Acts Interpretation (Substituted References) Order 1998

The first concept is "substituted reference." This is a statutory direction that a reference in legislation to a particular Minister, Department, or Secretary is to be read as if it referred to a different office or body. The direction is mandatory: "has effect as if there were substituted a reference." It does not rewrite the text of the parent Act; it operates as an interpretive rule. The second concept is "provision." The order defines it as a provision in an Act or in an instrument under an Act. This includes sections, subsections, regulations, and rules. The affected provisions are listed specifically in column 4 of each schedule. Some items refer to whole Acts (for example, item 2 of Schedule 1 says "All provisions except those mentioned in item 1" for the Excise Acts), others to specific sections. The third concept is the distinction between the three categories: Ministers, Departments, and Secretaries. Each is treated separately because administrative changes may apply differently to each. For instance, the same portfolio change might require a new Minister but keep the same Department Secretary, or vice versa. The schedules are not symmetric: an existing reference to one Minister may split into substitute references to two or three different Ministers depending on the affected provision (see items 15-19 for the juggling of the former Minister for Industry, Science and Tourism among four different substitute portfolios). The fourth concept is the "existing reference" column, which names the former portfolio title. This is the reference that the order deems to be substituted. The "substitute reference" column lists one or more new titles. The use of "or" indicates that the substitute reference may be either of the named offices, depending on the context of the provision. For example, item 1 of Schedule 1 substitutes "Minister for Industry, Science and Resources or Minister for Sport and Tourism." This creates ambiguity as to which Minister exercises the power in a given case; the answer lies in the distribution of functions between those two portfolios. The order itself does not resolve that distribution; it simply provides that either Minister may be substituted. The fifth concept is the note at the end of the order. It states that the affected provisions may have been affected by other substituted reference orders before this order commenced, and may be affected after commencement. This means the order is part of a cumulative, layered set of instruments. There is no consolidation; each order stands on its own. A person reading a provision listed in column 4 cannot rely solely on this order; they must check whether a later order has superseded or added another substitution. The concept of "affected provision" is narrow: only provisions explicitly listed in the schedules are altered. If a provision mentions "the Minister for Primary Industries and Energy" and is not listed in any item, the old reference continues to apply literally, even if that portfolio no longer exists. That creates a risk of statutory dead letter or confusion about which current official holds the power.

The order directly affects any person or entity who must deal with a Commonwealth Minister, Department, or Secretary under the provisions listed in the schedules. This includes importers and exporters dealing with customs and excise matters under the Excise Tariff Act 1921 and the Customs (Prohibited Exports) Regulations. Item 1 of Schedule 1 means that for those provisions, the relevant Minister is now the Minister for Industry, Science and Resources or the Minister for Sport and Tourism, not the former Minister for Primary Industries and Energy. If an exporter applies to the wrong Minister based on the old reference, the order deems the application to have been made to the correct new Minister. That provides legal safety, but only if the applicant knows the order exists. The order affects applicants for visas and sponsors under the Migration Act 1958 and Migration Regulations, as item 8 of Schedule 1 substitutes references to the former Minister for Employment, Education, Training and Youth Affairs with references to the Minister for Employment, Workplace Relations and Small Business, the Minister for Employment Services, or the Minister for Education, Training and Youth Affairs. Anyone lodging a visa application that requires a ministerial intervention power must now direct that request to the correct new Minister. The order affects recipients of social security payments, because item 13 of Schedule 1 substitutes references to the Minister for Social Security with the Minister for Family and Community Services or the Minister for Community Services. Similarly, health and aged care providers and recipients are affected by item 14 (Minister for Health and Family Services or Minister for Family Services becomes Minister for Health and Aged Care or Minister for Aged Care). The order affects the defence and veterans sector via item 12 (Minister for Defence Industry, Science and Personnel becomes Minister for Defence or Minister for Veterans' Affairs). It affects the communications sector via items 5, 6, 15 (various former ministers become Minister for Communications, Information Technology and the Arts, or Minister for the Arts and the Centenary of Federation, or Minister for the Environment and Heritage for a tax provision). The order also affects private businesses that contract with or are regulated by government departments. For example, companies dealing with the Stevedoring Industry Levy Collection Regulations now deal with the Department of Transport and Regional Services rather than the former Department of Workplace Relations and Small Business (Schedule 2, item 6). The order imposes no direct compliance obligations on private persons; it operates on the law itself. However, those who ignore the substituted references risk misdirecting correspondence, missing application deadlines, or dealing with an official who no longer holds the relevant delegated power. Government lawyers, parliamentary drafters, and departmental officers are the primary audience because they must ensure statutory powers are exercised by the correct office. The order is crucial for anyone undertaking statutory interpretation of the listed provisions. Without it, a literal reading of the old reference could lead to an incorrect belief that a former Minister still holds the power.

