Constitution Regulations 2018

The instrument revolves around a few tightly defined legal concepts. Those concepts are stated in the Regulations and in the Endnotes that explain their legal context under the Interpretation of Legislation Act 1984.

• "Prescribed tribunal": Regulation 3 explicitly prescribes seven tribunals for the particular purposes of specified sections of the Constitution Act 1975. The phrase is used in the Regulation heading and in the operative text that lists the tribunals. The Regulations do not define "prescribed tribunal" beyond prescribing particular tribunals for the identified statutory purposes.

• "Purposes of Divisions 4 and 5 of Part IIIAA of the Constitution Act 1975": Regulation 1 sets out this objective. The Regulations do not reproduce the text of those Divisions; instead they operate as a subordinate instrument that links persons serving on listed tribunals to eligibility criteria and processes that are contained in Part IIIAA of the Constitution Act 1975. The Regulations therefore are an enabling instrument, not a substantive amendment to the Constitution Act 1975.

• Authorising provision: Regulation 2 records the source of power used to make the instrument, section 87AAZ of the Constitution Act 1975. That identifies the internal statutory mechanism by which the Governor in Council may make subordinate regulations prescribing tribunals for the purposes identified.

• The list of tribunals: Regulation 3 is the central operative provision. It prescribes these tribunals by name and by reference to the state, territory or Commonwealth Act that established them: (a) Administrative Appeals Tribunal (Commonwealth), established under the Administrative Appeals Tribunal Act 1975 (Cth); (b) ACT Civil and Administrative Tribunal, under the ACT Civil and Administrative Tribunal Act 2008 (ACT); (c) Northern Territory Civil and Administrative Tribunal, under the Northern Territory Civil and Administrative Tribunal Act (NT); (d) Civil and Administrative Tribunal of New South Wales, under the Civil and Administrative Tribunal Act 2013 (NSW); (e) Queensland Civil and Administrative Tribunal, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld); (f) South Australian Civil and Administrative Tribunal, under the South Australian Civil and Administrative Tribunal Act 2013 (SA); (g) State Administrative Tribunal, under the State Administrative Tribunal Act 2004 (WA).

• Temporal operation and sunsetting: The Endnotes make explicit that the Regulations were made on 10 April 2018 and that they will sunset on 10 April 2028 under s 5 of the Subordinate Legislation Act 1994. The Regulations therefore have a fixed duration unless earlier revoked or replaced.

• Interpretation norms that apply to the Rules themselves: The Endnotes reproduce aspects of the Interpretation of Legislation Act 1984 (ILA), including that headings, examples, diagrams and notes inserted on or after 1 January 2001 form part of the Statutory Rule, that punctuation and provision numbers form part of the rule, and that certain "other material" such as explanatory memoranda does not form part of a Statutory Rule. This shapes how the Regulations will be read and construed.

Collectively these concepts show the Regulations are a targeted subordinate instrument focused on eligibility connections between persons holding particular tribunal offices and membership or participation roles under identified parts of the Constitution Act 1975. The Regulations do not attempt to change the substantive eligibility criteria in Part IIIAA themselves; rather they tell readers which external tribunals count for those purposes.

The Regulations primarily operate by reference, not by imposing duties or obligations directly on private citizens. The main affected groups can be identified from the text.

• Members of the listed tribunals: The Regulations expressly prescribe membership of the seven named tribunals for the purposes of specified sections of the Constitution Act 1975. Therefore persons who are members of any of those tribunals are the immediate class affected because their tribunal membership is now singled out as relevant to eligibility under ss 87AAO(2)(a), 87AAQ(1)(f)(i), 87AAS(1)(b)(ii), 87AAS(1)(c)(ii), 87AAS(5), 87AAW(2)(a) and 87AAY(1)(d) of the Constitution Act 1975. The Regulations do not, on their face, prescribe any other tribunal positions as qualifying.

