Acts Interpretation Amendment Substituted Reference Order 2019

The central concept is the “substituted reference” mechanism under the Acts Interpretation Act 1901. Section 19B of that Act permits the Governor-General to make orders providing that a reference in a Commonwealth Act or instrument to a particular Minister, Department or Secretary is to be read as a reference to a different Minister, Department or Secretary as specified in the order. This instrument is such an order. The key idea is that when the administrative structure of the Australian Government changes (for example, a department is renamed or functions are transferred), the many references in existing legislation to the old entity do not automatically update unless a saving provision or a legislative instrument like this one deems them to do so. Without this order, each affected Act would need to be individually amended by the Parliament, which is impractical for frequent machinery changes. The substituted reference order acts as a standing legislative updating mechanism. The 2017 Order, which this instrument amends, is the master order that contains tables of substitutions. The 2019 Order adds new tables or amends existing ones. The concept of “having effect on and after” a date is critical: these are not retrospective changes but are deemed effective from a specified date, usually matching the date of the administrative change. The order does not physically rewrite the text of the affected Acts; instead, it operates as a deeming provision: for the purposes of interpreting the law, the reference is taken to be changed. The tables in Parts 1, 2 and 3 of Schedule 1 set out the affected provisions (column 1), the existing reference (column 2) and the substitute reference (column 3). The amendment made by item 3 of Part 1 refines the general rule by allowing a substitution to apply “in so far as the provision applies in a particular respect specified in column 1 of the item”, meaning that the same provision might have one substitute reference for one application and a different substitute reference for another application. For example, item 2 in the Secretaries table (Part 1, section 4.4) substitutes a different reference when the Taxation Administration Act 1953 provision applies “in respect of the administration of the Fair Entitlements Guarantee Act 2012” vs when it applies otherwise. This fine-grained approach reduces the risk of unintended coverage.

The primary direct effect is on lawyers, judges, tribunal members and public servants who need to interpret the specific legislative provisions listed in the tables. For Part 1, the affected provisions relate to employment policy: migration regulations (definition of Employment Minister), social security administration and income tax assessment. Any person dealing with those provisions - immigration lawyers handling visa applications that rely on the definition of Employment Minister, social security advocates, tax practitioners dealing with secrecy provisions that refer to the Employment Secretary - must apply the substituted references. For example, item 1 of the first table (regulation 1.03 of the Migration Regulations 1994) means that from 29 May 2019, the term “Employment Minister” in that definition is no longer the Fair Entitlements Guarantee Minister but the minister responsible for employment policy. That could affect sponsorship arrangements, labour market testing, or skilled occupation lists. For Part 2, the changes are much broader: they affect every provision listed across 15 items covering Aboriginal and Torres Strait Islander legislation, native title, higher education support for Indigenous students, the Aboriginal and Torres Strait Islander Act 2005, Corporations (Aboriginal and Torres Strait Islander) Act 2006, and the Stronger Futures in the Northern Territory Act 2012. The substitute reference is uniformly the National Indigenous Australians Agency (NIAA) or its CEO. This affects native title claimants, prescribed bodies corporate, Indigenous corporations, higher education providers receiving Indigenous student support grants, and anyone dealing with the Indigenous Affairs portfolio. The NIAA is a non-departmental agency, so the legal status of decisions made by its CEO may differ from decisions made by a Departmental Secretary in terms of administrative law review, delegation and accountability. The affected provisions include substantive powers (such as section 94P of the Native Title Act 1993) and definitional provisions. The instrument also affects the Classification (Publications, Films and Computer Games) Act 1995 by redefining “Indigenous Affairs Secretary” to mean the NIAA CEO. The tertiary effect is on any person whose legal rights or obligations depend on the correct identification of the decision-maker. Failure to apply the correct substitution could result in invalid decisions, jurisdictional error, or incorrect compliance with statutory requirements. The instrument does not directly create obligations for private parties, but it indirectly shapes the regulatory landscape for businesses and individuals interacting with the relevant agencies.

