Acts Interpretation (Substituted References - Section 19BA) Amendment Order 2008 (No. 1)

EXPLANATORY STATEMENT

Issued by the Authority of the Attorney-General

Acts Interpretation Act 1901

Acts Interpretation (Substituted References – Section 19B) Amendment Order 2008 (No. 1)

Acts Interpretation (Substituted References – Section 19BA) Amendment Order 2008 (No. 1)

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

The Administrative Arrangements Order sets out the legislation to be administered by each Minister and his or her Department.  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 under the Administrative Arrangements Order.  However, where provisions of Acts and instruments made under Acts refer to specific Ministers, Departments or Secretaries of Departments, those references may need to be updated to reflect the changes which result from the making of a new Administrative Arrangements Order.

Sections 19B and 19BA of the Act confer on the Governor‑General power to make orders to alter all specific references contained in provisions of Acts.

The primary purpose of the orders is to make consequential amendments to orders made under sections 19B and 19BA in December 2007, following the remaking of the Administrative Arrangements Order in January 2008.

Subsection 19B(1) of the Act 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) of the Act 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) of the Act 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.

Subsection 19BA(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 a change in the administration of the provision or the reference to the particular Minister is no longer appropriate.

Subsection 19BA(2) provides that the Governor‑General may make an order altering a reference in a provision of an Act to a particular Department if there is a change in the administration of the provision or the reference to the particular Department is no longer appropriate.

Subsection 19BA(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 there is a change in the administration of the provision or the reference to the particular Secretary is no longer appropriate.

On 25 January 2008 the Governor‑General in Council approved a new Administrative Arrangements Order, which moved responsibilities amongst Departments without changing the title of those Departments.  Where legislation refers to a specific Department by name, an order is required under section 19BA of the Act. 

During development of the order under section 19B of the Act, an error made in previous orders was identified.  The section 19B order amends a substitution made on
12 November 1998, which mistakenly changed references to the Department of Industry, Science and Tourism to the Attorney-General’s Department in all provisions.  This error affected section 34-65 of the Income Tax Assessment Act 1997.  The amending order corrects this and refers to the new Department of Innovation, Industry, Science and Research.

The making of the orders ensures that Ministers, Departments and Secretaries of Departments can exercise all powers granted to them following the amendment of the Administrative Arrangements Order in January 2008.

Details of the orders under section 19B and section 19BA of the Act are set out in
Attachment A and Attachment B respectively. 

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

The order under section 19B of the Act amends the Acts Interpretation (Substituted References – Section 19B) Order 1997 made in 1997, and amended in 1997, 1998, 1999, 2001, 2002, 2004, 2006 and 2007.

The order under section 19BA of the Act amends the Acts Interpretation (Substituted References – Section 19BA) Order 2004 made in 2004, and amended in 2007.

The orders are legislative instruments for the purposes of the Legislative Instruments Act 2003.  The Legislative Instruments Regulations 2004 provide that an instrument made under section 19B or section 19BA of the Acts Interpretation Act 1901 is not subject to disallowance or sun-setting.

The orders commence on the day they are registered on the Federal Register of Legislative Instruments.

Departments affected by these changes have been consulted.  Further consultation was unnecessary for these legislative instruments, as they are of a machinery nature only.  The orders have no direct or substantial indirect effect on business.

ATTACHMENT A

Details of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2008 (No. 1)

Clause 1 provides that the Order is the Acts Interpretation

(Substituted References ‑ Section 19B) Amendment Order 2008 (No. 1).

Clause 2 provides that the Order commences on the day it is registered.  This means registration on the Federal Register of Legislative Instruments established under the Legislative Instruments Act 2003.

Clause 3 provides that Schedule 1 amends the Acts Interpretation

(Substituted References ‑ Section 19B) Order 1997 (the original Order).

Schedule 1

The items in Schedule 1 amend the schedules to the original Order.

Item [1]  This item substitutes a new heading for Part 11 of Schedule 1 to the original Order.  The current heading makes reference to the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 1997.  The heading can now be updated to refer to substitutions made on 18 December 2007 because that instrument has commenced.

Item [2]  This item substitutes a new heading for Part 7 of Schedule 2 to the original Order.  The current heading makes reference to the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2007 (No. 2).  The heading can now be updated to refer to substitutions made on 18 December 2007 because that instrument has commenced.

Item [3] This item inserts a new Part 8 into Schedule 2 to the original Order.  Clause 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.  New Part 8 of Schedule 2 sets out one new item and the relevant existing reference, substitute reference and affected provisions, for the machinery changes referred to in clause 4 of the original Order. 

As shown in the table below, a reference to the Department listed in the second column of new Part 8, in a provision listed in the fourth column, will be replaced by a reference to the Department listed in the third column.

Item [4]  This item substitutes a new heading for Part 7 of Schedule 3 to the original Order.  The current heading makes reference to the commencement of the Acts Interpretation (Substituted References – Section 19B) Amendment Order 2007 (No. 2).  The heading can now be updated to refer to substitutions made on 18 December 2007 because that instrument has commenced.

ATTACHMENT B

Details of the Acts Interpretation (Substituted References – Section 19BA) Amendment Order 2008 (No. 1)

Section 1 provides that the Order is the Acts Interpretation (Substituted References - Section 19BA) Order 2008 (No. 1).

Section 2 provides that the Order commences on the day it is registered on the Federal Register of Legislative Instruments.

Section 3 provides that Schedule 1 amends the Acts Interpretation

(Substituted References – Section 19BA) Order 2004 (the original Order).

Schedule 1

The items in Schedule 1 amend Schedule 2 to the original Order.

Item [1] This item substitutes a new heading for Part 1 of Schedule 2 to the original Order.  The current heading makes reference to the commencement of the Acts Interpretation (Substituted References – Section 19BA) Order 2004.  The heading can now be updated to refer to substitutions made on 18 November 2004 because that instrument has commenced. The heading was not updated previously because this order is the first amendment to
Schedule 2.

Item [2] This item inserts a new Part 2 into Schedule 2 to the original Order.  Clause 4 of the original Order provides for each item in a Part of Schedule 3 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.  New Part 2 of Schedule 2 sets out a new item and the relevant existing reference, substitute reference and affected provisions, for the machinery changes referred to in clause 4 of the original Order. 

As shown in the table below, a reference to the Department listed in the second column of new Part 2, in a provision listed in the fourth column, will be replaced by a reference to the Department listed in the third column.