• The Judicial Commission Board and investigating panels under Part IIIAA: The heading to reg 3 identifies the Regulations' purpose as "prescribed tribunal for purposes of eligibility for membership of Judicial Commission Board or investigating panel." That frames the Regulations as directly relevant to the selection or composition rules in Divisions 4 and 5 of Part IIIAA of the Constitution Act 1975. Although the Regulations do not establish the Board or the panels themselves, they change the pool of individuals eligible to be members by reference to membership of the listed tribunals.

• The Governor in Council and responsible ministers: The Endnotes record that the Regulations were made by the Governor in Council under s 87AAZ of the Constitution Act 1975. That indicates the executive decision-maker who enacted the instrument and identifies the institutional path for future amendment or revocation of the Regulations.

• Administrators of appointments and secretariats: Public offices responsible for processing appointments under Part IIIAA will need to apply these Regulations when determining eligibility. Although not named, those administrative actors must take the Regulations into account when interpreting eligibility criteria in the Constitution Act 1975.

• Jurisdictions that established the prescribed tribunals: Each tribunal is established under a particular Act of its originating jurisdiction. Those statutes and tribunals are referenced in reg 3 by name and establishing Act, so the relevant State and Territory tribunals and the Commonwealth Administrative Appeals Tribunal are implicated as institutions whose members are affected by Victorian eligibility rules in the Constitution Act 1975.

What the Regulations do not affect, as evident from the text, is the substantive content of the eligibility provisions in the Constitution Act 1975 themselves. The Regulations do not create new rights to appointment; they only identify which external tribunal memberships will be accepted for the purposes of the specified sections in Part IIIAA. The Regulations also do not impose fees, penalties or procedural requirements on the listed tribunals or their members.

The Regulations are not drafted as a code of duties and rights. They are a prescriptive instrument that links external tribunal membership to statutory eligibility provisions in the Constitution Act 1975. Nonetheless, a useful way to read "duties and rights" against the text is to identify operative legal effects, and what actors must or may rely upon.

• Effect on eligibility rights: By prescribing certain tribunals for the purposes of particular sections of the Constitution Act 1975, the Regulations create a legal basis upon which persons who serve on those tribunals can assert eligibility under those sections. The Regulations do not define the substantive eligibility criteria, but they declare that membership of any of the seven listed tribunals is a recognised qualifying condition for the identified sections: see reg 3 which explicitly links the prescribed tribunals to ss 87AAO(2)(a), 87AAQ(1)(f)(i), 87AAS(1)(b)(ii), 87AAS(1)(c)(ii), 87AAS(5), 87AAW(2)(a) and 87AAY(1)(d) of the Constitution Act 1975.

• No positive statutory duties created in these Regulations: The Regulations do not impose obligations such as reporting, licensing, conduct rules, or fees on listed tribunals or their members. There are no regulatory prohibitions or affirmative duties within the text of the Regulations themselves. Any duties concerning eligibility, appointment, or conduct will derive from the Constitution Act 1975 or from the statutes establishing the prescribed tribunals, not from these Regulations.

• Decision-maker powers and discretion remain with authorising statute: The Regulations were made under s 87AAZ of the Constitution Act 1975, and their practical effect is controlled by the way the Constitution Act 1975 uses "prescribed tribunal" in its eligibility provisions. The Regulations do not grant new discretionary powers to the Governor in Council beyond the power used to make the instrument. The actual appointment or selection processes, and any powers to accept, reject or vet candidates, remain governed by the Constitution Act 1975 and any administrative rules that implement that Act.

• Temporal limitation on rights: Any eligibility benefit that flows from being a member of a prescribed tribunal is temporally bounded by the life of the Regulations. The Endnotes state that the Regulations will sunset on 10 April 2028. Thus the status of a tribunal as "prescribed" under these Regulations is not perpetual unless the Regulations are remade or replaced.