This order creates no new duties or rights in the substantive sense. It is an interpretive direction. However, it does have an indirect effect on existing duties and rights under the affected provisions. For example, if a provision imposes a duty on a person to give a notice to "the Secretary to the Department of Primary Industries and Energy," the order (Schedule 3, item 1) says that duty is now owed to the Secretary to the Department of Agriculture, Fisheries and Forestry. The person's duty to give the notice remains; the recipient changes. Similarly, a right to apply to "the Minister for Social Security" for a review (if such a right exists in a listed provision) is now a right to apply to the Minister for Family and Community Services or the Minister for Community Services. The right itself is unchanged; the identity of the decision-maker is updated. The order ensures that duties and rights are not extinguished by administrative reorganisation. It prevents the absurd outcome that a statutory power lapses because the named ministerial office no longer exists. In that sense, the order preserves continuity of government functions, which is a practical benefit to citizens and businesses who rely on those functions. However, the order creates a subtle interpretive duty on anyone reading the affected provisions: they must be aware of the order and apply the substitute reference. Failure to do so could result in a person addressing the wrong official, leading to delay or rejection. There is no penalty for misdirecting a document due to ignorance of the order, but the practical consequence could be that the document is not received by the authorised decision-maker and therefore does not trigger a statutory time limit or obligation. The order also imposes a duty on government officers to accept documents that reference the old portfolio, because the order deems the reference to be substituted. An officer who refused to accept an application because it was addressed to "the Minister for Primary Industries and Energy" would be acting inconsistently with the order, and the application should be treated as if addressed to the correct Minister. That is a protective right for applicants. The order does not affect the substantive criteria for decision-making; it only affects who decides. It also does not affect the delegation of powers. If a Minister delegates a power to a departmental officer, the delegation continues under the new portfolio name unless revoked. The order is silent on delegations, but the substitution of the Minister's reference means that any delegation from the former Minister is treated as a delegation from the new Minister, by operation of the Acts Interpretation Act provisions on continuity.

The order itself contains no penalties and no enforcement mechanism. It is a regulation-making power exercised by the Governor-General on advice. There is no offence for failing to comply with the order because the order does not impose conduct obligations on natural persons or corporations. The order operates as a rule of statutory construction, not as a command. Enforcement of the underlying provisions (such as excise offences, migration offences, or customs offences) is unaffected. The penalty for a breach of the Customs (Prohibited Exports) Regulations, for example, remains the same; only the identity of the relevant Minister changes. However, there is a potential practical enforcement consequence if a person relies on the order to assert that a particular administrative action was taken by the wrong official. For example, if the Minister for Primary Industries and Energy (now substituted) purported to make a decision after the order commenced, the validity of that decision could be challenged on the ground that the wrong Minister acted. The order would likely validate the decision if the substitute Minister had the power, but if neither the old nor the new Minister had clear authority, a court might find the decision invalid. This is a risk for agencies that fail to update their internal procedures. The order also has implications for enforcement by regulators. If a regulator issues a direction under a provision that refers to "the Secretary to the Department of Primary Industries and Energy," the order ensures that direction is legally effective if issued by the new Secretary. No further amendment to the direction is required. The absence of penalties in the order does not mean it is inconsequential; it is the lynchpin that keeps many regulatory schemes operational. Without it, enforcement actions taken under old references could be challenged for want of authority. The order thus reduces the risk of litigation by clarifying the identity of officeholders. Enforcement officers should be aware of the order to avoid technical errors in legal proceedings. If a charge or notice cites the old ministerial reference, the order can be used to argue that the correct reference is the substitute. However, if the order itself is not cited in court, the tribunal might apply the literal text and find the notice invalid. That is a trap for the unwary prosecutor or applicant.

