acts interpretation amendment (2025 measures no. 2) substituted reference order 2025

EXPLANATORY STATEMENT

Issued by authority of the Attorney-General

in compliance with section 15J of the Legislation Act 2003

Purpose and operation of the Instrument

The Acts Interpretation Act 1901 (the Act) provides rules for the interpretation of all Commonwealth Acts and instruments.

Where provisions of Commonwealth Acts and instruments made under those Acts refer to a particular authority such as a Minister, a Department of State or other Australian Government agency or a particular office or office-holder, these references may need to be altered to reflect new administrative arrangements and facilitate the continued exercise of powers and functions from the time of those administrative changes.

Section 19B of the Act provides for the making of substituted reference orders. A substituted reference order may be made to alter a reference to a specified authority if any of the following happens (as described in subsection 19B(1)):

• the authority is abolished
• the name or title of the authority is changed
• there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order (AAO), or
• the reference to the authority becomes no longer appropriate for any other reason.

Substituted reference orders avoid the need to amend legislation, but do not themselves amend the statute book. Accordingly, an order must be read with the relevant legislation or instrument to determine the correct reference. A substituted reference order can operate on references to authorities that are already the subject of existing substituted reference orders. An order cannot deal with transitional issues.

Subsection 19B(2) of the Act confers the power on the Governor-General to make a substituted reference order, which has effect for all purposes on and after the day specified in the order.

The Act also provides that a substituted reference order:

• may have retrospective effect (subsection 19B(3));
• has effect according to its terms (subsection 19B(4));
• is a legislative instrument (subsection 19B(5)); and
• must not be made only because an authority is abolished, and another authority of the same type is then established with the same name (subsection 19B(6)).

Subsection 19B(7) of the Act defines authority for the purposes of section 19B as a Minister, a Department of State, any other Agency within the meaning of the Public Service Act 1999, or an office or the holder of an office.

Section 19BA of the Act, as in force on 25 June 2009, provides for the making of substituted references orders for the Fair Work Act 2009. Section 19BA operates in a similar way to current section 19B, except that a substituted reference order cannot have retrospective effect.

The Acts Interpretation Amendment (2025 Measures No. 2) Substituted Reference Order 2025 (the Order) creates substituted references to give effect to machinery of government changes under the Administrative Arrangements Order (AAO) signed 13 May 2025.

The Order amends the Acts Interpretation Substituted Reference Order 2017, and does not make a new instrument. This is consistent with all substituted reference orders made after 2017. This approach aims to improve readability and facilitate greater access to law by consolidating new substituted references in one instrument.

The Order also creates substituted references to give effect to the machinery of government changes and the transfer of responsibilities under the AAO signed on 14 December 2011 to correct a historical oversight in creating a substitution. The Order amends the Acts Interpretation (Substituted References – Section 19BA) Order 2004, which is the relevant substituted reference order for the correction.

The Order is a legislative instrument for the purposes of the Legislation Act. The Legislation (Exemptions and Other Matters Regulation) 2015 provides that a substituted reference order made under section 19B of the Act is not subject to the disallowance or sunsetting provisions of the Legislation Act (sections 10, item 1 and 12, item 1 of that Regulation).

The Order commences the day after it is registered on the Federal Register of Legislation. Further details about the date on which particular substitutions have effect are set out in the Attachment.

Details of the Order are set out in the Attachment.

The Act specifies no conditions that needed to be satisfied before the power to make the Order was exercised.

Consultation

The Attorney-General’s Department (the department) consulted all Commonwealth departments and agencies responsible for administering affected Acts and instruments under the Administrative Arrangements Order of 13 May 2025. The department consulted with the Department of Defence, Department of Employment of Workplace Relations, Department of Social Services, Department of Finance, Department of Foreign Affairs and Trade, Department of Education, Department of Veteran’s Affairs, Department of Treasury, Department of Health, Department of Prime Minister and Cabinet, Department of Agriculture, Fisheries and Forestry, Department of Climate Change, Energy, the Environment and Water, Department of Home Affairs, Department of Industry, Science and Resources, Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts, the National Indigenous Australians Agency and internally with the Attorney-General’s Department.

Further consultation was undertaken with the Commonwealth departments that required a substitution in the Order. The Order is of a machinery nature only and has no direct or substantial indirect effect on business.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

This section provides that the title of this order is the Acts Interpretation Amendment (2025 Measures No. 2) Substituted Reference Order 2025 (the Order).