• Reading obligations and interpretative consequences: The Endnotes remind users that headings, examples and notes form part of the Statutory Rule for rules made on or after 1 January 2001 under the Interpretation of Legislation Act 1984. That affects how courts or administrators interpret the Regulations when applying them to particular cases, because the headings and associated material are to be treated as forming part of the rule. At the same time, the Endnotes reiterate that explanatory memoranda and other material printed after the Endnotes do not form part of the Statutory Rule.

In sum, the Regulations operate to recognise certain tribunal memberships as triggering or satisfying eligibility connections in the Constitution Act 1975. They do not create fresh duties or sanctions; any substantive rights to appointment or participation remain within the primary Act and the statutes establishing the named tribunals.

The Regulations contain no penalty provisions, enforcement mechanisms, or administrative sanctioning powers within their text. They are declaratory and prescriptive in a non-punitive sense. This follows from the content and structure of the instrument.

• No penalties provided: A review of the Regulations shows they contain only an objective, an authorising provision, and a list of prescribed tribunals. There is no fine, offence, enforcement power, inspection regime, or compliance reporting obligation stated in the Regulations. The Endnotes contain no indication of penalty provisions either. The absence of penalties in this Statutory Rule means that enforcement concepts must be found in the primary statute, the Constitution Act 1975, or in the statutes that establish the listed tribunals.

• Enforcement will be by reference to primary statutes: Because the Regulations operate solely to prescribe tribunals for the purpose of particular sections of the Constitution Act 1975, any enforcement in relation to eligibility, improper appointments, or challenges to membership will be governed by the primary Act (Part IIIAA of the Constitution Act 1975) and by any related administrative or judicial review processes available under general administrative law. The Regulations do not provide their own enforcement apparatus.

• Administrative application: Practically, enforcement of the Regulations' effect is administrative: persons charged with determining eligibility for appointment to the Judicial Commission Board or an investigating panel must apply reg 3 when determining whether a candidate's tribunal membership qualifies under the relevant sections. If a dispute arises about whether a particular tribunal or a particular person's tenure qualifies, the contested matter would be resolved by reference to the Constitution Act 1975 and by usual administrative or judicial review routes, rather than by the Regulations creating an enforcement regime.

• Temporal enforcement considerations: The Endnotes record the Regulations will automatically sunset on 10 April 2028. Enforcement or reliance on reg 3 for eligibility must therefore take account of the Regulations' lifespan. Questions that relate to appointments or eligibility after the sunset date will need to look to whether the Regulations have been remade or replaced.

• No express transitional or saving clauses: The Regulations do not contain transitional provisions dealing with appointments made before commencement or covering actions taken after sunset. Any such issues would be resolved by the rules in the primary statute or by general principles of statutory construction.

In short, there are no internal penalty or enforcement rules in the Constitution Regulations 2018. Their legal effect is to inform and constrain the operation of eligibility provisions in the Constitution Act 1975; enforcement of those substantive provisions remains in the primary statute and in the institutions responsible for appointments.

The Regulations are a subordinate instrument that explicitly interacts with several primary statutes and with interpretative rules. The text identifies those linkages and the legal nodes where interaction occurs.

• Constitution Act 1975: The Regulations are made under s 87AAZ of the Constitution Act 1975 (see reg 2). Their operative purpose is to prescribe tribunals "for the purposes of Divisions 4 and 5 of Part IIIAA" of that Act (reg 1) and to prescribe particular tribunals for the purposes of the listed sections in Part IIIAA (reg 3). Therefore the Regulations function as a device to identify which external tribunals count for the statutory eligibility provisions contained in Part IIIAA.

