrine. But the Act keeps the Governor explicitly outside the saving provision, potentially creating a gap if the immunity is ever narrowed.

7. The Act is silent on conflicts of interest and confidentiality. A Victorian public servant acting for the Commonwealth under section 4 may have access to confidential information from both governments. The Act provides no rules about disclosure, confidentiality, or recusal. This exposes the employee and both governments to legal risk under other laws (e.g., secrecy provisions under Commonwealth or State legislation). A prudent arrangement should address these matters contractually, but the Act does not require it.

8. Sunset and review clauses are absent. The Act has no expiry date and no provision mandating periodic review. It remains on the statute book in its 1958 form, with only minor updates. Its continued applicability to modern inter‑governmental arrangements (such as digital service delivery or joint procurement) may be questionable, but it has never been repealed or replaced.

The Commonwealth Arrangements Act 1958 imposes no compliance obligations on private citizens or businesses. Compliance concerns only the Victorian executive (the Governor‑General and ministers) and, to a lesser extent, public servants who may be affected by arrangements. Because the Act is permissive, “compliance” means ensuring that any inter‑governmental arrangement that might fall within its scope is properly authorised and documented.

For the Victorian executive (Governor in Council). Before entering into an arrangement to use a public building for Commonwealth business, to allow a State employee to act for the Commonwealth, or to have a Commonwealth officer work for Victoria, the Governor in Council should formally authorise that arrangement by an order or direction. Section 3 provides for orders and directions to carry out arrangements. A written instrument should record the arrangement, identify the parties, specify the duration, and include financial terms where relevant. The executive should ensure that the arrangement does not conflict with other Acts unless the override in sections 3 or 4 is intentionally invoked. If the arrangement involves a new commitment of State funds, the Treasurer should be consulted, and the arrangement should be consistent with the Appropriation Act or other budget authority.

For Victorian public servants. An individual employee who is asked to perform duties for the Commonwealth should ensure that the Governor in Council has given consent under section 4. The employee should request written confirmation of the consent and a clear statement of the duties, reporting lines, and conditions. The employee should also understand which jurisdiction’s code of conduct, work health and safety laws, and grievance procedures apply. If the arrangement is not documented, the employee should seek a written direction from their department head specifying that the consent has been obtained. The employee should note that acting for the Commonwealth does not disqualify them from their Victorian position, but it may create conflicts of interest that must be disclosed.

For Commonwealth agencies. A Commonwealth agency wishing to use a Victorian public building, second a Victorian employee, or have its own officer work for Victoria should initiate a request through the relevant State portfolio department. The agency should be prepared to negotiate terms, including payment for services. The arrangement should be documented in a memorandum of understanding or inter‑governmental agreement, referencing the relevant section of the Commonwealth Arrangements Act. The agency should also ensure compliance with Commonwealth laws, such as the Public Service Act 1999 and the Financial Management and Accountability Act 1997.

For affected building managers and property authorities. If a building is partly used for Commonwealth business under section 3(b), the manager should confirm that the Governor in Council has made an arrangement and issued any necessary directions. The manager should obtain a copy of the order. Occupancy costs, security, and maintenance should be allocated in accordance with the arrangement.

No compliance action for Part II. Taxpayers and employers do not need to take any action in relation to Part II. It is a statement of law that non‑discriminatory Commonwealth taxation is not an interference. If a State officer believes they are being taxed at a discriminatory rate, they should seek tax advice and possibly challenge the assessment under Commonwealth tax law, citing this Act as a relevant legislative recognition of the limits on Commonwealth power.

Documentation and record‑keeping. Because the Act does not require publication, it is prudent for the State to maintain a central register of all arrangements made under the Act. This is not a legal requirement but would assist in transparency, audit, and accountability. The register should include the date, the section under which the arrangement was made, the parties, the subject matter, the financial terms, and the duration.

Legal review. Any significant arrangement made under sections 5A, 6, or 6A that involves substantial payments or long‑term commitments should be reviewed by the Victorian Government Solicitor’s Office to ensure it is within power, consistent with other laws, and properly documented. The “notwithstanding” clauses should be used sparingly and explicitly stated in the arrangement.