Status of Children Regulations 2024

The Regulations rely on and operate through a set of cross-references to the Act. The principal conceptual moves are:

• Correspondence and recognition. The Regulations implement "corresponding" relationships contemplated by the Act: they list which interstate statutes count as corresponding surrogacy laws (reg 6) and which express provisions within those statutes count as corresponding surrogacy parentage orders (reg 7). The Regulations therefore operationalise interstate recognition and correspondence by enumerating jurisdictions and provision numbers. The nominated Acts are the Parentage Act 2004 (ACT), and Surrogacy Acts of New South Wales (2010), Northern Territory (2022), Queensland (2010), South Australia (2019), Tasmania (2012) and Western Australia (2008) (reg 6). Reg 7 then identifies precise sections in those laws that constitute corresponding parentage orders.

• Professional gatekeeping for counselling. For surrogacy arrangements conceived without the assistance of a registered ART provider, the Act requires counselling (s 23; the Regulations refer to s 23(2)(b) and s 23(3)(b)). The Regulations prescribe the qualifying criterion for counsellors: full membership of, or eligibility for full membership of, the Australian and New Zealand Infertility Counsellors' Association (ANZICA) (reg 8). Conceptually, this imports an external professional membership standard into the statutory gate for counselling.

• Narrow exceptions to prohibited payments. The Act contains provisions that treat material benefits, advantages or inducements connected with surrogacy arrangements as problematic; the Regulations explicitly carve out a particular category of reimbursement of costs under the Western Australian Human Reproductive Technology Act 1991 from being treated as a material benefit or material inducement for the purposes of ss 29E(3)(b) and 29H(5)(b) of the Act (regs 9-10). Conceptually, the Regulations align Victoria’s statutory prohibitions with a defined interstate regulatory regime for reimbursements.

• Formal and interpretive housekeeping. The Regulations provide a local definition for "the Act" (reg 5), revoke earlier subordinate instruments (reg 4), and set commencement and authorisation points (regs 2-3). The Endnotes incorporate interpretive statements about how headings, punctuation and examples form part of the Statutory Rule under the Interpretation of Legislation Act 1984; they also state the instrument will sunset after ten years.

Each of these concepts is implemented via explicit prescription rather than by setting out primary substantive rules. The Regulations therefore function as a bridge between the Act’s delegated-definition hooks and external statutes and professional standards.

The Regulations affect distinct groups and legal relationships through the Act’s existing framework. The instrument itself names the categories; the practical implications flow from those prescriptions.

• People subject to interstate surrogacy parentage recognition: individuals (surrogates, intended parents and children) whose parentage orders or statutory parentage recognition originate under one of the prescribed interstate laws or specified statutory provisions listed in regs 6-7. Where the Act’s s 17(1) uses the defined terms "corresponding interstate surrogacy law" and "corresponding surrogacy parentage order", those terms will now point to the Acts and sections enumerated. The Regulations therefore affect the legal status of parentage in cross-jurisdictional cases by controlling which interstate orders or statutory regimes count for the Act’s purposes.

• Counsellors and clients involved in surrogacy conceived outside registered ART providers: reg 8 directly prescribes the qualification threshold for persons who provide the counselling required by s 23(2)(b) of the Act when conception occurs without a registered ART provider. That affects counsellors who wish to participate in such surrogacy processes (they must be full members of ANZICA or be eligible for full membership), and it affects prospective parents and surrogates who must obtain counselling under the Act.

• Parties and intermediaries dealing with reimbursement rules: regs 9 and 10 make the Human Reproductive Technology Act 1991 (WA) a prescribed law for the purposes of the Act’s definitions of material benefit/advantage and material inducement. Practically, this affects parties who would otherwise face inquiry under ss 29E and 29H of the Act as to whether reimbursements of costs constitute prohibited benefits or inducements. If the reimbursement is governed by the specified WA law, the Regulations treat it as excluded for the specified subsections.

• Practitioners advising on interstate recognition, counselling compliance and payment structures: lawyers, fertility clinics, counsellors, notaries and child-related service providers will need to account for the enumerated lists and ANZICA membership requirement when advising clients on parentage recognition, consent and counselling compliance.