• Statutes establishing the prescribed tribunals: Regulation 3 lists each tribunal and cites the Act under which each tribunal was established. These are the Acts through which the Commonwealth, States and Territories created the tribunals whose members are now treated as qualifying for the specified provisions of the Constitution Act 1975. The list cross-references, by jurisdiction, the following Acts:

  • Administrative Appeals Tribunal Act 1975 (Cth);
  • ACT Civil and Administrative Tribunal Act 2008 (ACT);
  • Northern Territory Civil and Administrative Tribunal Act (NT);
  • Civil and Administrative Tribunal Act 2013 (NSW);
  • Queensland Civil and Administrative Tribunal Act 2009 (Qld);
  • South Australian Civil and Administrative Tribunal Act 2013 (SA);
  • State Administrative Tribunal Act 2004 (WA).

  The Regulations do not amend those establishing Acts. They simply recognise tribunal memberships as relevant to Victorian statutory provisions.

• Subordinate Legislation Act 1994: The Endnotes state the Regulations will sunset 10 years after the day of making on 10 April 2028 under s 5 of the Subordinate Legislation Act 1994. Thus the Subordinate Legislation Act imposes an automatic temporal limit on these Regulations unless they are remade.

• Interpretation of Legislation Act 1984: The Endnotes reproduce interpretative rules from the ILA that affect statutory rules made on or after 1 January 2001. Relevant points include that headings, examples, diagrams and notes form part of the statutory rule, as do punctuation and provision numbers. The ILA also clarifies that explanatory memoranda and other material printed after the Endnotes do not form part of the Statutory Rule. Those interpretative norms therefore constrain how reg 3 , and any challenge to its application , will be read and construed.

• Interaction with appointment and eligibility provisions: While the Regulations themselves do not reproduce the text of ss 87AAO, 87AAQ, 87AAS, 87AAW or 87AAY, they expressly identify those subsections as the statutory locations for which the prescribed tribunals are relevant. Any legal query about how being a member of the Administrative Appeals Tribunal, for example, confers eligibility must be resolved by reading reg 3 together with the text of the indicated subsections of the Constitution Act 1975.

• Absence of wider statutory cross-references: The Regulations do not refer to other procedural instruments, administrative codes, or appointment processes. They are narrowly focused and their interactions are principally with the Constitution Act 1975, the Acts that establish the listed tribunals, the Subordinate Legislation Act 1994 (sunset), and the Interpretation of Legislation Act 1984 (interpretation rules).

Given these linkages, practitioners must read reg 3 in the immediate statutory ecosystem: the prescribed tribunals will be relevant only insofar as the primary Act (Constitution Act 1975) uses the concept of a "prescribed tribunal" in its eligibility and appointment provisions.

The Regulations come with a succinct amendment record contained in the document.

• No amendments to date: The Table of Amendments section in the text states there are no amendments made to the Constitution Regulations 2018 by statutory rules, subordinate instruments and Acts. Practitioners should therefore treat Version No. 001 (version as at 10 April 2018) as current at the date of the version.

• No amendments not in operation: The document explicitly states there are no amendments which were Not in Operation at the date of publication. That means there were no recorded amending instruments that had been made but had not yet commenced as at the version date.

• Explanatory details: The Explanatory details section contains no entries at the date of publication. The absence of an explanatory note in the instrument itself reinforces that the Regulations were a straightforward operative schedule with no recorded subsequent explanatory amendments.

• Sunsetting: The Endnotes make clear that the Regulations will sunset on 10 April 2028 by operation of s 5 of the Subordinate Legislation Act 1994. The effect of the sunset is that unless the Regulations are remade or replaced they will cease to operate at that date. Any amendment history after the version date would need to be checked in the Victorian legislation database for instruments remaking or modifying the S.R. No. 43/2018 instrument.

• Legislative provenance recorded: The Endnotes record the making authority and commencement: the Regulations were made on 10 April 2018 by the Governor in Council under section 87AAZ of the Constitution Act 1975 and came into operation on 10 April 2018. That provenance is part of the amendment and commencement history.

