Victorian Civil and Administrative Tribunal (Oath and Affirmation of Office) Regulations 2023

The Regulations are short and conceptually narrow. The principal concepts that govern their operation are: prescription of form, manner of administration, and legal provenance.

• Prescription of form: The Regulations prescribe the exact wording for both an oath and an affirmation for non-judicial VCAT members (Regulation 5(1); Schedule). The Schedule provides two alternative texts, one religious (oath) and one secular (affirmation). The oath contains an express option for the swearer to “swear by Almighty God” or to “name a god recognised by the person’s religion” (Schedule, Oath). The affirmation substitutes a statement of solemn declaration without religious language (Schedule, Affirmation).

• Manner of administration: The Regulations specify who must administer the oath or affirmation: a “presidential member” of the Tribunal (Regulation 5(2)). The term “presidential member” is used in the Regulations as the authorised administrator; the document does not define that term further (Regulation 5(2)).

• Legal provenance and reference points: The Regulations are made under the delegated power in section 161 of the VCAT Act (Regulation 2). They operate “for the purposes of section 16(4) of the VCAT Act” in prescribing the form (Regulation 5(1)), which establishes the link between the subordinate instrument and a named provision of the enabling Act. The instrument also revokes a prior subordinate instrument (Regulation 4).

• Interpretive effects recorded in the Endnotes: The Endnotes include standard interpretive statements drawn from the Interpretation of Legislation Act 1984 that form part of the instrument’s explanatory material. Those statements describe that headings, examples, punctuation and provision numbers in a Statutory Rule made on or after 1 January 2001 form part of the rule (Endnotes, “Interpretation”). That means the Schedule’s headings and punctuation are to be treated as parts of the Regulation for interpretive purposes. The Endnotes also note the statutory sunset date set by the Subordinate Legislation Act 1994 (Endnotes).

Conceptually, the Regulations do not attempt to define the substantive powers, tenure, removal processes, or qualifications of non-judicial members. They restrict themselves to the formal act of taking office: the words spoken and the person authorised to administer them.

The Regulations identify two classes of persons directly affected by their prescriptions.

• Non-judicial members of VCAT: The primary class affected are “non-judicial members” of the Tribunal. The Regulations explicitly prescribe an oath or affirmation “for a non-judicial member” (Regulation 5(1); Schedule). The text requires that, for the purposes of the referenced provision of the VCAT Act, this is the prescribed form. The instrument therefore binds the form of what non-judicial members must say when taking office insofar as the enabling legislation permits subordinate rules about that form.

• Presidential members of VCAT: The Regulations impose a function on “a presidential member” by requiring that a presidential member administer the oath or affirmation to non-judicial members (Regulation 5(2)). That places a procedural responsibility on the limited category of presidential members to perform the formal administration. The Regulations do not define the term “presidential member,” nor do they expand the duties beyond administration of the oath or affirmation.

Indirectly affected actors include Tribunal administrators and registrars, because the Regulations set a procedural requirement that will interact with induction, scheduling and recordkeeping processes for new non-judicial members. The Regulations are silent on how administration is to be recorded, what proof is to be retained, how the ceremony is to be scheduled, or whether a proxy or delegate may act for a presidential member. Those operational gaps mean registrars and administrative staff will need to design processes to give effect to the requirement.

Other parties not mentioned in the Regulations remain unaffected by the text of the instrument itself. The Regulations do not purport to change the substantive adjudicative powers of members, their remuneration, tenure, eligibility, or removal; nor do they impose obligations on litigants or the public. The only specified interaction with external law is through the enabling power in the VCAT Act and the interpretive effects noted in the Endnotes relating to the Interpretation of Legislation Act 1984 and the Subordinate Legislation Act 1994 (Regulation 2; Endnotes).

The Regulations centrally prescribe the wording that expresses duties expected of non-judicial members when assuming office. The instrument does not create or enumerate separate statutory rights or enforceable duties beyond that wording, but the Schedule’s text is the operative statement of the professional duties the oath or affirmation commits a member to perform in words.