The order is made under the Acts Interpretation Act 1901, specifically subsection 19B(1), (2) and (3). That parent Act provides the legal authority for the Governor-General to make orders substituting references in Acts and instruments. The order interacts with each of the approximately 20 Acts and numerous regulations listed in the schedules. It does not repeal or amend those Acts; it provides a mandatory interpretive rule for reading them. The order sits alongside any other substituted references orders made before or after its commencement. The note explicitly warns that other orders under section 19B or 19BA may also affect the same provisions. This creates a layered interpretive regime: a provision may have been affected by Order X in 1996, then by this Order in 1998, then by Order Y in 2000. The reader must trace the chain. The order also interacts with section 19BA of the Acts Interpretation Act, which allows for substituted references by regulation in certain circumstances. The order itself is a legislative instrument and is subject to the Legislation Act 2003 (formerly the Legislative Instruments Act 2003) regarding tabling, disallowance, and registration. However, the order predates those Acts, so its validity is governed by the Acts Interpretation Act as it stood in 1998. The order interacts with the common law principle of statutory interpretation that a reference to a Minister is a reference to the Minister for the time being administering the relevant Act. The order displaces that principle because it substitutes a specific new portfolio regardless of which Minister administers the Act. That can create conflicts if the Act was also administratively assigned to a different Minister. The order interacts with the Administrative Arrangements Order, which is the primary instrument that distributes portfolios among Ministers. The order effectively incorporates the changes made by the Administrative Arrangements Order into the statutory text. If the Administrative Arrangements Order later changes again, this order remains in force unless a new substituted references order is made. Thus, there can be a mismatch between the order's substitute reference and the actual current portfolio if no subsequent update is made. That is a risk for aged provisions. The order also interacts with the acts that create the offices of Secretary, Department, and Minister. For example, the order substituting "Secretary to the Department of Primary Industries and Energy" with "Secretary to the Department of Agriculture, Fisheries and Forestry" relies on the existence of that latter department under the Public Service Act 1999. If that department were renamed, the order's reference would become stale.

The source document provided is the order as made on 12 November 1998. It is the original version. The order itself has not been amended in the source text. However, the note at the end of the order states that affected provisions "may, after the commencement of this order, be affected by other substituted references under other orders made under section 19B or 19BA of the Acts Interpretation Act 1901." This indicates that the order is not static; later orders may partially override or supplement it. But the order as a discrete instrument appears to have only this original version. The order was made by the Governor-General on advice, sealed with the Great Seal of Australia, and signed by Governor-General William Deane and Attorney-General Daryl Williams. It commenced on the date of making, 12 November 1998. The order was likely published in the Commonwealth of Australia Gazette. It is a legislative instrument and would have been subject to disallowance by either House of Parliament within 15 sitting days of tabling. There is no indication in the source that it was disallowed. The order is still in force as at the knowledge cut-off of the analyst, but its practical effect has been largely superseded by later machinery of government changes and subsequent substituted references orders. For example, in 2001, new orders would have been made after the Howard government's second term restructuring. The order is only a snapshot of the substitutions needed in 1998. The schedules reflect the portfolio names from that era: "Minister for Industry, Science and Resources" (abolished 2001), "Minister for Sport and Tourism" (later changed), "Minister for Agriculture, Fisheries and Forestry" (still exists but renamed), "Minister for Employment, Workplace Relations and Small Business" (abolished 2007). Therefore, the order's utility has decayed. A modern reader would need to trace the chain of substitutions through multiple later instruments. The order itself has not been formally repealed, to the best of the analyst's knowledge, but it is likely functionally dormant because later orders cover the same ground. Formal amendment of this order is rare; the typical practice is to make a new order rather than amend an existing one. There is no amendment schedule attached to the source. The amendment history of the order is essentially nil, which is typical for such administrative instruments.

