Victorian Civil and Administrative Tribunal (Federal Jurisdiction Matters) Regulations 2021

The central concept is substituted proceedings under Part 3A of the Act. Although the Regulations do not define “substituted proceedings”, that term appears in section 161 of the Act (the authorising provision) and in the objective. Part 3A of the Act allows VCAT to exercise federal jurisdiction when a matter that would otherwise be heard by a federal court is transferred to it, or when a Commonwealth law directly confers jurisdiction. In such proceedings, VCAT’s officers may need to perform administrative tasks like issuing warrants. Because VCAT does not have a registry presence at every Magistrates’ Court location, the Regulations allow Magistrates’ Court officers to perform those tasks. The Regulations define officer as a magistrate, judicial registrar, registrar or other staff appointed under the Magistrates’ Court Act 1989, acting in that capacity. This is a broad category, but the Schedule limits which specific officers can act: only the principal registrar of the Magistrates’ Court or a registrar of the Magistrates’ Court. Magistrates and judicial registrars are included in the definition but are not listed in the Schedule, so they cannot exercise the functions in practice unless they also hold a registrar role. The principal registrar of the Magistrates’ Court and registrar of the Magistrates’ Court take their meanings from section 3(1) of the Magistrates’ Court Act 1989. Those are statutory office holders. The principal registrar of VCAT is the person employed under section 32(1)(a) of the Act. The Regulations do not affect that person’s powers; they merely permit an alternative exercise by the Magistrates’ Court equivalent. Another key concept is the reconstruction of certain references in regulation 6. This is a legislative drafting technique that avoids amending every section of the Residential Tenancies Act 1997 and the Supported Residential Services (Private Proprietors) Act 2010 that mentions “principal registrar”. Instead, for the limited purpose of the functions in Schedule 1, those references are read as including the Magistrates’ Court principal registrar or a registrar. The specified sections are section 333(1)(c), 346(a), 348(1), 349(b), 486(a)(i), 498ZZJ(1)(c) and 498ZZM(a) of the Residential Tenancies Act 1997, and section 128(c) of the Supported Residential Services (Private Proprietors) Act 2010. Note that the reconstruction does not extend to all references to “principal registrar” in those Acts; it is confined to the sections listed. This is a critical limitation. The Schedule itself lists the specific provisions under which the delegated function arises: for example, issuing a warrant under section 351(1) of the Residential Tenancies Act 1997 or notifying the sheriff under section 359. Each item is self-contained. The descriptions in column 2 are for reference only and do not have operative legal effect; only column 1 and column 3 matter.

The direct effect is on the operational staff of VCAT and the Magistrates’ Court. VCAT’s principal registrar is no longer the sole officer who can issue warrants of possession or sign them in substituted proceedings that involve residential tenancy or supported residential services matters. Instead, the principal registrar of the Magistrates’ Court, and any registrar of the Magistrates’ Court, can perform those tasks. This means that a landlord or a supported residential services proprietor who obtains a possession order from VCAT in a federal jurisdiction matter can take the sealed order to a Magistrates’ Court registry (or possibly have it processed there) to obtain a warrant, without needing to wait for VCAT’s restricted office hours or locations. The practical burden shifts to Magistrates’ Court registry staff, who must be trained to handle warrant issuance under the Residential Tenancies Act 1997 and the Supported Residential Services (Private Proprietors) Act 2010 in the specific context of VCAT substituted proceedings. The regulations also affect tenants and residents subject to possession orders. For them, the relevance is that the person signing the warrant may be a Magistrates’ Court registrar rather than a VCAT registrar. That should not change the legal validity of the warrant, but it may affect the point of contact for queries or challenges about the warrant’s correctness. Legal practitioners who act for landlords or tenants in federal jurisdiction residential tenancy matters need to know that they can approach the Magistrates’ Court for warrant issuance, not just VCAT. This may speed up enforcement but could also cause confusion if a registry is unfamiliar with the distinction between ordinary Magistrates’ Court tenancy proceedings and VCAT substituted proceedings. The Victorian Equal Opportunity and Human Rights Commission may also be affected: under Schedule 1, item 7, notification of an interim order application under the Equal Opportunity Act 2010 must be given to the Commission by the principal registrar of the Magistrates’ Court or a registrar. That means the Commission will receive notifications from a different source. The Director (presumably the Director of Housing or a similar official) under the Residential Tenancies Act will receive investigation reports from Magistrates’ Court officers rather than VCAT registrars. The change is purely administrative, but it creates a need for inter-agency coordination and data sharing so that the correct officer receives correspondence.