• The textual duty: Both the oath and the affirmation require a commitment to “do equal justice to all persons” and to “discharge the duties of my office according to law and to the best of my knowledge and ability without fear, favour or affection” (Schedule, Oath and Affirmation). Those are the precise words the Regulations prescribe as the public declaration by which non-judicial members assume their roles (Regulation 5(1); Schedule).

• Method of declaration: The Regulations give the person taking office the choice between the religious oath or the secular affirmation. The religious option allows either swearing by “Almighty God” or naming “a god recognised by the person’s religion” (Schedule, Oath). The affirmation is a non-religious “solemnly and sincerely declare and affirm” formula (Schedule, Affirmation). The choice between the two is therefore a right of the individual member to select the form consonant with their beliefs; the Regulations embody both options as prescribed forms.

• Administration: The Regulations impose the duty to perform the administration on a presidential member (Regulation 5(2)). That is a procedural duty in respect of the ceremony or act by which the member expresses the prescribed commitment. The Regulations do not place any additional duties on the presidential member beyond administering the oath or affirmation in the manner and with the wording given.

• Rights and omissions: The Regulations do not expressly create enforceable rights for third parties to require that an oath or affirmation be administered in a particular way, nor do they provide for civil remedies, invalidity or consequences if the prescribed form is not followed. The instrument is silent about the legal consequences of a deviation from the prescribed form, or whether non-compliance affects the validity of appointment. Similarly, the Regulations do not specify recordkeeping, witness signatures, or public disclosure requirements. Those matters, if relevant, would arise from the enabling Act or from administrative practice rather than from the Regulations themselves. The text explicitly links the prescription to section 16(4) of the VCAT Act (Regulation 5(1)), which suggests the prescribed form operates to satisfy a statutory requirement in the Act, but the Regulations do not set out the corollary rights or remedies tied into that statutory provision.

• Interpretive status of wording and headings: The Endnotes state that headings, punctuation and other inserted material in a Statutory Rule made after 1 January 2001 form part of the rule (Endnotes, “Interpretation”). That affects how courts or administrators will treat the Schedule’s headings and punctuation when construing the required forms. Additionally, the Endnotes treat notes and examples as part of the instrument where applicable. The Schedule’s wording and structure therefore have interpretive force in the regulation.

In sum, the Regulations prescribe a public commitment of duties in specified words, allow a personal choice between religious or secular form, and allocate the administrative duty of administering that commitment to a presidential member. The Regulations are silent about the legal effects of non-compliance and about ancillary administrative processes.

The Regulations contain no express penalty provisions, offence clauses, or enforcement mechanisms. The text does not provide fines, enforcement procedures, or transitional enforcement provisions. The instrument is limited to prescribing wording and the person who must administer the oath or affirmation (Regulation 5(1) and (2); Schedule).

Consequently, enforcement of the form and manner specified by the Regulations must be derived from other legal sources if there is to be any legal consequence for non-compliance. The Regulations point to section 16(4) of the VCAT Act by way of purpose (Regulation 5(1)), but they do not themselves stipulate what happens if the prescribed form is not used. The Revocation clause removes the 2013 regulations and replaces the prescription, but it contains no transitional enforcement provisions or savings clauses (Regulation 4). The Endnotes identify the enabling power as section 161 of the VCAT Act (Regulation 2; Endnotes), and matters of consequence for non-compliance would therefore more likely be governed by the enabling Act or by general administrative law principles rather than by the Regulations.

There is no provision in the Regulations for monitoring, reporting or auditing compliance with the prescribed wording. There is also no statutory obligation contained in the Regulations for the Tribunal to maintain records of oaths or affirmations taken, nor to publish or otherwise make those records available. The administrative duty to administer the oath or affirmation is assigned to a presidential member (Regulation 5(2)), but the Regulations do not create a statutory enforcement mechanism that a presidential member must use to ensure compliance.