• Administrators within the Department or court officers applying the Act’s definitions: these officers will apply the Regulations when interpreting the Act’s cross-references, comparing interstate provisions to the prescribed list, and evaluating whether particular reimbursements fall within the exclusions specified.

The Regulations are not a wholesale change to substantive parentage law in Victoria; rather they re-specify which external rules and which professional criteria the Act will treat as the relevant comparators. Those who operate in surrogacy, counselling and cross-jurisdictional parentage dimensions will therefore see the operational impact most directly.

The Regulations do not themselves create broad new duties or rights but instead specify the external criteria and laws that trigger duties and rights within the Act’s framework. Relevant statutory references are built into the text.

• Duty to obtain counselling where required (imported standard). Where the Act requires counselling for surrogacy arrangements not involving a registered ART provider (s 23(2)(b)), the Regulations (reg 8) prescribe the qualification of counsellors: persons providing that counselling must be full members of, or eligible for full membership of, the Australian and New Zealand Infertility Counsellors' Association. The duty to obtain counselling is in the Act; the Regulations determine who is qualified to discharge that counselling duty for regulatory compliance.

• Recognition of interstate parentage orders and rights conferred by those orders. The Act uses the term "corresponding surrogacy parentage order" in s 17(1); reg 7 prescribes the precise provisions in interstate statutes that are to be treated as corresponding parentage orders for that purpose. The operational effect is that, where an interstate parentage order arises under one of the enumerated sections, the Act’s mechanisms that depend on s 17(1)’s definition will apply. This confers whatever rights the Act itself gives to persons with corresponding parentage orders (the Act is the source of the rights; the Regulations direct when the Act treats an order as corresponding).

• Exceptions to prohibition of benefits or inducements. The Act’s provisions on material benefit/inducement (ss 29E and 29H) include subparagraphs referenced in the Regulations. Regs 9 and 10 make the Human Reproductive Technology Act 1991 (WA) a prescribed law for the purposes of those subsections, meaning that reimbursements of costs under that WA law are excluded from the Act’s material benefit/material inducement characterisation under the cited subsections. The right or permission to reimburse (under that WA regime) is therefore recognised for the Act’s purposes.

• Procedural and interpretive duties for administrators. The Act authorises the making of regulations under s 41; reg 2 records that authorisation. Courts and administrative officers applying the Act must read the definitions and exemptions in light of the Regulations where those definitions are invoked by the Act (for example, when deciding whether an interstate parentage order is a corresponding order).

• Duty to note revocation and commencement dates. The Regulations commence on 28 October 2024 (reg 3) and explicitly revoke two previous instruments (reg 4). Practitioners must apply the current instrument from its commencement date and not rely on the revoked regulations.

The Regulations do not themselves set penalties, criminal offences, or appeal rights; those remain located in the Act or in the interstate statutes referenced. The Regulations therefore allocate rights and duties by fixing the referents and professional criteria the Act expects to be used when its substantive rules are applied.

The Regulations are primarily prescriptive and definitional and do not, within their own text, create new offences or penalty regimes. They instead influence enforcement and penalty exposure under the Act by identifying which external statutory and professional frameworks count for specific Act provisions. The relevant enforcement linkages in the text are:

• No new penalties in the Regulations. The instrument does not itself set fines, penalties, or enforcement mechanisms. Enforcement of substantive obligations (for example obligations under sections s 23, s 29E, s 29H or s 17 of the Act) remains with the primary Act and any entities or courts charged by that Act with enforcement powers. The Regulations adjust the boundaries of those provisions by way of prescription (regs 6-10) rather than by imposing sanctioning provisions.

• Effect on prosecutorial or regulatory decisions under the Act. By listing specific interstate Acts and sections as corresponding, and by declaring the WA Human Reproductive Technology Act 1991 a prescribed law for the Act’s material-benefit/inducement definitions, the Regulations change the factual thresholds that enforcement agencies or courts will apply when assessing compliance with the Act. For example, a reimbursement authorised under the WA HRT Act will, under regs 9-10, not be treated as a material inducement for the statutory subsections cited; that alters enforcement discretion and potential prosecution viability in particular cases where the issue is whether a payment was a prohibited inducement.

