Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards (Prescribed Public Entities) Regulations 2021

The Regulations operate by reference to a small number of foundational concepts taken from the Act and other statutes. The primary concept is "prescribed public entity", a status that determines whether an entity falls within the Act's regulatory regime. The Regulations define their reference to the Act by setting out that "the Act" means the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019 (Reg 4). They also rely on the statutory definition of "public entity" found in section 3 of the Act, which the Regulations note adopts the meaning of that term in the Public Administration Act 2004 (Reg 5 note).

The operational rule in Reg 5 is a presumption of inclusion: every public entity is a prescribed public entity except for specific exceptions. That presumption is the most important concept to track: if an organisation is a "public entity" under the Act and not caught by an exclusion, it is treated as prescribed. The listed exclusions are categorical and rely on cross-references to other statutes, so the concept of "exclusion by reference" is central. Examples:

• Exclusions by sectoral definition: public hospitals and public health services are excluded by reference to the Health Services Act 1988 (Reg 5(1)(a)), and ambulance services by reference to the Ambulance Services Act 1986 (Reg 5(1)(b)). The Regulations do not redefine those terms; they point to the definitions already in those Acts.

• Exclusions by entity continuation: the Victorian Institute for Forensic Mental Health is excluded by reference to its continuation under s 328 of the Mental Health Act 2014 (Reg 5(1)(c)).

• Exclusions by specific statutory entity type: school councils are excluded by reference to the Education and Training Reform Act 2006 (Reg 5(1)(d)).

• Exclusions by composition and financial threshold: certain committees of management under the Crown Land (Reserves) Act 1978 are excluded only if they consist of members appointed under s 14(4)(a) of that Act and have annual income not exceeding $1,000,000 (Reg 5(1)(e)). This introduces a compound concept that combines appointment source and an income test.

• Targeted corporate carve outs: the 2023 amendment inserts SEC Victoria Pty Ltd by ACN and its subsidiaries as exclusions (Reg 5(1)(da) and (db)). The use of an ACN and the word "subsidiary" creates a corporate‑form concept that will be interpreted by reference to corporate law or accepted definitions, though the Regulations do not themselves define "subsidiary".

Another device used is a clarificatory negative statement: Reg 5(2) clarifies that the Government teaching service under Part 2.4 of the Education and Training Reform Act 2006 is not a prescribed public entity. In short, the Regulations are a statutory mapping rule that connects the Act's coverage to the broader Victorian public sector by setting an inclusion default and narrow, enumerated exceptions. The Regulations do not explicate the substantive content of the Act's obligations, nor do they supply definitions beyond defining "the Act".

The Regulations affect entities that are "public entities" as that term is defined in section 3 of the Act by reference to the Public Administration Act 2004. The default position in Reg 5(1) is inclusion: unless an entity falls within one of the specified exceptions, it will be a prescribed public entity for the purposes of the Act. In practice this means a broad set of Victoria's public sector bodies are captured unless carved out.

Specific groups excluded by the Regulations are:

• Public hospitals, multi‑purpose services and public health services within the meaning of the Health Services Act 1988 (Reg 5(1)(a)). Entities operating under or constituted by that Act therefore do not become prescribed public entities under these Regulations.

• Ambulance services as defined in the Ambulance Services Act 1986 (Reg 5(1)(b)).

• The Victorian Institute for Forensic Mental Health as continued under s 328 of the Mental Health Act 2014 (Reg 5(1)(c)).

• School councils within the meaning of the Education and Training Reform Act 2006 (Reg 5(1)(d)).

• Committees of management (incorporated or unincorporated) appointed under s 14(1) or (2) of the Crown Land (Reserves) Act 1978, provided two conditions are met: the committee consists of members appointed under s 14(4)(a) and the committee has annual income not exceeding $1,000,000 (Reg 5(1)(e)). That exclusion therefore affects a subset of committees of management determined by appointment source and a financial threshold.

• SEC Victoria Pty Ltd ACN 670 408 116 and its subsidiaries, which were added as discrete exclusions by the 2023 amendment (Reg 5(1)(da)-(db), S.R. No. 131/2023). The listing by ACN indicates that the exclusion applies to a specific corporate entity and to entities in a subsidiary relationship.

The Regulations explicitly state that the Government teaching service under Part 2.4 of the Education and Training Reform Act 2006 is not a prescribed public entity (Reg 5(2)), reinforcing that some education sector bodies are outside the Act’s covered class.