Because the Regulations are silent on penalties and enforcement, any consequences of failing to adhere to the statutory form will depend on interpretation of the enabling Act and on administrative practice. The Endnotes indicate the Regulations will sunset under the Subordinate Legislation Act 1994 after 10 years (Endnotes), but the sunset is a temporal expiry rather than an enforcement mechanism for compliance.

The Regulations are a subordinate instrument made under the enabling Act and therefore interact principally with the Victorian Civil and Administrative Tribunal Act 1998 and the statutory interpretation and subordinate legislation regimes described in the Endnotes.

• Enabling Act relationship: The Regulations are made under section 161 of the VCAT Act (Regulation 2). They state they prescribe the form for the purposes of section 16(4) of the VCAT Act (Regulation 5(1)). The Regulations do not purport to amend, displace or restate section 16(4); rather, they supply the prescribed wording to satisfy a requirement found in the Act. The text therefore operates as a delegated prescription under the parent Act.

• Revocation of prior subordinate instrument: The Regulations revoke the earlier Oath and Affirmation Regulations 2013 (Regulation 4). That means the 2013 instrument is no longer in force, and the current 2023 Regulations replace that prior form and manner. The Revocation clause does not, however, contain express savings or transitional provisions for oaths already taken under the 2013 instrument; any transitional legal effect would have to be inferred from the general law or the enabling Act.

• Interpretation of Legislation Act 1984 (ILA) effects: The Endnotes reproduce several interpretive rules drawn from amendments to the ILA, including that headings, punctuation, examples and provision numbers in a Statutory Rule form part of the Statutory Rule and alter interpretation (Endnotes, “Interpretation”). That means, for example, that the Schedule heading “OATH OF OFFICE” and “AFFIRMATION OF OFFICE” and the punctuation within the Schedule can be treated as part of the legal prescription. The Endnotes also note amendments about how inserted subregulations are numbered. Those interpretive notes are important when reading the Regulations alongside other instruments.

• Subordinate Legislation Act 1994 interaction: The Endnotes state that the Regulations will sunset 10 years after the day of making under section 5 of the Subordinate Legislation Act 1994 (Endnotes). That places a time-limited operation on the instrument unless re-made or otherwise extended in accordance with that Act. The sunset is statutory and applies regardless of the substantive content of the Regulations.

• Absence of cross-references to other procedural or evidentiary regimes: The Regulations do not reference procedural rules about recordkeeping, attendance, delegation, remote administration, or the evidentiary status of the oath or affirmation. They therefore leave those operational interactions to other statutory provisions, Tribunal practice directions, or administrative arrangements. Because the instrument is silent on consequences of non-compliance, interplay with broader administrative law remedies and the enabling Act will govern any dispute about validity or effect.

• No penalties or offences inserted into other Acts: The Regulations do not insert penalty clauses into the enabling Act or create new offences in other statutes. Their interaction with criminal or disciplinary regimes is therefore indirect and dependent on the enabling Act and on standard administrative or disciplinary mechanisms outside the text of the Regulations.

The Regulations record no amendments since their making. The Table of Amendments section in the Endnotes states that there are no amendments made to these Regulations by statutory rules, subordinate instruments or Acts (Endnotes, “Table of Amendments”). The instrument itself is Version No. 001 as at 22 April 2023.

Key dates are recorded in the Endnotes and in the regulation text:

• Made: 28 March 2023, by the Governor in Council under section 161 of the VCAT Act (Endnotes).

• Commencement: The Regulations came into operation on 22 April 2023 (Regulation 3; Endnotes).

• Revocation of previous instrument: The Regulations expressly revoke the Victorian Civil and Administrative Tribunal (Oath and Affirmation of Office) Regulations 2013 (Regulation 4), citing the earlier instrument S.R. No. 45/2013 in the Explanatory Details (Endnotes). The revocation is categorical; no saving clauses are included in the text.

• Sunset: The Endnotes record that the new Regulations will sunset 10 years after the day of making, that is, 28 March 2033, under section 5 of the Subordinate Legislation Act 1994 (Endnotes). That temporal limitation applies to the instrument in its present form unless re-enacted or extended by further legislative action.