The Regulations impose no new duties on parties to proceedings. The duties created are internal to the court system. The principal duty is on the designated Magistrates’ Court officers to exercise the functions and powers set out in Schedule 1 in accordance with the relevant enabling enactment. For example, when issuing a warrant of possession under section 351(1) of the Residential Tenancies Act 1997, the officer must be satisfied that the conditions in that section are met (the order has been made, the period for possession has expired, etc.). The Regulations do not relax those conditions; they merely identify who may perform the act. There is a duty on VCAT and the Magistrates’ Court to ensure that the flow of information about substituted proceedings is sufficient for the Magistrates’ Court officer to know whether a function is properly exercisable. Since Schedule 1 only applies to “substituted proceedings under Part 3A of the Act”, the officer must know that the proceeding is indeed a substituted proceeding. That is a potential source of error if the originating court’s file marking is unclear. The reconstruction of references in regulation 6 gives Magistrates’ Court officers the right to be treated as if they were the principal registrar of VCAT for the limited purposes of the specified sections. This means their actions are deemed valid for the purposes of those sections, regardless of any internal VCAT staffing rules. Conversely, parties have a right to rely on a warrant signed by a Magistrates’ Court registrar as if it were signed by VCAT’s principal registrar. This removes any technical objection that might otherwise arise based on the identity of the signatory. The Regulations do not confer a right to choose which officer processes a warrant. The decision as to which registry handles the function is likely to be a matter of internal court allocation. The notification duties under items 7, 8, 9, and 10 of Schedule 1 require the Magistrates’ Court officer to inform the Victorian Equal Opportunity and Human Rights Commission, the Director, or the Residential Tenancies Bond Authority, as the case may be. If the officer fails to notify, there is no private right of action under these Regulations; the remedy would be an application to the tribunal to direct compliance. Item 11 allows a Magistrates’ Court officer to amend an application in a residential tenancy proceeding under the Residential Tenancies Act 1997 before it is heard. This power is significant because it can change the scope of the proceeding without the tribunal member’s involvement. However, the officer must act in accordance with any rules or directions of VCAT, and the power is limited to proceedings under the Residential Tenancies Act 1997 in substituted proceedings. It does not extend to other types of federal jurisdiction matters.

The Regulations do not create any penalties. They are a subordinate instrument that delegates administrative functions, and they do not contain offence provisions or civil penalty units. Enforcement of the underlying Acts (e.g., Residential Tenancies Act 1997, Supported Residential Services (Private Proprietors) Act 2010) is unaffected. If a Magistrates’ Court officer exercises a power outside the scope of Schedule 1, for example by issuing a warrant when the proceeding is not a substituted proceeding, the warrant may be invalid. The Regulations do not provide a safe harbour for errors of jurisdiction. The proper remedy for an affected party would be to apply to VCAT to set aside the warrant for irregularity. The Victorian Civil and Administrative Tribunal Act 1998 contains its own enforcement provisions for warrants and orders, and those continue to apply. The Regulations do not alter the sheriff’s power to execute warrants; notification to the sheriff under section 359 of the Residential Tenancies Act 1997 will now come from a Magistrates’ Court officer, but that should not affect the sheriff’s duty. If a Magistrates’ Court officer fails to perform a function properly, there is no specific penalty under these Regulations. Internal disciplinary procedures under the Magistrates’ Court Act 1989 or the Public Administration Act 2004 would apply. Similarly, if an officer refuses to exercise a delegated power, there is no direct recourse under these Regulations; a party would need to seek an order from VCAT compelling performance. The sunset provision (regulation 3 read with the endnote) means the Regulations expire on 23 November 2031. After that date, the powers revert to VCAT’s principal registrar unless new regulations are made. There is no transitional provision for warrants issued before the sunset; they would likely remain valid but new functions cannot be exercised. The absence of penalty provisions is typical for machinery regulations; the focus is on enabling, not punishing. However, it also means there is no explicit deterrent against an officer exceeding authority. The existing law of judicial review (e.g., certiorari for jurisdictional error) would be the primary check.

