#82; 2013 (NO. 2) (SLI NO 236 OF 2013)
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Minister for Housing and Homelessness
|
Minister for Social
Services
|
Schedule 1 to the Appropriation
Act (No. 2) 2013-2014
|
|
2
|
Minister for
Infrastructure and Transport
|
Minister for
Infrastructure and Regional Development
|
Schedule 1 to the Appropriation
Act (No. 2) 2013-2014
|
|
3
|
Minister for
Sustainability, Environment, Water, Population and Communities
|
Minister for the
Environment
|
Schedule 1 to the Appropriation
Act (No. 2) 2013-2014
|
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Department
of Broadband, Communications and the Digital Economy
|
Department
of Communications
|
Provisions
of the Appropriation Act (No. 1) 2013-2014
and the Appropriation Act (No. 2) 2013-2014,
except those that are the subject of a determination under section 32 of
the Financial Management and Accountability Act 1997
|
|
2
|
Department
of Education, Employment and Workplace Relations
|
Department
of Employment
|
Payment
to Comcare in Schedule 1 to the Appropriation Act (No. 1) 2013-2014
|
|
3
|
Department
of Families, Housing, Community Services and Indigenous Affairs
|
Department
of the Prime Minister and Cabinet
|
Payments
to Aboriginal Hostels Limited, Indigenous Business Australia, Indigenous Land
Corporation and Torres Strait Regional Authority in Schedule 1 to the Appropriation
Act (No. 1) 2013-2014 and Schedule 2 to the Appropriation
Act (No. 2) 2013-2014
|
|
4
|
Department
of Families, Housing, Community Services and Indigenous Affairs
|
Department
of Social Services
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except:
a) the provisions that are the subject of a determination under section 32
of the Financial Management and Accountability Act 1997; and
(b) the provisions mentioned in item 3
|
|
5
|
Department
of Health and Ageing
|
Department
of Health
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
|
6
|
Department
of Industry, Innovation, Climate Change, Science, Research and Tertiary
Education
|
Department
of the Prime Minister and Cabinet
|
Payments
to Australian Institute of Aboriginal and Torres Strait Islander Studies in
Schedule 1 to the Appropriation Act (No. 1) 2013-2014 and
Schedule 2 to the Appropriation Act (No. 2) 2013-2014
|
|
7
|
Department
of Industry, Innovation, Climate Change, Science, Research and Tertiary
Education
|
Department
of Industry
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except:
(a) the provisions that are the subject of a determination under section 32
of the Financial Management and Accountability Act 1997; and
(b) the provisions mentioned in item 6
|
|
8
|
Department
of Infrastructure and Transport
|
Department
of Infrastructure and Regional Development
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
|
9
|
Department
of Regional Australia, Local Government, Arts and Sport
|
Department
of Health
|
Payment
to Australian Sports Commission in Schedule 1 to the Appropriation
Act (No. 1) 2013-2014
|
|
10
|
Department
of Regional Australia, Local Government, Arts and Sport
|
Attorney-General's
Department
|
Payments
to Australia Council, Australian Film, Television and Radio School,
Australian National Maritime Museum, National Film and Sound Archive,
National Gallery of Australia, National Library of Australia, National Museum
of Australia, National Portrait Gallery of Australia and Screen Australia in
Schedule 1 to the Appropriation Act (No. 1) 2013-2014 and
Schedule 2 to the Appropriation Act (No. 2) 2013-2014
|
|
11
|
Department
of Resources, Energy and Tourism
|
Department
of Foreign Affairs and Trade
|
Payment
to Tourism Australia in Schedule 1 to the Appropriation Act
(No. 1) 2013-2014
|
|
12
|
Department
of Agriculture, Fisheries and Forestry
|
Department
of Agriculture
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
|
13
|
Department
of Finance and Deregulation
|
Department
of Finance
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
|
14
|
Department
of Immigration and Citizenship
|
Department
of Immigration and Border Protection
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
|
15
|
Department
of Sustainability, Environment, Water, Population and Communities
|
Department
of the Environment
|
Provisions
of the Appropriation Act (No. 1) 2013-2014 and the Appropriation
Act (No. 2) 2013-2014, except those that are the subject of a
determination under section 32 of the Financial Management and
Accountability Act 1997
|
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Health Secretary;
or
Secretary of the Health
Department
|
Secretary
of the Department of Social Services
|
Provisions
of the Human Services (Medicare) Regulations 1975
|
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Minister for Climate
Change and Energy Efficiency
|
Minister for Industry
|
Subregulation 4VA(1)