For practice, the key point is that at the version date the Regulations had not been amended, but they are subject to statutory sunset and may be remade or amended by subsequent subordinate instruments before or after the sunset date. Any change in the list of prescribed tribunals would require an amending statutory rule made under the same authorising power, unless the primary Act itself were altered.

The text of the Regulations and the Endnotes record no cases, decisions, or litigation associated with the Constitution Regulations 2018.

• No judicial or administrative decisions recorded: The document contains no references to litigation, court rulings, or tribunal decisions that have interpreted or applied these Regulations. The "Litigation history" section in the required output must therefore record that the source does not identify any litigation history.

• No reported challenges in the instrument: Because the Regulations simply prescribe a list of tribunals, and because the instrument records no amendments or explanatory entries, there is no internal note of any disputes, legal challenges, or judicial interpretation captured in the statutory record as at the version date.

• Practical consequence: Where a practitioner or interested party needs to know whether the Regulations have been subject to legal challenge or authoritative judicial interpretation, they must look to external case law databases or the Victorian legislation website for any subsequent decisions. Those resources are not reproduced in the Regulations text itself.

• Where litigation would be focused: Although there is no litigation history in the text, any legal challenge to the effect of the Regulations would, by their nature, be routed through the relevant provisions of the Constitution Act 1975 (Part IIIAA), raising issues such as whether a tribunal membership should be treated as qualifying, or whether an appointment that relied on reg 3 was lawfully made. The instrument itself provides no litigation record.

In short, the source contains no litigation history; any inquiry into disputes or court interpretation post-dating the version should consult external judicial records.

The Regulations are short, but several practical points and interpretative traps emerge directly from the text and the Endnotes. These are not verdicts but concrete cautions for users.

• Temporal limitation by sunset: The Regulations will sunset on 10 April 2028 under s 5 of the Subordinate Legislation Act 1994. Any reliance on a tribunal being "prescribed" after that date requires checking whether the instrument has been remade or replaced. The Endnotes make this explicit.

• Narrow scope: The instrument prescribes specifically named tribunals for specified subsections of the Constitution Act 1975. It does not create a general rule that any tribunal constituted by a State, Territory or the Commonwealth qualifies. The listing is closed in its terms. Practitioners should not assume other tribunals are covered unless the Regulations (or the primary Act) have been amended to include them.

• Reliance on membership, not jurisdictional functions: The text prescribes tribunals by reference to their institutional names and establishing Acts. The Regulations therefore operate by reference to membership of those bodies. If a person undertakes work that is tribunal-like in a different statutory context, that will not be captured unless the tribunal itself is named in reg 3.

• Interpretive material forms part of the rule: The Endnotes reproduce provisions from the Interpretation of Legislation Act 1984 that make headings, examples, diagrams and notes part of the Statutory Rule. That affects how reg 3 will be read and argued about in close cases. Conversely, other material such as explanatory memoranda printed after the Endnotes does not form part of the rule.

• No transitional or saving clauses: The instrument contains no express transitional provisions. If appointments were made between the Regulations' making date and a hypothetical future amendment, the Regulations do not themselves provide transitional protection or validation. Any transitional questions will look to the primary statute or to general legal principles.

• Dependence on primary Act definitions and operation: The Regulations only operate for the listed subsections; they do not define terms used in those subsections. Questions over whether a person in a particular employment status or with a certain appointment qualifies under the listed subsections must be resolved by reference to the Constitution Act 1975. The Regulations do not substitute for interpretation of the primary Act.

• Need for amendment to update covered tribunals: The Regulations are a static list. If a new State or Territory tribunal is created, or if an existing tribunal is renamed, the Regulations would need to be amended to reflect that change if the policy intent is to include the new or renamed body. The absence of amendments in the Table of Amendments highlights that the instrument has not yet been updated since making.

• Geographic spread and potential overlap: The list includes one Commonwealth tribunal and one tribunal from each State or Territory jurisdiction listed. Practitioners should verify whether a tribunal that has been incorporated into another body, or which has had its enabling Act altered, continues to be captured by the textual references in reg 3.