Who ultimately bears the operational consequences depends on the Act. These Regulations do not themselves set duties, penalties, or reporting obligations. Rather, they determine the population whose obligations and rights will be set by the Act. Entities that are captured should therefore be treated as potentially subject to the Act’s provisions. Public authorities, boards, CEOs and corporate officers of public entities should check their status under the Act and these Regulations; if an entity is excluded, the Act’s regime will not apply via these Regulations.

The Regulations also affect administrative actors: the Governor in Council is the making authority (Reg 2 and Endnotes), and agencies responsible for interpreting whether a body qualifies as a "public entity" must rely on definitions in the Act and the Public Administration Act 2004, as noted in the Regulations’ Note to Reg 5.

The Regulations themselves do not create duties, rights or obligations beyond prescribing which public entities are within the scope of the Act. Their operative role is classificatory: by determining whether an entity is a "prescribed public entity" the Regulations trigger the application of the Act, which is the source of substantive duties and rights. This is explicit in the objective in Reg 1 and the structure of Reg 5.

Consequently, the key practical consequence for an entity is not a new duty contained in these Regulations; rather, being included or excluded determines whether the substantive duties in the Act attach. The Regulations therefore serve as an enabling instrument that links entities to duties and rights elsewhere. For example, once an entity is a prescribed public entity under Reg 5, the Act’s provisions relating to the Independent Remuneration Tribunal and to parliamentary standards will, by design of the Act, apply to that entity. The Regulations do not themselves specify the content of tribunal powers, remuneration settings, standards of conduct, complaint processes, reporting obligations, or enforcement powers; those remain in the Act.

Given that, the immediate legal tasks for affected entities are:

• Determine whether the entity is a "public entity" as defined in section 3 of the Act and the Public Administration Act 2004, because Reg 5 operates by exclusion from that category. The Regulations explicitly note that the definition of "public entity" comes via section 3 of the Act to the Public Administration Act 2004 (Reg 5 note).

• Verify whether any of the categorical or specific carve outs apply. For entities in the health, ambulance, mental health, education, Crown land committee or the named corporate group categories, the exclusion removes application of the Act that would otherwise follow from being a public entity.

• Where a committee of management claims the exemption under Reg 5(1)(e), it must confirm both the composition criterion (members appointed under s 14(4)(a) of the Crown Land (Reserves) Act 1978) and the financial criterion (annual income not exceeding $1,000,000).

• For corporate groups, an entity must determine whether it is a subsidiary of SEC Victoria Pty Ltd, given the 2023 amendment excluding that company and its subsidiaries (Reg 5(1)(da)-(db)).

Because the Regulations are classificatory, the measured outcome for rights and duties is binary: entities that are prescribed by operation of Reg 5 are within the Act’s remit and will face the Act’s duties and entitlements; excluded entities remain outside the Act’s coverage as a consequence of these Regulations. The Regulations do not create procedural rights such as appeal rights or review mechanisms in themselves; any procedural protections or enforcement mechanisms will be in the Act.

These Regulations do not prescribe penalties, sanctions, or enforcement mechanisms. They are a statutory instrument that determines which public entities fall within the Act's reach, rather than a source of penalties. The statute-making mechanism is recorded: the Regulations are made under section 44 of the Act (Reg 2), and they revoke the previous regulations made in 2019 (Reg 3). The Endnotes record the date of making (14 December 2021), commencement (14 December 2021) and the sunset date (14 December 2031).

Because the Regulations do not themselves establish offences, non‑compliance with these Regulations would not, on their face, attract penalties under the Regulations. Instead, the relevant compliance and enforcement consequences arise from whether an entity is a prescribed public entity and therefore subject to the Act. Any civil, administrative or criminal penalties, or enforcement functions, must be sought in the Act itself; the Regulations only delineate which entities will be bound by those parts of the Act that contain penalties and enforcement provisions.

Practically, enforcement risk for an entity is therefore indirect. The administrative consequence of misclassifying an entity is that the entity might unintentionally fail to observe obligations in the Act (if it wrongly considers itself excluded), or might unnecessarily apply Act-based procedures (if it wrongly considers itself captured). The Regulations do not set processes for contesting classification, nor do they set transitional arrangements or compliance timelines. Entities and regulators will need to rely on the Act for enforcement powers and on other administrative law principles for review and challenge.