of the Customs (Prohibited Imports) Regulations 1956
|
|
2
|
Minister for Tertiary
Education, Skills, Science and Research
|
Minister for Education
|
Provisions of Part 4
of Schedule 6 to the Corporations Regulations 2001
|
|
3
|
Minister for Employment
and Workplace Relations;
or
Minister for Climate
Change, Industry and Innovation; or
Minister for Tertiary Education,
Skills, Science and Research
|
Minister for Employment;
or
Minister for Industry; or
Minister for Education
|
Provisions of the Migration
Regulations 1994 and instruments made under those Regulations
|
|
4
|
Minister for Climate
Change, Industry and Innovation
|
Minister for Industry
|
Section 6.1 of the Disability
(Access to Premises - Buildings) Standards 2010
Provisions of instruments
made under the Customs Act 1901 and the Customs Tariff Act 1995
|
|
5
|
Minister for Home Affairs
|
Minister for Justice
|
All provisions, except the
provision mentioned in item 6
|
|
6
|
Attorney-General
or
Minister for Home Affairs
|
Minister for Immigration
and Border Protection
|
Subregulation 3(1) of
the Taipei Economic and Cultural Office (Privileges and Immunities)
Regulations 1998
|
|
7
|
Minister for Agriculture,
Fisheries and Forestry
|
Minister for Agriculture
|
Regulations 4K and 5I of the Customs (Prohibited Imports)
Regulations 1956
Regulations 4A and 5
of the Customs (Prohibited Exports) Regulations 1958
|
|
8
|
Minister for
Sustainability, Environment, Water, Population and Communities
|
Minister for the
Environment
|
Item 3 of
Schedule 3 to the Customs (Prohibited Imports) Regulations 1956
|
|
9
|
Minister for
Infrastructure and Transport
|
Minister for
Infrastructure and Regional Development
|
Section 34.1 of the Disability
Standards for Accessible Public Transport 2002
|
|
10
|
Minister for Tertiary
Education, Skills, Jobs and Workplace Relations
|
Minister for Employment
|
Subregulation 7B(1)
of the Financial Management and Accountability Regulations 1997
|
|
11
|
Minister for School
Education, Early Childhood and Youth
|
Minister for Education
|
Section 11.1 of the Disability
Standards for Education 2005
|
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Department of Education,
Employment and Workplace Relations
|
Department of Education
|
Provisions of the Migration
Regulations 1994
|
|
2
|
Department of Agriculture,
Fisheries and Forestry
|
Department of Agriculture
|
Regulations 4K and 5I of the Customs (Prohibited Imports)
Regulations 1956
Regulation 4A of the Customs
(Prohibited Exports) Regulations 1958
|
|
3
|
Department of Health and
Ageing
|
Department of Health; or
Department of Social
Services
|
Paragraph 6A.6.1 of the Treatment Principles Paragraph 6A.6.1 of the MRCA Treatment Principles
|
|
4
|
Department of
Sustainability, Environment, Water, Population and Communities
|
Department of the
Environment
|
Subregulations 4.05(3) and
5.02(3) of the Airports (Environment Protection) Regulations 1997
Item 3 of
Schedule 3 to the Customs (Prohibited Imports) Regulations 1956
|
|
5
|
Department of Industry,
Innovation, Climate Change, Science, Research and Tertiary Education
|
Department of the
Environment
|
Methodology determinations
made under section 106 of the Carbon Credits (Carbon Farming
Initiative) Act 2011
|
|
6
|
Department of Industry,
Innovation, Climate Change, Science, Research and Tertiary Education
|
Department of Industry
|
Provisions of the
following:
(a) the ASIC Market
Integrity Rules (Competition in Exchange Markets) 2011;
(b) the Motor Vehicle
Standards Regulations 1989;
(c) the Customs
Administration Regulations 2000
Provisions of instruments
made under the Food Standards Australia New Zealand Act 1991 and the Migration
Regulations 1994
|
|
7
|
Department of Resources,
Energy and Tourism
|
Department of Industry
|
Subregulation 9AA(1)
of the Customs (Prohibited Exports) Regulations 1958 and
regulation 4MA of the Customs (Prohibited Imports)
Regulations 1956
|
|
8
|
Department of Education,
Employment and Workplace Relations
|
Department of Industry
|
Provisions of the Student
Assistance (Education Institutions and Courses) Determination 2009
(No. 2)
|
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.
|
Item
|
Existing
reference
|
Substitute
reference
|
Affected
provisions
|
|
1
|
Secretary of the
Department of Families, Housing, Community Services and Indigenous Affairs
|
Secretary of the
Department of Social Services
|
Provisions of
Schedule 2 to the Migration Regulations 1994
|
|
2
|
Secretary
|
Secretary of the
Department of Social Services
|
Subsection 42(1) of
the Health and Other Services (Compensation) Act 1995
|
|
3
|
Secretary of the
Department of Industry, Innovation, Climate Change, Science, Research and
Tertiary Education
|
Secretary of the
Department of Industry
|
Provisions of instruments
made under the Freedom of Information Act 1982
|
Commonwealth Numbered Regulations - Explanatory Statements