The instrument does not itself create duties or rights. Its function is to change which government official or agency is referenced by existing legislative provisions that do create duties, powers and rights. The key effect is that from the specified dates, the duty to administer a particular provision shifts to a different Minister or Department or Secretary. For example, pursuant to the Native Title Act 1993, Part 11 vests certain functions in the “Secretary of the Department”. Under the substitution, from 1 July 2019 that function is exercised by the CEO of the NIAA. That affects the rights of native title holders who lodge certain documents or seek approvals. Similarly, the power to make grants under the Higher Education Support Act 2003 for Indigenous persons, which was previously exercisable by the Secretary of the Department administering the Act, is now exercisable by the CEO of the NIAA. That may affect the internal delegations and the speed of grant decisions. For the Income Tax Assessment Act 1936 provisions (subsections 202CB(6) and 202CE(7)), the substitution changes who is considered the “Employment Secretary” for the purposes of those provisions, which deal with the tax treatment of certain employment-related payments or withholding obligations. A taxpayer relying on a determination or notice issued by the Secretary may need to verify that the correct official had authority. The substitution also clarifies the application of secrecy provisions in the Taxation Administration Act 1953: the exception for disclosing information to the Employment Secretary is now split depending on whether the information relates to administering the Fair Entitlements Guarantee Act 2012 (goes to the Secretary of the Department administering that Act) or not (goes to the Secretary of the Department responsible for employment policy). That affects the rights of taxpayers and third parties in relation to confidentiality of tax information. The instrument also indirectly affects the right to seek merits review or judicial review of decisions. If a decision is purportedly made by an official who no longer has the statutory power (because the reference has changed), the decision may be invalid. Conversely, if a decision-maker relies on the substituted reference to assert jurisdiction, a party may challenge that. The overall effect is to update the identity of the decision-maker without altering the substance of the power or duty.

The instrument contains no penalty or enforcement provisions. It is an amending order that modifies other instruments. However, penalties and enforcement consequences arise indirectly if a person or government official misapplies the reference. For example, a person required under a taxation provision to provide information to the “Employment Secretary” could be penalised if they provide it to the wrong secretary, or if the secretary to whom they provide it lacks lawful authority to receive it. Conversely, a failure by a public official to exercise a power in accordance with the correct substituted reference could lead to the decision being set aside under the Administrative Decisions (Judicial Review) Act 1977 or the common law. In the context of native title, a procedural decision made by the wrong official could delay or invalidate a claim. The practical enforcement mechanism is judicial review. No specific penalty is stipulated in this order, but the underlying Acts that are amended contain their own penalties for non-compliance. For instance, the Social Security (Administration) Act 1999 has offences for providing false information to the Department, and the correct identity of the Department is now determined by this order. Similarly, secrecy offences in the Taxation Administration Act 1953 are triggered if an officer discloses information to an unauthorised person; substituting the reference for “Employment Secretary” determines who is authorised. Thus, the order can affect the scope of criminal liability for tax officers. There are no civil penalties or infringement notices associated with this order itself. The risk is that government agencies themselves may inadvertently apply the old reference, leading to legal error by the Commonwealth. The note in the order (after item 7) refers to textual references to “Employment Secretary” that are applications of definitions in the Income Tax Assessment Act 1997, reminding readers that the substitution affects those definitions. The order is self-executing: no separate enforcement action is needed to bring it into force; it operates as a legislative rule. The Attorney-General and Governor-General are the formal makers, but the Australian Government Solicitor and administrative lawyers rely on it to ensure lawful governance.

The instrument is made under section 19B of the Acts Interpretation Act 1901 and operates by deeming references in other Acts and instruments to be altered. The primary interaction is with the principal Acts Interpretation Substituted Reference Order 2017, which is amended by the 2019 Order. The 2017 Order remains the master instrument; the 2019 Order adds new tables and revises existing provisions. The interaction with each affected Act is direct and specific: for each provision listed in column 1, the reference is automatically substituted. For example, the Social Security Act 1991’s definition of “Employment Department” is no longer the department administered by the Minister administering the Fair Entitlements Guarantee Act 2012; it is the department responsible for employment policy. This means that for the purposes of the Social Security Act, any reference to “Employment Department” incorporates the substitute. Similarly, the Migration Regulations 1994’s definition of “Employment Minister” is changed, affecting all regulations that use that defined term. The instrument also interacts with the Taxation Administration Act 1953 and the Income Tax Assessment Act 1936 in a nuanced way: one substitution in the Secretaries table (item 2 of section 4.4) is qualified by “in so far as that provision applies in respect of the administration of the Fair Entitlements Guarantee Act 2012”. That means the same provision (item 4 of Table 1 in subsection 355-65(2) in Schedule 1 to the Taxation Administration Act) now has two possible substitute references depending on context. This creates an interaction with the Fair Entitlements Guarantee Act itself. The instrument affects the Classification (Publications, Films and Computer Games) Act 1995 by redefining “Indigenous Affairs Secretary”, which interacts with the classification system for material that involves Indigenous content. The instrument also interacts with the Aboriginal and Torres Strait Islander Act 2005 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006: references to “Department” are replaced with “National Indigenous Australians Agency”, which may affect the operation of provisions dealing with reporting, appointments or delegations. The Higher Education Support Act 2003 instruments (listed items 7-11) are changed, so grant determinations for Indigenous student programs are now administered by the NIAA. The Native Title Act 1993 interactions are significant: the CEO of the NIAA takes over functions previously held by the Secretary of the Department in relation to prescribed bodies corporate and other native title matters. The Stronger Futures in the Northern Territory Act 2012 references to “Department” and “Secretary” now point to the NIAA and its CEO. Because the instrument is retrospective in a limited sense (it operates from the specified date, which is before the instrument was made and registered), it interacts with the general law on retrospectivity. Section 19B of the Acts Interpretation Act 1901 permits such retrospectivity. The order also interacts with the Statutory Instruments Act 1992 in that it is a legislative instrument and is subject to tabling and disallowance (though the delegation notes may exempt it from sunsetting). Practitioners must cross-reference this order when reading the affected provisions.

