EXPLANATORY STATEMENT

Select Legislative Instrument No. 236, 2013

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

ACTS INTERPRETATION ACT 1901

ACTS INTERPRETATION (SUBSTITUTED REFERENCES –

     SECTION 19B) AMENDMENT ORDER 2013 (No. 2)

The Acts Interpretation Act 1901 (the Act) provides rules for the interpretation of all Commonwealth Acts and addresses matters such as interpreting references to Ministers, Departments or Secretaries of Departments.

A general reference to a Minister, Department or Secretary in a provision of an Act or instrument made under an Act means the Minister, Department or Secretary of the Department administering the legislation for the time being.  Where provisions of Acts and instruments made under Acts refer to particular Ministers, Departments or Secretaries of Departments by title, these specific references may need to be altered to reflect new administrative arrangements, such as the change in title of a Minister or Department or the transfer of legislation between portfolios under a new Administrative Arrangements Order (AAO).

Section 19B of the Act confers on the Governor‑General power to make orders which appropriately alter all specific references contained in provisions of Acts. 

Subsection 19B(1) provides that the Governor‑General may make an order altering a reference in a provision of an Act to a particular Minister if there is no longer any such Minister. 

Subsection 19B(2) provides that the Governor‑General may make an order altering a reference in a provision of an Act to a particular Department if that Department has been abolished or the name of the Department has been changed. 

Subsection 19B(3) provides that the Governor‑General may make an order altering a reference in a provision of an Act to a particular Secretary of a Department if that office of Secretary has been abolished or the name of that office has been changed.

On 18 September 2013, a new Ministry was sworn in by the Governor‑General, which included several new positions.  The Governor-General also approved a new AAO to implement the associated administrative changes.  The new arrangements include the following:

• appointment of new positions of Ministers for Agriculture, Communication, the Environment, Finance, Health, Immigration and Border Protection, Industry, Infrastructure and Regional Development, and Social Services;
• abolition of the Department of Regional Australia, Local Government, Arts and Sport, the Department of Education, Employment and Workplace Relations, and the Department of Resources, Energy and Tourism;
• establishment of the Department of Education and the Department of Employment;
• renaming of the remaining Departments; and
• changes to the responsibilities of Departments.

The purpose of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 2) (the Order) is to amend the Acts Interpretation (Substituted References – Section 19B) Order 1997 (the original Order) to reflect the new ministry and the transfer of responsibilities through the new AAO made on 18 September 2013 and further minor amendments on 3 October 2013. 

The Order ensures that Ministers, Departments and Secretaries of Departments can exercise all powers granted to them by legislation for which they are responsible under the AAO, by ensuring that references to Ministers, Departments and Secretaries in legislation refer to the correct Ministers, Departments and Secretaries.

Details of the Order are set out in the Attachment. 

The Act specifies no conditions that need to be met before the power to make the Order may be exercised.

The Order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.  The Legislative Instruments Regulations 2004 provide that an instrument made under section 19B of the Act is not subject to the disallowance or sunset provisions of the Legislative Instruments Act 2003.  Accordingly, a human rights statement of compatibility is not required.

The Order commences on the day after it is registered on the Federal Register of Legislative Instruments, except for Schedule 1 which contains amendments which are be taken to have commenced on 18 September 2013.  The provisions in Schedule 1 apply retrospectively to facilitate the continued exercise of powers and functions from the time of the administrative changes.  In particular, the retrospective application avoids doubt as to whether payments could have continued to be made in the period between the date of the changes to the relevant administrative arrangements and the date on which this Order has otherwise taken effect (the day after registration).

Ordinarily, subsection 12(2) of the Legislative Instruments Act 2003 would apply to provisions which are taken to have commenced on a date before their registration.  Subsection 12(2) provides that a legislative instrument has no effect if, apart from the operation of that subsection, it would take effect before the date it is registered and would, as a result, disadvantage or impose liabilities on a person (other than the Commonwealth or an authority of the Commonwealth).  Under subsection 12(3), this does not apply where there is a ‘contrary provision for commencement of the instrument in the enabling legislation’. Subsections 19B(1), (2) and (3) of the Act provide that a provision for which a substituted reference order has been made for the title of a Minister, Department or Secretary shall have effect accordingly for all purposes ‘on and after the day specified in the order (which may be a day before the order is made)’.  Subsections 19B(1), (2) and (3) of the Act are ‘contrary provisions’ for the purposes of subsection 12(3) of the Legislative Instruments Act 2003.  Accordingly, subsection 12(2) of the Legislative Instruments Act 2003 does not apply to the Order.

The Order was developed in consultation with all relevant Commonwealth Departments.  The Order is of a machinery nature only and has no direct or substantial indirect effect on business.