For regulators and lawyers, the immediate implication is that enforcement questions should be addressed by reference to the Act and any associated instruments made under the Act, not the Regulations. The Regulations are a coverage rule: they alter the population subject to enforcement under the Act but do not themselves constitute a regime of penalties or administrative sanctions.

The Regulations operate primarily by cross-reference to other statutes. Their effect is to map the coverage of the Act across the wider Victorian statutory landscape. Key statutory interactions in the text are as follows.

First, the Regulations rely on the Act's own definitional regime. The Note to Regulation 5 explicitly states that "a public entity is defined in section 3 of the Act to have the same meaning as it has in the Public Administration Act 2004" (Reg 5 note). That means the interaction with the Public Administration Act is foundational: to know whether an organisation is a public entity for these Regulations, you must consult the Public Administration Act 2004 as adopted into the Act.

Second, the Regulations exclude specific classes by reference to other Acts rather than redefining them. Those cross-references mean that the precise legal character of the excluded entities will turn on the interpretation and definitions in those statutes. Examples:

• Health Services Act 1988: public hospitals, multi‑purpose services and public health services are excluded via Reg 5(1)(a). Whether a particular facility is a "public hospital" under that Act will determine exclusion.

• Ambulance Services Act 1986: ambulance services are excluded (Reg 5(1)(b)). The statutory description in that Act will control.

• Mental Health Act 2014: the Victorian Institute for Forensic Mental Health is excluded by reference to s 328 (Reg 5(1)(c)).

• Education and Training Reform Act 2006: school councils are excluded (Reg 5(1)(d)), and the Government teaching service is expressly stated not to be prescribed (Reg 5(2)).

• Crown Land (Reserves) Act 1978: committees of management appointed under particular subsections are excluded if they meet the composition and income conditions (Reg 5(1)(e)). That interaction depends on the mechanics of appointment under the Crown Land (Reserves) Act and the finances of the committee.

Third, the Regulations were amended through a subordinate instrument, S.R. No. 131/2023, which inserted Reg 5(1)(da) and (db) excluding SEC Victoria Pty Ltd ACN 670 408 116 and its subsidiaries. The 2023 amendment shows that the Regulations are intended to be read alongside their amendment history. Interaction with corporate law may be necessary to interpret "subsidiary", since that concept commonly depends on corporate relationships and definitions in corporate law. The Regulations do not define "subsidiary".

Fourth, these Regulations revoke a prior set of regulations, the 2019 Prescribed Public Entities Regulations (Reg 3). The revocation may have implications for entities whose status changed as a result, but the Regulations do not provide transitional rules; any transitional questions must be resolved by reference to the Act or other administrative instruments.

Finally, the Endnotes draw attention to the ILA (Interpretation of Legislation Act 1984) provisions relating to style and interpretation (Endnotes 1), but those are about drafting and do not themselves alter substantive coverage.

In summary, the Regulations function as a nexus document that connects definitional and sectoral regimes in Victorian statute law to the Act. To apply these Regulations in practice requires concurrent reading of the Act, the Public Administration Act 2004 and any sectoral statute relied on for exclusion.

The Regulations were made on 14 December 2021 by the Governor in Council under s 44 of the Act and commenced that same day (Endnotes 1). They included a revocation of the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards (Prescribed Public Entities) Regulations 2019 by Reg 3. The Regulations include a sunset provision recorded in the Endnotes: they will sunset ten years after the day of making, that is on 14 December 2031 (Endnotes 1).

A later statutory rule amended the instrument in 2023. The Table of Amendments records that the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards (Prescribed Public Entities) Amendment Regulations 2023, S.R. No. 131/2023, were made and commenced on 12 December 2023. That instrument inserted two subparagraphs in Regulation 5(1): paragraph (da) excluding SEC Victoria Pty Ltd ACN 670 408 116, and paragraph (db) excluding a subsidiary of that company. The published marginal note in the Regulations records the insertion: "Reg. 5(1)(da) inserted by S.R. No. 131/2023 reg. 3" and similarly for (db).

The primary visible changes across the instrument’s life are therefore:

• Revocation of the 2019 Regulations and replacement by these 2021 Regulations (Reg 3).

• A targeted amendment in 2023 adding a named corporate exclusion (Reg 5(1)(da)-(db)).

