Tobacco (Victorian Health Promotion Foundation) Regulations 2020

The central concept is the Victorian Health Promotion Foundation (VicHealth), a statutory body established by the Tobacco Act 1987. Its primary function is to promote health and prevent disease, funded largely by tobacco licence fees. The Foundation’s board membership is governed by section 21 of the Tobacco Act, which requires the Minister to appoint members representing specified categories. The 2020 regulations implement that requirement by naming specific persons for each category.

The five categories under section 21(1) of the Tobacco Act are as follows. Paragraph (a) covers persons with medical, health or health promotion qualifications or experience. Paragraph (b) covers persons nominated by the Sports Federation of Victoria and a person representing country sport. Paragraph (c) covers persons nominated by the Minister after consultation with specified bodies (the Act text is not reproduced, but the regulations treat this as a separate category with two members). Paragraph (d) covers one additional member nominated by the Minister. Paragraph (e) covers one further member (originally included in the 2020 regulations but later revoked and reinserted by amendment). The regulations in force as at July 2025 list: for (a) Professor Danielle Mazza AM, Ms Nicola Roxon, and Mr Jeremy Laurence Millar (the last chosen by the Minister from a panel submitted by the Anti-Cancer Council); for (b) Ms Stella Smith, Ms Rayoni Nelson (chosen from a panel submitted by the Sports Federation of Victoria), and Ms Leigh Maxine Russell (nominated by the Minister as representing country sport); for (c) Ms Amanda Christine Kelly and Ms Divanisha Pillay; for (d) Ms Jamie Lewis; and for (e) Mr Philip Wade. Additionally, regulation 5(1A) appoints Mr Ian Hamm under category (b) for a term from 23 October 2024 to 22 October 2027.

The appointment periods vary. Some run for three years (e.g., Professor Mazza from March 2025 to March 2028, Mr Millar from July 2025 to June 2028). Others run for shorter periods: Ms Roxon’s term ends on 23 November 2025. The frequent amendments indicate that terms are staggered to avoid complete board turnover at once. The process of selecting members involves panels: for categories (a) and (b), the Minister must choose from a panel of three names submitted by the Anti-Cancer Council (now Cancer Council Victoria) and the Sports Federation of Victoria respectively. For the country sport representative the Minister directly nominates. For other categories the Act may require consultation, but the regulations do not detail that.

The concept of sunsetting under the Subordinate Legislation Act 1994 is critical: the regulations automatically expire on 17 November 2030 unless remade. This forces periodic review of appointments and the regulatory framework. The Interpretation of Legislation Act 1984 governs style changes, headings, examples, and punctuation that form part of the statutory rule. The endnotes confirm that explanatory memoranda and indexes do not form part of the regulations.

The regulations directly affect the twelve named individuals appointed as members of VicHealth, plus any persons previously appointed under revoked regulations whose terms have ended. These individuals gain the right to sit on the Foundation’s board, participate in decision-making, and exercise governance powers under the Tobacco Act. They also assume the fiduciary and statutory duties that attach to board membership under general law and potentially under the Public Administration Act 2004 (though that Act is not cited in the source).

The Minister responsible for administering the Tobacco Act is affected because the regulations prescribe the precise membership composition. The Minister must follow the appointment process set out in section 21, including obtaining panel nominations from the Anti-Cancer Council and the Sports Federation of Victoria. If the Minister wishes to change a member before their term expires, the regulations would need amendment (or the member must resign or be removed under the parent Act). The Minister’s office incurs administrative costs in managing the amendment process through the Governor in Council.

The nominating bodies - the Anti-Cancer Council (now Cancer Council Victoria) and the Sports Federation of Victoria - are directly affected because they must supply panels of three names when vacancies arise. This creates a recurring compliance obligation: these organisations must have processes to identify suitable nominees, vet them, and submit names to the Minister in time for regulatory amendment. Failure to do so could delay appointments and leave board seats vacant.

VicHealth itself is affected because its governing body’s composition determines its strategic direction, procurement decisions, grant-making, and staffing. The regulations ensure that the board includes expertise from medicine, health promotion, and sport. The staggered terms mean that the Foundation’s leadership experiences periodic change, which can affect institutional memory and policy continuity.