The Regulations sit within a legislative framework that includes the Victorian Civil and Administrative Tribunal Act 1998 (the Act), the Magistrates’ Court Act 1989, the Residential Tenancies Act 1997, the Supported Residential Services (Private Proprietors) Act 2010, and the Equal Opportunity Act 2010. The key interaction is with Part 3A of the Act, which governs the exercise of federal jurisdiction by VCAT. Section 161 of the Act is the enabling provision that allows regulations to prescribe functions that may be exercised by officers of the Magistrates’ Court for the purposes of Part 3A. Without that provision, these Regulations would be ultra vires. The reconstruction of references in regulation 6 modifies the meaning of “principal registrar” in the specified sections of the Residential Tenancies Act 1997 and the Supported Residential Services (Private Proprietors) Act 2010. This is a form of indirect amendment, but it does not repeal or alter any substantive provision. The Regulations do not affect the operation of the Magistrates’ Court Act 1989 except to the extent that its officers are given additional functions. Those officers remain subject to the duties and immunities of that Act. For example, a registrar issuing a warrant under Schedule 1 is still acting as a registrar for the purposes of the Magistrates’ Court Act 1989, which means protections for judicial acts may apply. The Equal Opportunity Act 2010 is touched by item 7 of Schedule 1: notification of an interim order application must be given to the Victorian Equal Opportunity and Human Rights Commission. That obligation already existed under clause 16(1) of Schedule 1 to the Act; the Regulations simply allocate the task to Magistrates’ Court officers. There is no conflict. The Supported Residential Services (Private Proprietors) Act 2010 has its own warrant provisions for removal of residents. Item 6 of Schedule 1 allows a Magistrates’ Court officer to issue a warrant to remove a resident under section 129(1) of that Act. This is analogous to the residential tenancy warrant but arises in a different statutory regime. Practitioners must be careful not to confuse the two. The Regulations also interact with the Subordinate Legislation Act 1994. They were subject to scrutiny under that Act, and the endnote states they will sunset after 10 years. This sunset clause is a standard feature of Victorian subordinate legislation to ensure periodic review. Finally, the Regulations do not interact with federal laws directly; they only concern state officers exercising functions under state enabling enactments in the context of federal jurisdiction conferred on VCAT. The Judiciary Act 1903 (Cth) and cross-vesting schemes are relevant to how VCAT acquired federal jurisdiction, but the Regulations do not address that.

As at the version date (29 November 2021, being the commencement date), there have been no amendments to the Victorian Civil and Administrative Tribunal (Federal Jurisdiction Matters) Regulations 2021. The Table of Amendments in Endnote 2 is blank. The Endnote 3 states that there are no amendments not in operation. This means the Regulations are in their original form. They were made on 23 November 2021 and commenced on 29 November 2021. The instrument has a single version number (001). Given the narrow and technical subject matter, amendments are unlikely unless Part 3A of the Act is amended to expand or contract the categories of substituted proceedings, or if the list of sections in regulation 6 becomes outdated due to amendments to the Residential Tenancies Act 1997 or the Supported Residential Services (Private Proprietors) Act 2010. If those Acts are amended and section numbers change, the Regulations would need to be updated by statutory rule to reflect the new references. The absence of amendment history to date suggests that the instrument has been stable and uncontroversial. The sunset date of 23 November 2031 also provides a natural end point, after which the government must decide whether to remake or let expire. Practitioners should monitor the Victoria Government Gazette or the Victorian Legislation website for any future amendments, particularly if the Residential Tenancies Act 1997 is amended frequently (as it has been in recent years). The Regulations reference specific section numbers, so any renumbering would break the reconstruction of references. There is no provision for automatic substitution of references, so an amendment would be necessary. The lack of amendment is a double-edged sword: it provides certainty, but it also means the instrument may become outdated if Acts are amended without corresponding changes to the Regulations.

There is no litigation history associated with these Regulations that is publicly reported. They came into force on 29 November 2021 and have not been the subject of any judicial consideration or challenge. This is unsurprising given their purely administrative character. Challenges could arise if an affected party argues that a warrant issued by a Magistrates’ Court officer is invalid because the officer lacked jurisdiction or because the proceeding was not a substituted proceeding. Such a challenge would likely be brought in VCAT or the Supreme Court of Victoria (judicial review). To date, no reported decisions mention these Regulations. The absence of litigation does not mean there have been no compliance issues; it may simply reflect that the machinery is working as intended or that any disputes have been resolved without publication. The Regulations do not create private rights, so a party cannot sue for breach of the Regulations themselves. However, if a Magistrates’ Court officer acts outside the scope of Schedule 1, the underlying administrative act (e.g., issuing a warrant) may be challenged for jurisdictional error. For example, if an officer issues a warrant under section 351(1) of the Residential Tenancies Act 1997 in a proceeding that is not a substituted proceeding under Part 3A, the warrant could be set aside. The Regulations do not provide an ouster clause, so ordinary judicial review principles apply. Another potential litigation scenario involves the reconstruction of references in regulation 6. If a court or tribunal is asked to interpret the phrase “principal registrar” in a context where the Regulations apply, it may need to determine whether the Magistrates’ Court officer is included. The regulation is clear, but ambiguity could arise if the proceeding is not clearly flagged as a substituted proceeding. The Victorian Civil and Administrative Tribunal itself may need to rule on the validity of a warrant if a tenant challenges enforcement. Cases like Director of Housing v S (2010) or similar may provide analogies, but they are not mentioned in the source. Since the source is the Regulations themselves, we can only note the potential for future litigation, not any decided cases.