There is no further amendment history recorded in the text provided. The Endnotes indicate that this version incorporates amendments as at 12 December 2023 and provide the statutory rule numbers and dates for the 2023 amendment. The Explanatory details section briefly notes the origin of Reg 3 as S.R. No. 65/2019, but does not provide transitional commentary or explanatory memorandum extracts that would show the policy reasoning behind particular carve outs. The 2023 amendment’s use of an ACN indicates a discrete, entity‑specific change rather than a sectoral reclassification.

For practitioners, the amendment history is important for two reasons: first, to identify whether an entity’s classification changed as a result of the 2021 revocation and replacement of the 2019 Regulations; and second, to note the 2023 insertion which can affect corporate groups associated with SEC Victoria. The instrument’s sunset date also means that unless renewed or remade, the Regulations will lapse in 2031.

The Regulations as provided contain no references to litigation, judicial decisions, or statutory interpretation cases. There is no recorded litigation history in the instrument, the Endnotes, or the Table of Amendments. The Explanatory details do not cite cases either.

Because these Regulations are classificatory and cross‑referential, any litigation likely to arise would involve interpretation of whether an entity is a "public entity" under the Act and the Public Administration Act 2004, or whether a particular entity fits an exclusion in Reg 5 (for example, whether a committee of management satisfies the appointment and income criteria, or whether a company is a "subsidiary" of SEC Victoria for the purpose of the 2023 amendment). The text provided does not record any such proceedings.

Practitioners seeking precedent or judicial interpretation must therefore look beyond this instrument to the Act and to the Public Administration Act 2004, or to any case law interpreting the excluded statutes (Health Services Act 1988; Ambulance Services Act 1986; Mental Health Act 2014; Education and Training Reform Act 2006; Crown Land (Reserves) Act 1978), none of which are discussed in this instrument. Absent case citations in the Regulations, there is no reported litigation history to summarise here.

If litigation occurs, the likely areas of contest would be definitional issues (what constitutes a "public entity" and a "subsidiary"), the scope and timing of the exclusions (for example how annual income is calculated for a committee of management), and any administrative law challenges to decisions by agencies on classification. The Regulations themselves do not provide an internal review or appeal mechanism for classification decisions.

There are a number of practical pitfalls and drafting features in this instrument that practitioners should notice, because they create points of potential ambiguity or administrative burden.

1. Coverage depends on external definitions. The Regulations operate by reference to the Act's definition of "public entity", which in turn imports the Public Administration Act 2004 (Reg 5 note). To determine coverage an entity must consult multiple statutes. The Regulations do not re‑state the public entity test, so there is no single‑document answer.

2. Exclusions are by cross‑reference, not by definition. Where an exclusion refers to entities "within the meaning of" another Act (for example public hospitals under the Health Services Act 1988, Reg 5(1)(a)), the correct classification depends on interpretation under that other statute. Misreading a sectoral term risks misclassification.

3. Compound conditions for committee of management exclusion. Reg 5(1)(e) excludes committees of management only if (i) they consist of members appointed under s 14(4)(a) of the Crown Land (Reserves) Act 1978 and (ii) have annual income not exceeding $1,000,000. Both conditions must be satisfied. Practitioners should check appointment records and accounting periods. The Regulations do not define how "annual income" is measured, the applicable accounting year or aggregation rules for related entities.

4. The term "subsidiary" is used without definition. Reg 5(1)(db) excludes "a subsidiary of SEC Victoria Pty Ltd ACN 670 408 116" but the Regulations do not define "subsidiary". Determination therefore requires reference to company law or to the ACN holder's corporate structure and instruments.

5. Targeted corporate carve out suggests specific intent. The addition of SEC Victoria by ACN (Reg 5(1)(da)) indicates the Regulations can be amended to exclude named corporate entities. Entities should be alert to the possibility of further targeted changes, which may produce asymmetrical coverage across similar entities.

6. No transitional or procedural rules in the Regulations. Reg 3 revokes the 2019 Regulations, but no transitional provisions are in this instrument. Any transitional arrangements or obligations for entities whose status changed will need to be found in the Act or other materials. Similarly, the Regulations do not set out a process for an entity to seek a determination of its status.

7. Sunset date requires monitoring. The Endnotes state the Regulations will sunset on 14 December 2031. Entities and advisers should note the regulatory horizon and monitor for remaking or replacement.