Indirectly, organisations that receive VicHealth grants or contracts may be affected by board composition if board members have different priorities. The general public is not directly bound by the regulations, but VicHealth’s health promotion activities are funded by tobacco licence fees, which are a cost imposed on tobacco retailers and wholesalers. Those fee payers are indirectly affected by board decisions on how to allocate those funds.

Legal practitioners advising VicHealth, the Department of Health, or the nominating bodies must track the current version of the regulations to verify board membership. The frequent amendments (seven in five years) create a compliance burden for those who need to know who is entitled to vote at board meetings or execute documents.

The regulations themselves create no duties or rights for the general public. They confer only one right: the right of the named individuals to hold office as members of VicHealth for the specified periods. This right is contingent on the validity of the regulations and the underlying parent Act. If a person’s name appears in the regulations, they are entitled to exercise all the powers and functions of a board member under the Tobacco Act, including voting, attending meetings, and participating in committees. Conversely, persons not named have no right to sit on the board, even if they were previously appointed under revoked regulations.

The regulations impose no explicit duties on anyone. However, by designating individuals as members, they indirectly subject those individuals to the duties that flow from board membership under the Tobacco Act and general law. These include the duty to act in good faith, to exercise care and diligence, to avoid conflicts of interest, and not to misuse position or information. Those duties arise from the common law and from statutes such as the Public Administration Act 2004 (for public entity board members), but the regulations do not restate them.

The Minister has a duty to ensure that the regulations reflect the correct membership at all times. If a member resigns or dies, the regulation becomes inaccurate and must be amended promptly to avoid governance uncertainty. The Minister also has a procedural duty: for categories (a) and (b), the Minister must choose from a panel of three names submitted by the specified bodies. The regulations record that Mr Millar and Ms Nelson were so chosen. If the Minister appointed someone without following that panel process, the appointment would arguably be invalid, and the regulation could be challenged.

The nominating bodies (Anti-Cancer Council and Sports Federation of Victoria) have a duty to submit panels when requested. While this duty is not stated in the regulations, it is implicit in the scheme of the parent Act. Failure to submit names could stall appointments and might be judicially reviewable if it frustrates the composition of the board.

The regulations also create a right of the Governor in Council to make amendments by statutory rule, as evidenced by the many amending instruments. The Subordinate Legislation Act 1994 imposes procedural duties on the rule-maker, including consultation and sunset review, but those are not detailed in this instrument.

In summary, the duties and rights are skeletal: the regulations are purely constitutive. Any heavier duties arise from the parent Act or other general law, not from the regulations themselves. Practitioners must look to the Tobacco Act 1987 and the Public Administration Act 2004 for the substantive obligations of board members.

The Tobacco (Victorian Health Promotion Foundation) Regulations 2020 contain no penalty provisions. They do not create any offences, infringement notices, or civil penalty regimes. The instrument is purely administrative, dealing with board membership. Enforcement of any breaches of the Tobacco Act itself - for example, if a person acted as a board member without valid appointment - would occur under the parent Act or under general criminal law (such as impersonation or fraud). But the regulations do not specify any penalty for acting without authority.

The absence of penalties is typical for appointment regulations. The consequences of non-compliance are not pecuniary but institutional: if a person is appointed in a way that does not comply with the parent Act’s requirements (e.g., if the Minister did not select from a proper panel), the appointment may be invalid. That could lead to legal challenges to decisions made by the board. A person who votes at a board meeting without valid appointment could cause those decisions to be voidable. The risk is reputational and legal, not penal.

Enforcement of the regulations is therefore a matter of administrative law and governance. The Victorian Ombudsman or the Auditor-General could investigate failures to comply with appointment processes. A person with standing could apply for judicial review of an appointment if the Minister acted beyond power. The regulations do not create a private right of action.

The Subordinate Legislation Act 1994 imposes a sunset provision: the regulations expire on 17 November 2030. If no new regulations are made before that date, all board appointments under this instrument will lapse simultaneously. That would create a governance crisis for VicHealth, as the board would cease to have legally valid members. The penalty for failing to remake the regulations is not a fine but the automatic dissolution of the board’s legal authority. This sunset mechanism acts as a coercive device to force periodic renewal and review.