• Administrative enforcement risk points. Reg 8 prescribes ANZICA membership or eligibility as the qualification for counsellors in certain circumstances. Administrative enforcement of s 23’s counselling requirement will involve verifying the counsellor’s membership or eligibility status. The Regulations do not specify the evidentiary form of that verification; consequently administrative decision-makers (courts, registries or departmental officers) will need to determine acceptable proof of ANZICA membership or eligibility when assessing compliance.

• Indirect enforcement through recognition of interstate orders. Reg 7’s identification of specific provisions in interstate statutes as corresponding surrogacy parentage orders affects which parentage orders will be recognised under the Act. That recognition can bear on the legal status of parental responsibility, registration of birth entries, and related enforcement of parental rights and duties under Victorian law. The Regulations therefore have a downstream enforcement effect even though they contain no penalties themselves.

• Sunset and renewal enforcement consequences. The Endnotes state the instrument will sunset after ten years from the day of making (Endnote 1). If the Regulations lapse on sunset and are not remade, the references they supply would cease to operate in their present form, which could create enforcement uncertainty unless replaced. The Regulations do not themselves set transitional enforcement arrangements beyond the revocation of the prior subordinate instruments (reg 4).

In short, enforcement and penalties remain anchored in the Act and the interstate Acts; the Regulations refine the factual and legal inputs that enforcement agencies and courts will apply under those primary statutes.

The Regulations are intentionally interactional. They function as a delegated instrument that tells the Act which external statutes, statutory provisions and professional standards to treat as controlling for specific definitions and exceptions. The text makes the interactions explicit.

• Made under the Act. The instrument is made under s 41 of the Status of Children Act 1974 (reg 2). Where the Act contains hooks such as the definition of "corresponding interstate surrogacy law" (s 17(1)), or the counselling requirement (s 23(2)(b)), or the material benefit/material inducement language in ss 29E(3)(b) and 29H(5)(b), it delegates to regulations the task of specifying the relevant external referents. The Regulations therefore fill in the Act’s delegated legislative content by reference.

• Interstate surrogacy laws and sections prescribed. Reg 6 prescribes which interstate statutes count as corresponding surrogacy laws (naming the Parentage Act 2004 (ACT) and Surrogacy Acts in NSW, NT, Qld, SA, Tas and WA). Reg 7 then prescribes which sections within those Acts are the corresponding surrogacy parentage order provisions for the Act’s purposes. This creates a statutory cross-jurisdictional map: when a parentage order or recognition mechanism originates under one of the listed Acts and sections, the Victorian Act will treat it as corresponding, triggering the internal legal consequences that the Act attaches to corresponding orders.

• Interaction with Western Australian HRT law. Regs 9 and 10 prescribe that, for the purposes of s 29E(3)(b) and s 29H(5)(b) of the Act, the Human Reproductive Technology Act 1991 (WA) is a prescribed law such that particular reimbursements of costs do not constitute a material benefit or inducement. This means the Act’s prohibitions will be read subject to an express exclusion where the reimbursement is under the WA HRT Act; the Victorian regime therefore incorporates a waiver or exception tied to an interstate statutory scheme.

• Interaction with professional membership standards. Reg 8 prescribes ANZICA full membership or eligibility as the counselling qualification in circumstances specified by the Act. This imports an external professional membership standard into the Act’s operation, and the interface depends on ANZICA’s own governance and criteria. The Regulations do not restate ANZICA’s membership rules; they rely on the existence and content of that external professional standard.

• Revocations and continuity with prior subordinate rules. Reg 4 revokes the Status of Children Regulations 2014 and the Status of Children Amendment (Counselling) Regulations 2021. The effect is to replace the prior regulatory mapping and counselling prescription with this updated list. The Explanatory details note the specific instruments revoked and the Version as at date (Endnotes 1 and 3).