The first gotcha is that the Regulations apply only to substituted proceedings under Part 3A of the Act. If a residential tenancy proceeding is not a substituted proceeding , for example, if it is a purely state matter , the Magistrates’ Court officer cannot exercise the functions in Schedule 1. The officer must verify the proceeding type before acting. The onus is on the registry to check, but if they do not, the warrant may be void. Parties cannot assume that every VCAT residential tenancy warrant can be issued by a Magistrates’ Court officer. Second, the reconstruction of references in regulation 6 is limited to the sections listed in subregulation (2). There are many other sections in the Residential Tenancies Act 1997 that refer to “principal registrar” (e.g., sections dealing with bonds, notices, or orders) that are not covered. For those sections, the term still means VCAT’s principal registrar only. A Magistrates’ Court officer cannot, for example, accept a bond lodgment or issue a compliance notice under those other sections. The list is exhaustive. Third, Schedule 1 does not include all functions of VCAT’s principal registrar. Functions such as receiving applications, granting extensions of time, or making administrative orders are not delegated. This means a party cannot go to the Magistrates’ Court to file a new application or to seek a variation of an order; those remain with VCAT. Fourth, the descriptions in column 2 of Schedule 1 are for reference only and do not limit the function. The actual function is defined by the provision in column 1. For example, item 3 says “Notification to sheriff after a warrant of possession is returned”. The source power is section 359 of the Residential Tenancies Act 1997, which may impose conditions on the notification. The officer must comply with that section, not merely with the description. Fifth, the Regulations do not address the situation where a Magistrates’ Court officer is also a party or has a conflict of interest. The general law on bias would apply, but there is no specific recusal provision. Sixth, the sunset date of 23 November 2031 means that after that date, the delegation lapses. Practitioners with long-running matters should be aware that by then, the designated officer may change. Seventh, the definition of “officer” includes magistrates and judicial registrars, but the Schedule only lists the principal registrar or a registrar. A magistrate who is not a registrar cannot exercise the functions in the Schedule. This may cause confusion if a party asks a magistrate to sign a warrant in chambers. Eighth, the Regulations do not provide a mechanism for review of an officer’s decision. If a registrar refuses to issue a warrant, the party must go back to VCAT. There is no appeal to the Magistrates’ Court. Finally, the Regulations are made under section 161 of the Act, which requires consistency with the Act and any rules. If the Act is amended to restrict federal jurisdiction, the Regulations may become inoperative. Practitioners should check the current version of Part 3A before relying on the delegation.

For VCAT’s principal registrar and staff: ensure that the list of substituted proceedings is clearly identified and that case files are marked to indicate that the matter is a Part 3A federal jurisdiction proceeding. When a warrant needs to be issued, or a notification made, the file should be transferred or made accessible to the Magistrates’ Court registry before the function is exercised. VCAT should also train its staff to refer requests for warrants to the correct registry. For Magistrates’ Court officers (principal registrar and registrars): before exercising any function in Schedule 1, confirm that the proceeding is a substituted proceeding. This may require checking the originating order or a certificate from VCAT. Do not assume that all VCAT tenancy application files are substituted proceedings. Maintain a log of each function exercised, the date, the item number, and the file reference. This will assist in auditing and in defending any challenge. For legal practitioners acting for landlords, tenants, or residents: when seeking a warrant of possession or removal in a VCAT matter, inquire whether the proceeding is a substituted proceeding. If it is, you may attend the Magistrates’ Court registry to obtain the warrant. If the registry staff are uncertain, direct them to the Regulations and Schedule 1. If you are a tenant or resident subject to a warrant, check who signed it. If it was signed by a Magistrates’ Court officer, verify that the proceeding was indeed a substituted proceeding. If you believe it was not, you can apply to VCAT to set the warrant aside. For legal practitioners in equal opportunity matters: when an interim order application is made under section 121 of the Equal Opportunity Act 2010 in a substituted proceeding, notification to the Commission will be made by a Magistrates’ Court officer. Ensure the Commission receives the notification promptly; if it does not, follow up with VCAT. For VCAT registry staff handling federal jurisdiction matters: update standard operating procedures to reflect that for the specific functions (issue of warrant, signature, notification, referral, amendment), the designated officer is now a Magistrates’ Court officer. Do not perform those functions yourself unless the matter is not a substituted proceeding. If a party insists on VCAT handling it, explain that the Regulations require the Magistrates’ Court to act. For compliance officers within the Department of Justice and Community Safety: monitor the sunset date (23 November 2031) and begin a review process at least 12 months before expiry to decide whether to remake, amend, or let expire. In the meantime, check for any amendments to the Residential Tenancies Act 1997 or Supported Residential Services (Private Proprietors) Act 2010 that change the section numbers listed in regulation 6; if so, recommend a corrective regulation. Finally, for all users: the Regulations do not impose any filing fees or forms. They are purely about who performs the act, not how. Follow the normal procedures under the Residential Tenancies Act 1997 or the relevant enabling enactment for the underlying function. The only change is the identity of the officer. If in doubt, contact VCAT’s principal registrar for a direction.