8. These Regulations are not the source of substantive obligations. A common mistake would be to look to these Regulations for specifics of remuneration or standards. They only determine which bodies are subject to the Act. Substantive duties, enforcement mechanisms and penalty provisions must be sought in the Act.

9. Absence of litigation history in the instrument. There are no cited cases or judicial pronouncements that interpret these Regulations. Any disputes about classification will therefore rely on first instance administrative determinations or future litigation.

10. Evidence and record keeping. Because exclusions hinge on factual matters such as appointment source and income thresholds, entities should ensure contemporaneous records are available to demonstrate entitlement to an exclusion, particularly for committees of management claiming the income‑based carve out.

Being aware of these "gotchas" will reduce the risk of misclassification and of unintended exposure to the Act’s obligations.

Because these Regulations are a classification mechanism, compliance work is primarily about correctly determining status and documenting the basis for that determination. The following practical compliance checklist, based strictly on the text of the Regulations, sets out procedural steps entities should take.

1. Confirm whether the organisation is a "public entity". Consult section 3 of the Act and the Public Administration Act 2004 to establish whether the organisation meets the statutory definition referenced in the Regulations (Reg 5 note). Do not treat the Regulations alone as determinative.

2. Map sectoral status against the exclusions in Reg 5(1). If the organisation falls within any of these categories, it is excluded and therefore not a prescribed public entity under these Regulations:

   • Public hospital, multi‑purpose service or public health service under the Health Services Act 1988 (Reg 5(1)(a)).
   • Ambulance service under the Ambulance Services Act 1986 (Reg 5(1)(b)).
   • Victorian Institute for Forensic Mental Health continued under s 328 Mental Health Act 2014 (Reg 5(1)(c)).
   • School council within the Education and Training Reform Act 2006 (Reg 5(1)(d)).
   • Committees of management appointed under s 14(1) or (2) of the Crown Land (Reserves) Act 1978 that meet the appointment and income requirements (Reg 5(1)(e)).
   • SEC Victoria Pty Ltd ACN 670 408 116 and its subsidiaries (Reg 5(1)(da)-(db)).

3. For committees of management seeking the Reg 5(1)(e) exclusion, gather and preserve documentary evidence that:

   • Membership was appointed under s 14(4)(a) of the Crown Land (Reserves) Act 1978; and
   • Annual income does not exceed $1,000,000. Because the Regulations do not define "annual income" or the accounting period, record the accounting basis used and any relevant financial statements.

4. For corporate groups, ascertain corporate relationships. If an entity asserts it is a "subsidiary" of SEC Victoria Pty Ltd and therefore excluded, obtain corporate registers, shareholding records, constitutions and consolidated financial statements to evidence the relationship. The Regulations supply no definition of "subsidiary" so proof will involve corporate records.

5. Maintain a written internal classification decision. Record the legal basis for inclusion or exclusion, the statutes consulted, the factual materials relied on, the date of review and the officer and legal adviser responsible. As the Regulations can be amended, contemporaneous records demonstrate due diligence.

6. Review the Act for substantive obligations. If the entity is a prescribed public entity by reason of these Regulations, identify the specific duties, reporting obligations, remuneration or standards‑related obligations that the Act imposes. The Regulations do not set those obligations; they determine who is subject to them.

7. Monitor amendments and the sunset date. The Regulations were amended on 12 December 2023 (S.R. No. 131/2023) and will sunset on 14 December 2031 (Endnotes). Keep an eye on statutory rule notices for further changes that may affect classification.

8. Prepare for administrative interaction. Because the Regulations do not provide a dispute mechanism over classification, consider pre‑emptively engaging with the relevant departmental adviser or the Attorney‑General’s Department to obtain confirmation or guidance where status is uncertain.

9. Ensure governance and compliance systems reflect classification. If the entity is prescribed, update governance charters, procurement, remuneration and conduct policies in line with obligations under the Act. If excluded, ensure documentation justifies that exclusion and explains any residual obligations under sectoral statutes.

10. Seek legal advice where ambiguous. Where definitions or factual conditions are close (for example mixed income near $1,000,000, disputed appointment pathways, or complex corporate groups), obtain legal advice documenting the position. The Regulations are short and classification errors can have material downstream effects when the Act’s obligations are applied.

This compliance approach focuses on establishing and evidencing the correct classification under the Regulations, identifying the consequential duties in the Act, and documenting the decision process to reduce administrative and legal risk.