• Interpretive assists under the Interpretation of Legislation Act 1984. The Endnotes include interpretive guidance drawn from the ILA: headings, examples, punctuation and provision numbers form part of the Statutory Rule (Endnote 1, ILA references). These interpretive rules affect how the Regulations interact with other laws when courts or officers read the text of the Regulation alongside the Act.

• Temporal interaction and sunset. The Regulations commence on 28 October 2024 (reg 3) and will sunset ten years after making (Endnote 1). Practitioners must therefore consider time-limited interaction: if the Regulations lapse and are not remade, the Act’s definitions that depend on them would lack these particular delegated prescriptions.

These interactions are prescriptive and specific; they do not create general harmonisation between Victorian law and interstate regimes beyond the chosen enumerations and the professional membership gate. The Regulations therefore function as a concrete catalogue of cross-references and exceptions that the Act will apply when its substantive provisions are engaged.

The instrument itself contains limited amendment history because it is the new statutory rule replacing earlier ones. The materials provided record the following points about past and current amendments and revocations.

• Revocations effected by the instrument. Regulation 4 expressly revokes two prior instruments: (a) the Status of Children Regulations 2014 (S.R. No. 186/2014 as amended by S.R. No. 122/2021) and (b) the Status of Children Amendment (Counselling) Regulations 2021 (S.R. No. 122/2021) (reg 4; Explanatory details 1-2). The effect is that those prior subordinate instruments ceased to operate on commencement of the new Regulations (28 October 2024).

• No subsequent amendments recorded. The "Table of Amendments" supplied in the Endnotes states that "There are no amendments made to the Status of Children Regulations 2024 by statutory rules, subordinate instruments and Acts" (Endnote 2). This confirms that, as at the Version as at 28 October 2024, the instrument stood unamended since its making on 8 October 2024 and commencement on 28 October 2024.

• Making and commencement dates. The Endnotes specify the instrument was made on 8 October 2024 by the Governor in Council under s 41 of the Status of Children Act 1974 and came into operation on 28 October 2024 (Endnote 1 and reg 3). These dates matter for determining which regulatory specification applied to any transactions or counselling events occurring around the commencement.

• Sunset date. The Endnotes note that the Regulations will sunset 10 years after the day of making (8 October 2034) in accordance with s 5 of the Subordinate Legislation Act 1994 (Endnote 1). That sunset is part of the subordinate legislation lifecycle; if the Regulations are not remade prior to sunset, their prescriptions will lapse and would need replacement to maintain the cross-references.

• Versioning. The instrument is labelled Version No. 001 and is recorded "Version as at 28 October 2024". The Endnotes include the table of provisions and explanatory details indicating that this instrument replaced earlier regulatory instruments and that, as at the stated version, no amendments have been made.

Taken together, the amendment history is short: the Regulations are a replacement instrument, they revoke their predecessors, and they have not been amended since the making recorded in the Endnotes. Users must therefore track whether subsequent statutory rules remake or amend this instrument prior to its sunset in 2034.

The text provided contains no litigation history. It does not cite any cases, judicial decisions, appeals, or judicial interpretations of either the Status of Children Act 1974 or the Regulations themselves. The absence of litigation references in the instrument and Endnotes is an informative datum for practitioners for two reasons.

First, because the Regulations are largely prescriptive and perform cross-referencing tasks, there is less immediate scope for disputes about textual meaning within the Regulations themselves compared with a primary Act that creates novel rights or offences. The Regulations list statutes and sections and prescribe a professional membership criterion; disagreements about those lists will typically require factual or collateral inquiries (for example, whether an interstate provision was sufficiently analogous to the prescribed provision) rather than novel questions of statutory construction arising solely from ambiguous regulatory language.

Second, the absence of cited litigation in the instrument indicates there are no recorded (in the instrument) precedents circumscribing how courts have interpreted the precise regulatory prescriptions. That means practitioners should be alert to how courts might later treat issues that flow from the Regulations, including:

• Whether an interstate statute not on the prescribed list should nonetheless be recognised in a particular case on principles of comity or statutory interpretation;

• How a court will assess "eligibility for full membership" of ANZICA where a counsellor claims eligibility but is not formally a full member;

• Whether reimbursements regulated by other interstate laws (outside the WA HRT Act) fall within or outside the Act’s material benefit/inducement prohibitions, and how courts will evaluate whether a given payment falls within the WA HRT Act exception.