This instrument is itself an amendment to the Acts Interpretation Substituted Reference Order 2017. The 2017 Order was the principal instrument that replaced earlier orders. The 2019 Order is the first amending order (the text references “Home Affairs transition day” which was a feature of the original 2017 Order, and Part 3 removes that definition). The 2017 Order had been previously amended to include substitutions based on the Home Affairs transition day (21 December 2017). The 2019 Order clarifies that those substitutions are expressed as “having effect on and after” that date rather than “made on” that date. This cosmetic change improves clarity. The 2019 Order also adds entirely new substitution tables for the employment and Indigenous affairs changes. The instrument was made on 27 June 2019 and commenced the day after registration (29 June 2019). However, the substitution tables it inserts have effect from dates earlier than the commencement: 29 May 2019 for the employment changes and 1 July 2019 for the Indigenous affairs changes. This means that for the period between the effect date and the commencement date, the order is retrospectively deeming the references to be changed from the earlier date. The Acts Interpretation Act 1901 permits this because the order is made under s 19B, which can provide for such retrospectivity. The source text does not indicate any later amendments to this 2019 Order. It is a one-off amending instrument. The principal 2017 Order continues to be the live instrument that consolidates all substitutions. Anyone researching the current law must use the consolidated version of the 2017 Order as amended by this 2019 Order and any later amending orders. The deletion of the definition of “Home Affairs transition day” in section 1.5 indicates that the transitional period for the Home Affairs machinery change is now completed, and that definition is no longer needed. The change from “made on” to “having effect on and after” standardises the language across all tables, making it clearer that the dates are the effect dates, not the making dates. There is no mention of any earlier amendments to the 2017 Order other than those relating to the Home Affairs transition day. The instrument itself is pristine and unamended.

The source text does not mention any litigation. The instrument itself is not likely to be the subject of direct litigation; rather, it would be cited in cases where the interpretation of an affected provision is disputed. The principal order (the 2017 Order as amended) may have been considered in cases where the identity of a Minister or Secretary was material, but no such cases are referred to in this instrument. The instrument’s significance is that it prevents litigation by providing a clear, legislative fix for ambiguous references after machinery changes. Without it, there could be disputes about whether a reference to a now-abolished department still operates by virtue of saving provisions or general interpretation principles. The order reduces interpretive uncertainty. However, if the order itself contains errors (for example, if a substitution misidentifies the correct agency), it could be challenged. The note in Part 2 (before the Secretaries table) warns that the column 2 references appear as textual references to “Employment Secretary” which are applications of the definition in the Income Tax Assessment Act 1997, indicating careful drafting to avoid mistakes. The application provision (item 5) ensures that the amendment to section 4.1 (the general substitution rule) applies to the new Secretaries table. That fine-tuning could be tested if a court had to decide whether the correct substitution was applied when the provision has multiple applications. Given that litigation over substituted reference orders is rare, and the instrument was made by the Governor-General on advice, it carries a strong presumption of validity. It is registered on the Federal Register of Legislation and subject to disallowance, but no disallowance motion is recorded in the source. The instrument has no litigation history that is disclosed; it is a routine administrative update.