The Interpretation of Legislation Act 1984 governs the valid making of the regulations. If a procedural error occurred in drafting or making the amending regulations (e.g., failure to publish in the Government Gazette, or failure to table in Parliament), the amendment might be invalid. However, the endnotes indicate that all amendments were made by statutory rules that appear to have followed proper process. No penalty attaches to such procedural errors either; the remedy is invalidity of the instrument.

In practice, the only enforcement risk for the named members is that they must ensure their appointment remains current. If a member continues to act after their term expires as stated in the regulations, they could be acting without authority. However, the regulations do not impose a penalty for that; the parent Act or the Public Administration Act might.

The regulations sit squarely within the framework of the Tobacco Act 1987. They are made under section 43 of that Act, which empowers the Governor in Council to make regulations for the purposes of the Act. The substantive content of the regulations - appointment of members - implements section 21 of the Tobacco Act. Section 21(1) sets out the categories of membership and section 21(3)(a) permits the regulations to prescribe the persons who are members. The regulations thus give effect to the parent Act’s scheme for constituting VicHealth’s board.

The Subordinate Legislation Act 1994 governs the making, tabling, and sunset of statutory rules. The endnotes state that the regulations sunset 10 years after the day of making, on 17 November 2030, under section 5 of that Act. This means the regulations have a finite life. Any attempt to continue the appointments beyond that date without new regulations would be ineffective. The Subordinate Legislation Act also imposes consultation and impact assessment requirements for new statutory rules, though those processes are not visible in the regulations themselves.

The Interpretation of Legislation Act 1984 (ILA) applies to the construction of the regulations. The endnotes reproduce the ILA’s provisions on style changes, headings, examples, diagrams, notes, punctuation, provision numbers, and legislative items. All headings included in the statutory rule form part of the rule (ILA s36(1A)). Examples, diagrams and notes also form part of the rule (ILA s36(3A)). Punctuation forms part (ILA s36(3B)). Provision numbers such as regulation numbers and paragraph markers form part (ILA s36(3C)). The location of legislative items (penalties, examples, notes) is clarified by ILA s36B. Importantly, the explanatory memorandum, table of provisions, endnotes, and index do not form part of the statutory rule (ILA s36(3)(3D)(3E)). This means that the endnote references to the Subordinate Legislation Act and ILA are for information only and cannot be used to interpret the regulations’ operative provisions.

The regulations revoke 13 earlier statutory rules under the Tobacco Act. Those earlier rules are no longer in force. Any appointments made under those revoked rules have ceased, unless the person was reappointed under the 2020 regulations. The revocation interaction is clean: there is no saving provision for transitional appointments. The new regulations start fresh.

The Public Administration Act 2004 may impose additional duties on board members of public entities like VicHealth, but it is not cited in the regulations. The Financial Management Act 1994 and the Audit Act 1994 may also apply to VicHealth’s financial governance. However, these interactions are not addressed in the source and cannot be assumed.

The regulations do not interact with Commonwealth laws such as the Corporations Act 2001, because VicHealth is a statutory body, not a company. They do not interact with privacy laws or competition laws, because they deal solely with membership.

The regulations have been amended seven times since their making in November 2020. Each amendment is a separate statutory rule that updates the list of members or adjusts term dates. The amendment history is recorded in the Table of Amendments in the endnotes.

The first amendment was the Tobacco (Victorian Health Promotion Foundation) Amendment Regulations 2021 (S.R. No. 85/2021), made 20 July 2021. It came into operation on 20 July 2021 for most provisions, except for regulation 5(5) which commenced on 4 September 2021 (the start of Ms Smith’s term). This amendment replaced the appointment for category (c) and adjusted the term for Ms Smith.

The second amendment was the Further Amendment Regulations 2021 (S.R. No. 126/2021), made 5 October 2021. It inserted a new member for category (e) (Mr Philip Wade) and inserted a new subregulation (1)(b)(ia) (later revoked). It also inserted regulation 5(1A) for an additional appointment under category (b) - though that was later revoked and then reinserted by a later amendment.

The third amendment was the Amendment Regulations 2022 (S.R. No. 44/2022), made 15 June 2022, commencing 1 July 2022. It substituted the appointment for category (c)(i) and adjusted the term for category (d).