Because no cases are recorded in the source, counsel and advisers must rely on the plain text of the Act and Regulations and be prepared to litigate any contentious points that arise from novel fact patterns. The lack of litigation history in the instrument itself therefore places a premium on careful factual record-keeping and on clear documentary proof of compliance with the regulatory hooks (for example ANZICA membership evidence, or documentary proof that an interstate order was made under a prescribed section).

The Regulations are compact but contain several practical pitfalls and consequential interpretive points that advisers should note and record; each follows directly from the instrument’s wording or from the interpretive Endnotes.

• Narrow and specific lists. Regs 6 and 7 prescribe precise Acts and specific sections within those Acts. If an interstate law is amended and the provisions are renumbered or substantially restructured, the prescribed references in reg 7 may no longer point to the intended provision. The Regulations do not themselves state a mechanism for automatic updating; the lists are a snapshot as at the Version date (28 October 2024). Practitioners must check the current text of the prescribed interstate Acts and the corresponding order sections when advising on recognition.

• "Eligibility for full membership" is open-text. Reg 8 prescribes "full membership, or eligibility for full membership, of the Australian and New Zealand Infertility Counsellors' Association". The Regulations do not define how eligibility is to be evidenced, who assesses eligibility, or whether eligibility is judged at the time of counselling or retrospectively. That means evidence of ANZICA membership status and contemporaneous proof of eligibility will be important. Advisers should seek documentary confirmation from ANZICA where possible.

• No evidentiary form for counselling compliance. The Regulations do not specify what documentary proof of counselling must be provided to satisfy the Act’s requirements (for example written certificates, letters, or declarations). Practitioners should therefore retain and produce contemporaneous counselling records that show the counsellor’s ANZICA status, the date of counselling and topics covered.

• The WA reimbursement carve-out is limited in scope. Regs 9 and 10 make only the Human Reproductive Technology Act 1991 (WA) a prescribed law for two specific subsections (s 29E(3)(b) and s 29H(5)(b)). The Regulations do not state a general rule about reimbursements across other jurisdictions. If a reimbursement happens under a non-WA statutory regime or under a private arrangement, the Act’s material benefit/inducement provisions may still apply. Advisers should not assume the exemption is broader than the text.

• Revocation timing and transitional applicability. The Regulations revoke two prior instruments (reg 4). Where counselling occurred or parentage questions arose during the period when the previous Regulations applied, advisers will need to check which instrument applied at the relevant time. The instrument’s Endnotes establish the making and commencement dates; those temporal markers must be used to determine which regulatory specification governs a given event.

• Sunset and continuity risk. The instrument will sunset ten years after making (Endnote 1). If stakeholders rely on the current regulatory mapping for long-term planning (for example, cross-border family law arrangements), they should monitor whether the Regulations are remade or amended before 8 October 2034 to avoid gaps.

• Dependence on external bodies. Reg 8 imports ANZICA’s membership criteria; any change to ANZICA’s rules, suspension of memberships, or disputes about eligibility will have downstream legal relevance under the Act. Likewise, the carve-out recognising reimbursements under the WA HRT Act requires familiarity with that WA statute’s content and application.

• Interpretive features under ILA. The Endnotes remind readers that headings, examples and punctuation may form part of the Statutory Rule (ILA references). This can affect textual interpretation. For example, practitioners should be alert to how courts might treat the punctuation and headings when resolving marginal cases about whether a prescribed section covers a particular order.

• No express transitional provisions. The Regulations do not themselves set out transitional provisions for orders made under the revoked Regulations. Where previous regulatory criteria differ materially from the replaced instrument, parties should verify which standard applies to their case by reference to the Act’s transitional rules or by obtaining legal advice.