Several traps warrant attention. First is the retroactivity: the substitutions for the employment changes take effect from 29 May 2019, but the instrument was not made until 27 June 2019 and registered on 28 or 29 June. This means that actions taken between 29 May and 29 June 2019 that relied on the old references could arguably have been incorrect if the instrument now deems the new reference to have always applied from 29 May. A person who dealt with the “old” Employment Minister in that gap period may have been dealing with the wrong official. The instrument does not include a saving provision for acts done in reliance on the old reference, so there is a risk of invalidity. Second, the fine-grained substitution for the Taxation Administration Act 1953 creates a trap: item 2 in the Secretaries table (section 4.4) substitutes a different reference depending on whether the provision applies “in respect of the administration of the Fair Entitlements Guarantee Act 2012” or not. A tax officer or taxpayer must determine which application applies, which may not always be clear. If the information relates partly to both, the correct reference is ambiguous. Third, the substitution of “Department” with “National Indigenous Australians Agency” in many Acts may have unintended consequences. The NIAA is not a Department of State; it is an agency. Some provisions that refer to “Department” may implicitly assume it is a Department with a Secretary who is a Departmental Secretary under the Public Service Act 1999. The CEO of the NIAA may not have all the same powers as a Departmental Secretary (e.g., certain delegations or administrative law immunities). Fourth, the instrument does not amend the substantive provisions themselves; it only deems references. If a lawyer uses an unconsolidated version of an Act that pre-dates the substitution, they may miss the change. Fifth, the order only amends the 2017 Order; if a research database does not include the amending order, the substitution will not appear. Sixth, the note in item 7 refers to textual references to “Secretary” in the Higher Education Support Act 2003 but the note is not part of the instrument; it is editorial. Yet it may be relied upon by readers. Seventh, the repeal of the definition of “Home Affairs transition day” could break cross-references in older versions of the 2017 Order, but since the 2019 Order only applies prospectively as an amendment, it is safe. Eighth, the substitution of “Secretary of the Department” with “Chief Executive Officer of the National Indigenous Australians Agency” raises questions about whether the CEO can delegate the same as a Departmental Secretary. The underlying legislation may have specific delegation provisions that reference the Secretary. The delegation provisions may not automatically cover the CEO. Practitioners should check the specific Act for delegation clauses. Ninth, the instrument does not list all affected provisions exhaustively; it only amends the 2017 Order. The 2017 Order itself contains many tables, and this instrument adds to them. A practitioner must consult the consolidated version. Tenth, the use of “having effect on and after” instead of “made on” is a clarification but could still cause confusion if a person thinks the substitution only applies from the date of the order. The effect date is earlier than the making date, so reliance on the making date would be wrong.

Compliance with this instrument is passive: it operates as a deeming rule that automatically changes references. The obligation to apply the correct reference lies on anyone interpreting or relying on the affected provisions. For government agencies, compliance means updating internal guidelines, delegations, forms, and websites to reflect the new reference. For example, the Department of Home Affairs (administering migration regulations) should ensure that any reference to Employment Minister in policy instruments or decision letters uses the substituted definition. The Department of Social Services should update its interpretation of “Employment Department” in the Social Security Act. The Australian Taxation Office should update its secrecy protocols so that officers know which Secretary to refer to when handling information relating to employment services versus the Fair Entitlements Guarantee. The National Indigenous Australians Agency must ensure its CEO exercises the newly vested powers appropriately and that delegations are formally issued under the relevant Acts. Private sector lawyers should ensure that when advising on a matter involving one of the listed provisions, they use the substituted reference from the effect date. For example, when reviewing a native title procedural step that occurred after 1 July 2019, the powers should have been exercised by the NIAA CEO, not the former Secretary. If a decision was made by the wrong official before the order was made but after the effect date, it may be voidable. To comply, practitioners should: (1) obtain the consolidated version of the Acts Interpretation Substituted Reference Order 2017 (as amended up to and including the 2019 Order); (2) check the tables in Parts 1, 2 and 3 of Schedule 1 for any provision relevant to their practice; (3) note the effect dates and the fine-grained qualification where applicable; (4) update any internal checklists or precedents that reference the old officials; (5) train staff on the changes, especially for those handling secrecy provisions or making decisions under the affected Acts; (6) for decision-makers, verify that any delegation from the previous Secretary still holds or whether a new delegation from the NIAA CEO is needed; (7) in litigation or administrative review, plead the correct decision-maker; (8) if applying the old reference inadvertently, consult the instrument’s retrospective operation to assess if the action was invalid and whether it can be remedied. The instrument itself does not require any active filing or notification; it is a law. Failure to comply with the substituted reference could lead to legal error, but there is no specific compliance obligation beyond applying the law correctly. The Attorney-General’s Department presumably issued a guidance note when the instrument was made, but the source does not include that. Practitioners should also monitor subsequent substituted reference orders, as the 2017 Order is updated periodically.