The fourth amendment was the Amendment Regulations 2023 (S.R. No. 62/2023), made 27 June 2023, commencing 1 July 2023. It amended the term for Ms Nelson (category (b)(ii)).

The fifth amendment was the Amendment Regulations 2024 (S.R. No. 115/2024), made 22 October 2024, commencing 23 October 2024. It revoked the earlier inserted subregulation (1)(b)(ia) and inserted a new regulation 5(1A) appointing Mr Ian Hamm for a three-year term from 23 October 2024.

The sixth amendment was the Amendment Regulations 2025 (S.R. No. 3/2025), made 4 March 2025, commencing 5 March 2025. It substituted the appointment of Professor Mazza (category (a)(i)) starting 5 March 2025 and updated the term for Ms Roxon.

The seventh amendment was the Further Amendment Regulations 2025 (S.R. No. 52/2025), made 17 June 2025, commencing 1 July 2025. It substituted appointments for category (a)(iii) (Mr Millar), category (b)(iii) (Ms Russell), category (c)(i) (Ms Kelly), and category (d) (Ms Lewis), all with terms starting 1 July 2025 and ending 30 June 2028.

This rapid turnover - nearly one amendment per year - indicates that the foundation’s membership is subject to frequent change. Terms typically run three years, but some are staggered. The amendment pattern suggests that vacancies are filled as they arise, rather than waiting for a consolidated revision. The cumulative effect is that the regulations as at 1 July 2025 bear little resemblance to the original 2020 version. Anyone relying on an out-of-date version risks acting on incorrect membership information.

The source contains no litigation history. The explanatory details endnote states: "No entries at date of publication." There is no recorded case law or judicial consideration of the Tobacco (Victorian Health Promotion Foundation) Regulations 2020 in the endnotes or in the regulation text itself.

Given the nature of the regulations - they merely name individuals and set terms - they are unlikely to be the subject of litigation. Challenges to board appointments are more likely to arise under the parent Act (Tobacco Act 1987) or under administrative law principles such as jurisdictional error. For example, if the Minister appointed a person without following the panel process required by section 21 of the Tobacco Act, a person with standing could seek judicial review of the appointment and, by extension, of the regulation that purports to record it. However, no such challenge is reported in the source.

The regulations themselves are not self-executing in a way that would give rise to private disputes. They do not affect property rights, contractual obligations, or individual liberties. They are internal governance instruments. The main risk of litigation would arise if the board made a decision (e.g., a grant or a procurement) and a party challenged the validity of that decision on the ground that the board was not properly constituted because a member’s appointment was invalid under the regulations. That would be an indirect challenge to the regulations. But again, the source reports no such cases.

The absence of litigation does not mean the regulations are unimportant. It confirms that they have functioned as administrative machinery without giving rise to disputes. Practitioners should be aware that the lack of litigation history does not provide a safe harbour; a future challenge could arise if an appointment process is flawed.

The sunset provision (17 November 2030) could itself be a source of litigation if the regulations are not renewed in time and the board’s legitimacy is questioned. However, that would be a challenge under the Subordinate Legislation Act 1994, not under the regulations.

The most significant trap is the frequent amendment pattern. As at July 2025, the regulations have been amended seven times in less than five years. A practitioner who reads the original 2020 version or an earlier consolidated version will have an incorrect list of board members. The terms for some members expire on specific dates such as 23 November 2025 (Ms Roxon) or 3 September 2026 (Ms Smith). Relying on an outdated version could result in legal advice about board composition that is wrong, with potential consequences for the validity of decisions.

Another gotcha is the revocation of previous regulations. The 2020 regulations revoked the 2011 regulations and all amendments made between 2013 and 2020. Persons who were members under those earlier instruments ceased to be members on 24 November 2020 unless reappointed. There is no grandfathering or transitional provision. If a member continued to act after that date without reappointment, their participation may have been void.

The sunset date is a hidden expiry trap. The regulations automatically expire on 17 November 2030. If the government fails to remake them before that date, every board appointment will lapse simultaneously. VicHealth would have no legally constituted board, which could paralyse its operations. Practitioners advising VicHealth should have the sunset date on their compliance calendar.