These "gotchas" are directly traceable to the content of the Regulations and the interpretative notes supplied in the Endnotes. They point to administrative and drafting vulnerabilities that arise from prescribing a fixed list by reference to specific Acts and names.

Compliance with these Regulations is administrative and interpretative rather than procedural or monetary. The instrument prescribes tribunals whose members are to be treated as qualifying for specified sections of the Constitution Act 1975. The steps below are practical actions drawn from the instrument to ensure correct application.

1. Identify the relevant primary provisions: Before relying on the Regulations, consult the specified subsections of the Constitution Act 1975 cited in reg 3: ss 87AAO(2)(a), 87AAQ(1)(f)(i), 87AAS(1)(b)(ii), 87AAS(1)(c)(ii), 87AAS(5), 87AAW(2)(a) and 87AAY(1)(d). The Regulations do not contain the substantive eligibility criteria; they only identify which external tribunals are "prescribed" for those provisions.

2. Confirm tribunal membership: If an individual wishes to claim eligibility under the cited subsections by virtue of tribunal membership, confirm that the person is in fact a member of one of the seven tribunals listed in reg 3. The list identifies tribunals by name and cites the Act under which they were established. A careful check of appointment instruments, instruments of delegation and the enabling Act is necessary to establish membership.

3. Check timing against commencement and sunset: The Regulations came into operation on 10 April 2018 and will sunset on 10 April 2028. Confirm that the relevant date for eligibility falls within the operative period or that the Regulations have been remade or amended if relying on them near or after the sunset date.

4. Use the interpretative rules: When construing the Regulations, remember the Endnotes reproduce provisions from the Interpretation of Legislation Act 1984 stating that headings, examples, diagrams and notes form part of the Statutory Rule. Treat headings as part of the instrument when preparing advice or applications that rely on the Regulations.

5. Do not assume other tribunals qualify: The Regulations list only seven tribunals. If a person is a member of a tribunal not named in reg 3 but believes it should qualify, the path to inclusion is legislative amendment under s 87AAZ of the Constitution Act 1975. There is no administrative or quasi-judicial mechanism in the Regulations themselves to add tribunals.

6. Document reliance in appointment processes: Administrative decision-makers handling appointments under Part IIIAA should record how reg 3 was applied when determining eligibility. Because the Regulations do not create their own enforcement mechanism, good record-keeping will aid any administrative review or judicial scrutiny concerning an appointment.

7. Monitor for amendments or replacement: Given the Regulations have a sunset date and the Table of Amendments records none as at the version date, practitioners should monitor the Victorian legislation database for any remaking, amendment or replacement instrument that would alter the list of prescribed tribunals or the regulatory framework.

8. Cross-check tribunal enabling Acts: If there is a question about whether a person’s role within a listed tribunal qualifies (for example, a non-judicial member or an acting appointment), read the enabling Act cited in reg 3 to confirm the legal nature of the appointment or membership. The Regulations identify tribunals by reference to their enabling Acts but do not define membership categories.

9. Seek textual alignment when in doubt: Where uncertainty arises about whether a particular tribunal membership fits the eligibility criteria, resolve it by reading the Constitution Act 1975 subsections together with reg 3, and if necessary by obtaining formal legal advice or administrative determination under the primary statute.

10. No separate compliance filings required: There is no obligation under the Regulations to file anything with a registry or to submit documentation simply because a tribunal is prescribed. Compliance is achieved by correct legal application of the list when making or assessing appointments under the Constitution Act 1975.

Following these steps aligns administrative practice with the legal function the Regulations perform: they identify the external tribunal memberships that count for certain statutory eligibility tests. Because the Regulations are a short, targeted instrument, compliance is principally a matter of accurate identification, timing and documentation rather than meeting ongoing regulatory reporting or payment obligations.