There is no history of amending instruments, and the Table of Amendments confirms there have been none. The Explanatory Details note the earlier instrument that was revoked, but the text does not provide a comparative table of changes between the 2013 and 2023 forms. The absence of amendments since commencement indicates the Regulations have remained stable in wording and operation since 22 April 2023.

The Regulations contain no recorded litigation history. The Endnotes and Table of Amendments do not list any cases, challenges, or judicial consideration of the Regulations. There are no references within the instrument to preceding judicial interpretations or to any proceedings concerning the form or administration of the oath or affirmation.

Because the instrument is a subordinate regulation limited to prescribing form, it is conceivable that disputes arising from non-compliance could become the subject of judicial review or other litigation. However, the Regulations contain no record of such litigation and make no provision for litigation procedure, remedies or rights of review within their text. The instrument therefore stands on its face as a rule about wording and administration without any documented adversarial testing recorded in the Endnotes.

The Endnotes indicate the formal making and commencement dates (made 28 March 2023; commenced 22 April 2023) and record that the Regulation is Version No. 001 as at 22 April 2023 (Endnotes). They do not identify any case law, court determinations, or tribunal decisions that have interpreted or applied the Regulations. Any future litigation that engages the wording or the procedural requirement to have a presidential member administer the oath or affirmation would be in the broader context of the VCAT Act and general administrative law; the Regulations themselves contain no litigation record.

The Regulations are concise, which creates a handful of practical and legal “gotchas” that administrators and practitioners need to notice because the text is silent or precise in ways that can produce operational friction.

• Exact wording is prescribed: For the purposes of section 16(4) of the VCAT Act the exact wording in the Schedule is “the prescribed form” (Regulation 5(1); Schedule). That leaves little room for variation in ceremony wording if the relevant statutory requirement is interpreted to require exact adherence. The Endnotes emphasise that headings and punctuation form part of the Statutory Rule (Endnotes, “Interpretation”), so even minor textual differences could be material for interpretive purposes.

• Administration limited to presidential member: The requirement that a presidential member administer the oath or affirmation (Regulation 5(2)) imposes a single-person class to perform the admin function. The Regulations do not permit delegation, do not specify substitution, and do not provide what happens if no presidential member is available. That can create a practical bottleneck at times where scheduling or absence of presidential members occurs. The text is silent on whether a presidential member may authorise another to act on their behalf, or whether the administration may be done remotely.

• Silence on records and proof: The Regulations do not prescribe recordkeeping, evidence of swearing/affirmation, signing or countersigning requirements, or publication of the oath or affirmation. Practitioners will need to ensure Tribunal practice provides a reliable administrative record because the Regulations themselves provide no mechanism for proving that an oath or affirmation was taken in the prescribed form.

• No stated consequences for non-compliance: The Regulations do not specify whether non-compliance with the prescribed form affects the validity of appointment, the exercise of Tribunal powers, or civil liability. The absence of an express consequence means disputes will turn to the enabling Act or general law to determine effects.

• Choice between religious oath and secular affirmation: While the Schedule provides both an oath and an affirmation, the religious wording includes an option to “name a god recognised by the person’s religion” (Schedule). The form therefore permits non-Christian monotheistic alternatives but does not elaborate on other religious permutations or allow for alternative wording beyond those two texts. The precise scope of permissible variation will depend on administrative practice and possibly later interpretive guidance.

• Revocation of previous instrument without transitional text: The Regulations revoke the 2013 instrument (Regulation 4) but do not include express transitional provisions preserving oaths taken under the old instrument or clarifying whether earlier formats remain valid. That could have practical implications for recordkeeping or for legal arguments about the continuity of appointments if the exact form is later contested.

• Temporal expiry: The instrument is subject to sunset 10 years after making (Endnotes), which means that unless re-enacted the prescription will lapse. Practices and templates that are built around these Regulations should account for that statutory expiry and any changes expected at sunset.