The source document does not mention any litigation. There is no case law cited in the order itself, nor any reference to court decisions. The order is a mechanical instrument and unlikely to be the direct subject of litigation. However, it may be indirectly relevant in cases where the validity of an administrative decision turns on whether the correct Minister or Secretary acted. In such cases, a court would need to interpret the order to determine which officeholder had authority. For example, if a decision under the Excise Act 1901 was made by the Minister for Primary Industries and Energy after 12 November 1998, a taxpayer could argue that the decision was invalid because that office no longer existed and the order substituted a different Minister. The court would then apply the order and likely find that the decision was a nullity unless the new Minister ratified it. There are no reported High Court or Federal Court decisions specifically construing this order, based on the source. The order's provisions are straightforward and unlikely to generate interpretive disputes. The more likely area of litigation is the underlying provisions, where one party argues that the wrong official exercised a power. The order would be cited as an authoritative guide to who the correct official is. Given the order's age, if any litigation were to arise now, it would likely involve the chain of substitution rather than this order alone. The order is also relevant in judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977, where a decision-maker's identity must be correct. The order can be used to show that the decision-maker had authority. The absence of litigation history suggests the order has functioned as intended without creating controversy. That is a testament to its clarity, but also to the fact that parties rarely litigate machinery of government changes. The risk of litigation is low because the order is prophylactic: it prevents the invalidity that would otherwise arise from outdated references. If the order did not exist, there would likely be more litigation challenging decisions made under old portfolio names. In that sense, the order reduces litigation risk.

The first trap is that the order only applies to the provisions expressly listed in column 4. If a provision uses the same old reference but is not listed, the order does not substitute it. For example, if the Excise Tariff Act 1921 had a section 4 that still mentions the Minister for Primary Industries and Energy, that section is not covered by item 1 or 2 (item 1 covers sections 3 and 3A; item 2 covers all provisions except those in item 1). Wait, item 2 says "All provisions except those mentioned in item 1." That means every other provision in the Excise Tariff Act and Excise Act and Customs Regulations is covered. But not all Acts are covered; only those listed. So the trap is that an unlisted Act with the same old reference remains unsubstituted. The second trap is the use of "or" in many substitute references. Item 1 says "Minister for Industry, Science and Resources or Minister for Sport and Tourism." Which one? The order does not specify. The answer depends on which Minister has administrative responsibility for the particular provision under the Administrative Arrangements Order. The order merely says either will do; but if a decision is made by the Sport and Tourism Minister on a matter that falls under Industry, Science and Resources, that decision could be challenged for want of authority. The practitioner must cross-reference the Administrative Arrangements Order. The third trap is the note about other orders. The note warns that other orders may affect the same provisions. A person who finds this order and applies it without checking later orders may apply an outdated substitution. For example, a later order may have further substituted "Minister for Industry, Science and Resources" to "Minister for Industry, Tourism and Resources" or similar. The order itself provides no mechanism for identifying later orders; the onus is on the reader. The fourth trap is that the order substitutes references in provisions that may have already been affected by earlier orders. The note says those earlier orders still apply. So the reference must be traced through a chain. The fifth trap is that the order does not amend the text; it only directs a reading. This means that official reprints of Acts do not automatically incorporate the substitution. A lawyer reading a printed Act may see the old reference and miss the order. The order must be cited in submissions or decisions. The sixth trap is the definition of "provision." It includes instruments under an Act. So regulation 11 of the Customs (Prohibited Exports) Regulations is covered. But if that regulation is later repealed and remade, the new regulation is not covered unless it is the same provision identifier. The order only applies to provisions as they existed at the time. The seventh trap is that the order commences on 12 November 1998 but takes effect from that date. Any action taken before that date by the old Minister remains valid. Anything after must comply with the substitution. The eighth trap is the potential for inconsistent references within the same Act. For example, the Diplomatic Privileges and Immunities Act 1967 appears in items 16, 17, and 18 of Schedule 1 with different substitute references depending on the section. A person must check the specific section number. The ninth trap is that the order does not deal with references to "the Department" in the broad sense. Only listed Department references are substituted. If an Act refers to "the Department" without specifying which one, the order does not help; the meaning must be derived from the Administrative Arrangements Order. The tenth trap is the assumption that the order is still current. In 2025, the portfolio names are completely different. Relying on this order without checking later instruments is dangerous. It is better to use the current Federal Register of Legislation to find the most recent substituted references order.