ATTACHMENT

Details of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 2)

Section 1 provides that the Order is named the Acts Interpretation (Substituted References - Section 19B) Amendment Order 2013 (No. 2).

Section 2 provides that Sections 1 to 4 and Schedule 2 to the Order commence on the day after it is registered on the Federal Register of Legislative Instruments, and Schedule 1 to the Order is taken to have commenced on 18 September 2013.

Section 3 provides that the Order is made under section 19B of the Acts Interpretation Act 1901.

Section 4 provides that each instrument specified in a Schedule to the Order is amended or repealed as set out in the applicable item of the relevant Schedule, and any other item in a Schedule to the Order has effect according to its terms.

Schedule 1

The items in Schedule 1 amend the original Order.

Amendments to Schedule 1 to the original Order

Item [1] inserts a new Part 17 into Schedule 1 to the original Order, for substitutions made on 18 September 2013, which is the date the substitutions take effect.  Section 3 of the original Order provides for each item in a Part of Schedule 1 to substitute references to the Minister (or Ministers) mentioned in column 2 for references to the Minister (or Ministers) mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 17 of Schedule 1 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 3 of the original Order. 

As shown in the table below, a reference to the Minister listed in the column 2 of Part 17, in a provision listed in column 4, is replaced by a reference to the Minister listed in column 3.

Amendments to Schedule 2 to the original Order

Item [2] inserts a new Part 13 into Schedule 2 to the original Order, for substitutions made on 18 September 2013, which is the date the substitutions take effect.  Section 4 of the original Order provides for each item in a Part of Schedule 2 to substitute references to the Department mentioned in column 2 for references to the Department mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 13 of Schedule 2 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 4 of the original Order. 

As shown in the table below, a reference to the Department listed in column 2 of Part 13, in a provision listed in column 4, is replaced by a reference to the Department listed in column 3.

Amendments to Schedule 3 to the original Order

Item [3] inserts a new Part 13 into Schedule 3 to the original Order, for substitutions made on 18 September 2013, which is the date the substitutions take effect.  Section 5 of the original Order provides for each item in a Part of Schedule 3 to substitute references to the Secretary mentioned in column 2 for references to the Secretary mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 13 of Schedule 3 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 5 of the original Order. 

As shown in the table below, a reference to the Secretary listed in column 2 of Part 13, in a provision listed in column 4, is replaced by a reference to the Secretary listed in column 3.

Schedule 2

The items in Schedule 2 amend the original Order.

Amendments to Schedule 1 to the original Order

Item [1] substitutes a new heading for Part 16 of Schedule 1 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [2] substitutes a new heading within the table in Part 16 of Schedule 1 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [3] inserts a new Part 18 into Schedule 1 to the original Order, for substitutions made on the commencement of the Order (the day after registration).  Section 3 of the original Order provides for each item in a Part of Schedule 1 to substitute references to the Minister (or Ministers) mentioned in column 2 for references to the Minister (or Ministers) mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 18 of Schedule 1 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 3 of the original Order. 

As shown in the table below, a reference to the Minister listed in the column 2 of Part 18, in a provision listed in column 4, is replaced by a reference to the Minister listed in column 3.

Amendments to Schedule 2 to the original Order

Item [4] substitutes a new heading for Part 12 of Schedule 2 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [5] substitutes a new heading within the table in Part 12 of Schedule 2 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [6] inserts a new Part 14 into Schedule 2 to the original Order, for substitutions made on the commencement of the Order (the day after registration).  Section 4 of the original Order provides for each item in a Part of Schedule 2 to substitute references to the Department mentioned in column 2 for references to the Department mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 14 of Schedule 2 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 4 of the original Order. 

As shown in the table below, a reference to the Department listed in column 2 of Part 14, in a provision listed in column 4, is replaced by a reference to the Department listed in column 3.

Amendments to Schedule 3 to the original Order

Item [7] substitutes a new heading for Part 12 of Schedule 3 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [8] substitutes a new heading within the table in Part 12 of Schedule 3 to the original Order.  The current heading makes reference to substitutions made on the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2013 (No. 1).  The heading is updated to the specific date (27 April 2013), which is the date the instrument was made.

Item [9] inserts a new Part 14 into Schedule 3 to the original Order, for substitutions made on the commencement of the Order (the day after registration).  Section 5 of the original Order provides for each item in a Part of Schedule 3 to substitute references to the Secretary mentioned in column 2 for references to the Secretary mentioned in column 3, wherever such references occur in a provision mentioned in column 4.  Part 14 of Schedule 3 sets out each new item, the relevant existing reference, the substitute reference and the affected provisions, for the machinery changes referred to in section 5 of the original Order. 

As shown in the table below, a reference to the Secretary listed in column 2 of Part 14, in a provision listed in column 4, is replaced by a reference to the Secretary listed in column 3.