Section 2 – Commencement 

This section provides for the whole of the Order to commence on the day after it is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the Order is made under section 19B of the Acts Interpretation Act 1901 (the Act), and under section 19BA of the Act, as in force on 25 June 2009, for the purposes of substitutions in the Fair Work Act 2009 (Fair Work Act). This is because, although section 19BA was repealed in 2015, section 40A of the Fair Work Act provides that the Act, as in force on 25 June 2009, applies to the Fair Work Act. Section 40A essentially freezes the application of the Act to the Fair Work Act as it was on 25 June 2009. This approach was taken in the context of state Parliaments referring workplace relations matters to the Commonwealth Parliament for the purposes of paragraph 51(xxxvii) of the Constitution. This is a standard provision in Commonwealth legislation based on a text reference, to ensure that the scope of a reference is certain. Section 19BA of the Act, as in force on 25 June 2009, provided for the making of substituted references orders.

Section 19B of the Act provides the authority to implement substitutions by way of amendments to both the 2017 Order (the current consolidated substituted reference order) as well as the 2004 Order (a historical consolidated substituted reference order). This is because the 2004 Order continues to have effect as if it has been made under section 19B of the Act (see item 5 of Schedule 2 of the Acts and Instruments (Framework Reform) Act 2015).

Section 4 – Schedules

This section provides that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a schedule to this instrument has effect according to its terms.

SCHEDULE 1 – Amendments

Acts Interpretation Substituted Reference Order 2017

Item [1] – Section 1.3

Item 1 replaces existing section 1.3, which provides that the instrument is made under 19B of the Act, with a new section to provide that the instrument is also made under 19BA of the Act, as in force on 25 June 2009. This update is a consequence of the substitutions made to the Fair Work Act under Item [2] for the reasons outlined under section 3.

Item [2] – At the end of Part 2

Item 2 adds new section 2.10 at the end of Part 2 of the Acts Interpretation Substituted Reference Order 2017 (the 2017 Order).

New section 2.10 identifies the following affected provision: paragraph 789GZE(1)(c) of the Fair Work Act. The reference to the ‘Industry Minister’ in this paragraph is substituted with the reference ‘Minister responsible for the building and construction industry, excluding workplace relations’.

This change is necessary as, under the AAO of 13 May 2025, responsibility for ‘the building and construction industry, excluding workplace relations’ transferred from the Department of Industry, Science and Resources to the Department of the Treasury. Consistent with the AAO of 13 May 2025, the substituted reference ensures that paragraph 789GZE(1)(c) operates so that the Minister responsible for the building and construction industry, excluding workplace relations, is included in the membership of the National Construction Industry Forum.

The substitution implemented by section 2.10 takes effect on and after the day when this Order commences. As this substitution applies to the Fair Work Act, it is made under section 19BA of the Act, as in force on 25 June 2009 (see section 40A of the Fair Work Act). Section 19BA did not provide for retrospective operation of substituted reference orders, which means that the substitution can only commence on or after the Order’s commencement. The substitution commences upon the commencement of the Order to ensure commencement as soon as possible following the AAO signed on 13 May 2025.

Acts Interpretation (Substituted References —Section 19BA) Order 2004

Item [3] – After Part 4 of Schedule 1

Item 3 adds new Part 4A at the end of Part 4 of the Acts Interpretation (Substituted References – Section 19BA) Order 2004 (the 2004 Order).

New Part 4A identifies the affected provisions as being all the provisions of the Privacy Act 1988 (the Privacy Act) and any instruments made under that Act. This drafting approach has been taken for consistency with Part 4 which describes the affected provisions in like manner, noting that new Part 4A will appear immediately after Part 4 and operates on the substitution made by Part 4. In practice, the only remaining affected provisions are subsections 70(1) and (2) of the Privacy Act. The references to the ‘Minister for Privacy and Freedom of Information’ in subsections 70(1) and (2) are substituted with references to ‘Attorney‑General’.

This change is necessary as the ‘Minister for Privacy and Freedom of Information’ administered the Privacy Act between 2010 and 2011, but following the AAO of 14 December 2011, the Attorney‑General resumed responsibility for the Privacy Act.

This new substitution operates on the substitution made by Part 4 of Schedule 1 to the 2004 Order (substituting the reference to Cabinet Secretary with the Minister for Privacy and Freedom of Information), which in turn operates on the substitution made by Part 2 of that Schedule (substituting the reference to Attorney-General with the Cabinet Secretary). This means that the references to ‘Attorney-General’ in subsections 70(1) and (2) of the Privacy Act were read as references to ‘Minister for Privacy and Freedom of Information’ under the 2004 Order. This Order substitutes these references to ensure that section 70 of the Privacy Act operates to enable the Attorney‑General to furnish certificates under that section.

The substitution inserted by Part 4A takes effect on and after 14 December 2011. This is the day of commencement of the AAO signed on 14 December 2011.