The appointment for Ms Roxon (category (a)(ii)) has a fixed end date of 23 November 2025. After that date, the regulation will still list her as a member if not amended. But the term stated in the regulation will have expired. A person reading the regulation after that date might wrongly assume she remains a member. The regulation itself does not automatically remove her; only an amending regulation can strike her name or adjust the term. This creates a governance gap: the regulation becomes inaccurate between the expiry of a term and the next amendment.

The panel requirement for categories (a) and (b) is a procedural gotcha. If the Minister appoints someone without a proper panel from the Anti-Cancer Council or Sports Federation of Victoria, the appointment is arguably invalid even if included in the regulations. A court could strike down the regulation or the appointment. The regulations themselves record that Mr Millar and Ms Nelson were chosen from panels, which suggests compliance, but for other members the regulation does not state the panel process was used. For category (b)(iii) Ms Russell is described as “nominated by the Minister” rather than chosen from a panel; that is consistent with the country sport representative category.

The reliance on specific named persons means that if a member resigns, dies, or becomes incapacitated, the regulation is immediately out of date until an amendment is made. There is no provision for casual vacancies or acting appointments. The parent Act may have provisions for removal or replacement, but the regulations do not address vacancies. This creates a temporary governance vacuum.

Finally, the interpretation rules under the Interpretation of Legislation Act 1984 mean that the explanatory memorandum and endnotes are not part of the regulations. A court cannot use those materials to interpret the regulations. The operative text is limited to regulations 1 through 5 and Schedule 1.

Compliance with the Tobacco (Victorian Health Promotion Foundation) Regulations 2020 is straightforward but requires vigilance due to the frequent amendments and sunset date. The regulations impose obligations on three main actors: VicHealth itself, the Minister, and the nominating bodies.

For VicHealth, compliance means ensuring that only persons listed in the current consolidated version of the regulations participate as board members. The Foundation should maintain an internal register of members that cross-references the regulation, including the specified term dates. Whenever a term end date approaches (e.g., Ms Roxon’s term ends 23 November 2025), the Foundation should notify the Minister’s office well in advance to initiate the appointment process. After each amendment statutory rule is made, the Foundation should update its internal records and verify that the new members have executed any required declarations or conflict-of-interest disclosures under the Public Administration Act 2004 (if applicable). The Foundation should also check that the Governor in Council has properly made the amendment and that it has been published in the Government Gazette.

For the Minister, compliance requires following the appointment processes set out in section 21 of the Tobacco Act. For categories (a) and (b), the Minister must obtain a panel of three names from the Anti-Cancer Council and the Sports Federation of Victoria respectively, and select from that panel. The regulations record that Mr Millar and Ms Nelson were chosen that way; the Minister must maintain records of compliance. For all appointments, the Minister must ensure that the amendment regulation is drafted accurately and submitted to the Governor in Council in time to avoid gaps. Given the sunset date of 17 November 2030, the Minister’s department should begin work on a replacement regulation no later than mid-2030 to allow for consultation, drafting, and making.

For the nominating bodies (Anti-Cancer Council and Sports Federation of Victoria), compliance means having a transparent and timely process for identifying and vetting potential nominees. They must be prepared to submit a panel of three names when a vacancy arises. They should keep a pool of eligible candidates to avoid delays. Failure to supply names could force the Minister to leave a seat vacant, potentially affecting board quorum and decision-making.

Legal practitioners advising any of these parties should subscribe to the Victorian legislation website’s notification service for amendments to S.R. No. 129/2020. They should check the official version at www.legislation.vic.gov.au before any board meeting to confirm the current membership. They should also verify the sunset date and remind clients of the need to remake the regulations before November 2030.

For members themselves, compliance is passive: they need only ensure they do not act after their term expires. They should note the expiry date in their personal calendars. If a member wishes to resign early, they should notify the Minister so that an amendment can be made.

No filing or reporting is required under the regulations. There is no annual return, no fee, no licence. The only compliance cost is the administrative burden of tracking the instrument’s status. That cost is real: the seven amendments in five years require dedicated attention from governance professionals. Failure to comply with the appointment process could expose decisions to legal challenge, but the regulations themselves do not create direct penalties.