These are concrete operational points rather than evaluative judgments. Each flows from the Regulations’ limited scope and reliance on external statutory and professional referents.

Compliance focuses on aligning practice with the discrete prescriptions the Regulations make. The following checklist, grounded in the Regulations, outlines practical steps for different stakeholders.

For advisers handling interstate parentage recognition or registration:

• Confirm the originating statute: where an interstate parentage order exists, confirm whether the order was made under one of the statutes prescribed in reg 6. The prescribed list is: Parentage Act 2004 (ACT); Surrogacy Act 2010 (NSW); Surrogacy Act 2022 (NT); Surrogacy Act 2010 (Qld); Surrogacy Act 2019 (SA); Surrogacy Act 2012 (Tas); Surrogacy Act 2008 (WA) (reg 6).
• Confirm the specific provision: check reg 7 to see whether the section of the interstate Act under which the order was made is one of the listed sections (reg 7 lists specific sections for each jurisdiction). If the order arises under a different section, do not assume it is a "corresponding surrogacy parentage order" under s 17(1) without further inquiry.
• Maintain contemporaneous certified copies of the interstate order and statutory citation to demonstrate it falls within the prescribed list.

For counsellors and clinics providing counselling for surrogacy without registered ART provider assistance:

• Ensure qualifying membership: the counsellor must be a full member of ANZICA or must be eligible for full membership (reg 8). Obtain written evidence of ANZICA membership or written confirmation from ANZICA about eligibility where possible.
• Keep records: prepare a counselling report that records the counsellor’s ANZICA status (member or eligible), the date of counselling, the persons counselled, and the topics covered to provide evidence of compliance if required by the Act or by administrative processes.

For parties arranging reimbursements of costs:

• If relying on the WA HRT Act exclusion, verify that the reimbursement is within the scope of the Human Reproductive Technology Act 1991 (WA) and that applicable WA processes have been followed. The Regulations explicitly prescribe that the WA HRT Act is a prescribed law for the purposes of s 29E(3)(b) and s 29H(5)(b) (regs 9-10).
• Do not assume reimbursements under other interstate statutes or private arrangements automatically benefit from the same exclusion; secure legal advice where reimbursements are contemplated outside the narrow WA provision.

For registries, courts and administrative officers:

• Apply the prescribed lists literally when the Act’s definitions are invoked. Where a party claims a corresponding status, request documentary evidence that the order was made under a prescribed statute and section (regs 6-7).
• For counselling compliance under s 23, require evidence of ANZICA membership or eligibility in light of reg 8. Determine an acceptable evidentiary form in administrative practice if the Act and Regulations do not specify one.

For record-keeping and lifecycle management:

• Note commencement and revocation dates: the Regulations commenced on 28 October 2024 (reg 3) and revoke the prior S.R. Nos. 186/2014 and 122/2021 (reg 4; Explanatory details 1-2). Use these dates to identify which instrument applied at relevant times.
• Track sunset date: the instrument will sunset 10 years after making (Endnote 1). Plan for potential renewal or replacement before 8 October 2034 to avoid regulatory discontinuities.
• Monitor interstate law amendments: because the Regulations cite specific interstate Acts and sections, routinely check whether those external laws have been renumbered or substantively amended. If an interstate law is amended, consider whether fresh regulatory prescription or legal argument is required.

For risk management and dispute prevention:

• Document the legal basis for any cross-jurisdictional recognition, counselling, or payment arrangements in letters of advice and client files. Where an arrangement relies on the WA HRT Act exclusion, file a copy of the relevant WA statutory provision and any documentation showing the reimbursement fits within that regime.
• Where there is doubt (for example about ANZICA eligibility or about whether an interstate order’s originating section matches reg 7), take conservative steps: obtain formal membership confirmation, seek an expert opinion, or obtain a court declaration where the law’s application will materially affect parental status or custody.

Following these steps will align actors with the Regulations’ explicit prescriptions. Because the Regulations import external criteria rather than set detailed procedural mechanisms, effective compliance depends on documentary proof and contemporaneous records demonstrating that the prescribed statutory and professional referents have been used and satisfied.