Compliance with this order is passive: it requires awareness and correct application. For a government lawyer, compliance means ensuring that any decision, notice, or instrument issued under a listed provision cites the correct current Minister or Secretary as determined by the order. The first step is to identify whether the provision you are dealing with appears in any of the schedules. If it does, you must substitute the old reference with the new one. If the provision appears in multiple items with different substitute references (for example, different sections of the same Act), you must apply the correct item for that specific section. The second step is to note whether the substitute reference includes an "or". If it does, you must determine which of the listed Ministers or Secretaries has actual administrative responsibility for that power. That requires consulting the Administrative Arrangements Order or the relevant portfolio legislation. You cannot simply pick either; you must choose the one that matches the subject matter. The third step is to check for later substituted references orders. The Federal Register of Legislation contains a consolidated version of the order and also lists any later instruments that may have superseded it. You should search for "Acts Interpretation (Substituted References) Order" with later years (e.g., 2001, 2004, 2007) and apply the most recent order in the chain. The fourth step is to document the substitution. If you are drafting a legal document that relies on the provision, you should either cite the order or use the substituted reference directly. For example, instead of writing "the Minister for Primary Industries and Energy under section 165A of the Excise Act 1901," you would write "the Minister for Industry, Science and Resources under section 165A of the Excise Act 1901 (by virtue of the Acts Interpretation (Substituted References) Order 1998)." The fifth step is to ensure that any delegations or authorisations from the old Minister are updated. The order does not automatically carry over delegations; that requires a separate administrative action. The sixth step is to train staff who handle correspondence to recognise when an incoming letter uses an old ministerial reference. The letter should not be rejected; it should be treated as addressed to the correct substitute Minister. The seventh step is to maintain a current list of all substituted references relevant to your area of law. This reduces the risk of error. For private sector compliance, the practical guidance is: always check the current Commonwealth administration. If you are applying for a licence or a benefit, look at the department's website for the current Minister. The order is a safety net, but not a substitute for checking the current organisation. If you have an old form that references a pre-1998 Minister, you can use it, but you should cross out the old reference and write the new one. The form will be valid. The eighth step is to be aware that the order applies to regulations and instruments, not just Acts. If you are subject to a regulation listed in the schedules, the same substitution applies. The ninth step is to audit any existing contracts or agreements that reference a Minister or Department by name. If they refer to a pre-1998 portfolio, the order likely updates the reference for statutory purposes, but the contract's own interpretation may need an amendment to reflect the new counterparty. The order does not affect private contracts. The tenth step is to consult a legal professional if there is any doubt about which Minister to address. The cost of misdirection can be delays or loss of rights. The order itself imposes no penalty for non-compliance, but the underlying statute may impose consequences for dealing with the wrong decision-maker.