• Interpretive particulars form part of the rule: The Endnotes draw attention to the ILA-based rules that headings, punctuation and examples form part of the Statutory Rule (Endnotes). That increases the importance of careful reproduction of the Schedule and is a gotcha for those who might treat headings or punctuation as mere formatting.

• No fees, no ancillary obligations: The Regulations do not create payable obligations nor require procedural costs to be met by members or the public. The silence on administrative costs is not the same as a guarantee that no costs will be incurred in practice; Tribunal administration may choose to record or publicise oaths at administrative cost, but such costs are not imposed by the Regulations themselves.

Those practical points follow directly from the limited and prescriptive nature of the text. Administrators and practitioners should take the Regulations at face value and design Tribunal induction and documentation practices to align with the textual prescriptive requirements.

The Regulations set a narrow compliance checklist. Compliance requires attention to three basic elements: the person taking the oath/affirmation, the exact wording used, and the administrator who administers the oath/affirmation.

1. Use the prescribed wording. For the purposes of section 16(4) of the VCAT Act the oath or affirmation must be the text set out in the Schedule (Regulation 5(1); Schedule). That means when a non-judicial member takes an oath or affirmation for the purposes of that provision the exact Schedule wording should be used. Practically, compliance will involve reproducing the Schedule’s words verbatim on any induction documentation, in minutes, or on an oath/affirmation certificate.

2. Allow the person to choose oath or affirmation. The Regulations present two alternatives. Ensure the incoming non-judicial member is given the choice between the oath and the affirmation and, if choosing the oath, the opportunity to “swear by Almighty God” or to name a god recognised by the person’s religion as the Schedule allows (Schedule). Document which form was chosen and the exact words used.

3. Ensure a presidential member administers the oath or affirmation. The Regulations require that the administering officer be a presidential member of the Tribunal (Regulation 5(2)). To comply, the Tribunal should schedule a presidential member to conduct the administration. If a presidential member is not available, the regulation contains no delegation mechanism; proceed only after confirming a presidential member can perform the act or after seeking administrative guidance from the Tribunal’s governance office.

4. Record the administration, though the Regulations do not require a specific form of record. The Regulations are silent on recordkeeping; therefore create an administrative practice note that records: the name of the non-judicial member, the date and place of administration, the text used (oath or affirmation), the name and role of the presidential member who administered it, and any witnesses. Keep a stored certificate or minute that reproduces the Schedule wording used.

5. Reproduce the Schedule headings and punctuation. The Endnotes make clear that headings and punctuation form part of the Statutory Rule for interpretive purposes (Endnotes, “Interpretation”). When copying or using the form, ensure the headings “OATH OF OFFICE” and “AFFIRMATION OF OFFICE” and the punctuation and bracketed instructions are preserved where relevant for interpretive fidelity.

6. Account for the sunset date in planning. Because the Regulations will sunset 10 years after the day of making (Endnotes), ensure that templates, policy documents, and internal governance materials identify the sunset date (28 March 2033) and provide for review or re-enactment prior to expiry.

7. Avoid unapproved textual variations. Because the Regulations prescribe the form, resist informal amendments to the wording for ceremonial or organisational preferences. If a variation is necessary for a compelling reason, obtain legal advice on whether the departure is permissible in the context of the enabling Act and administrative practice.

8. Check the enabling Act for ancillary requirements. The Regulations operate “for the purposes of section 16(4) of the VCAT Act” (Regulation 5(1)). There may be additional procedural or substantive requirements in the VCAT Act that interact with the oath or affirmation requirement. Although the Regulations do not restate those requirements, practitioners should consult the enabling Act to ensure full compliance with statutory prerequisites associated with appointment and assumption of office.

Following these steps aligns administrative practice with the literal prescriptions of the Regulations. Because the Regulations do not prescribe recordkeeping, delegation, or consequences of non-compliance, Tribunal administrators should adopt internal procedures that create clear, auditable evidence that the prescribed form was used and that the administration was performed by a presidential member.