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

The Order rests on a small set of statutory drafting devices and practical concepts. First, the statutory term "provision" is broadened to include both Act provisions and provisions in instruments made under Acts (s 2). Second, substitution is implemented by reading new names into existing statutory references, creating a statutory fiction that the earlier references were always to the substituted office from the operative date specified in each Part (ss 3-5). The critical language is "has effect on and from the date mentioned in the heading to that Part, as if there were substituted a reference to" the substitute. That phrasing defines both the temporal operation (on and from the Part-heading date) and the method (reading the substitute name into the provision).

The Schedules are structured by subject-matter: Schedule 1 records substitutions for "References to Ministers" (s 3), Schedule 2 for "References to Departments" (s 4) and Schedule 3 for "References to Secretaries" (s 5). Each Schedule is organised into Parts, and each Part identifies the date on which the entries in that Part take effect. The affected provisions column in the tables can identify Acts in full, particular sections or subsections, instrument classes, or instruments made under specified Act provisions. Where a row lists "provisions of" followed by an Act and "any instrument made under that Act", the substitution applies both to the Act and to subordinate instruments, unless an express exception is recorded (for example, the entry for the Australian Hearing Services Act 1991 in Part 1 excludes subsections 8(4) to 8(8)).

The Order expressly contemplates interaction with other substituted-reference orders. The Note appended to s 5 puts parties on notice that a Schedule entry "may have been affected, before the commencement of this Order, by other substituted references under other orders made under section 19B or 19BA" and "may be affected, after the commencement of this Order" either by a revocation under s 19BB or by other s 19BA orders. In practice that means substitutions are cumulative and potentially overlapping; different orders may substitute different titles for the same provisions at different dates. The Order supplies no dispute-resolution mechanism for conflicting orders, but it records those other statutory hooks and the possible sequence of substitution and revocation.

Examples in the Schedules illustrate the concept: in Part 1 (18 November 2004) an entry substitutes "Minister for Industry, Tourism and Resources; or Minister for Small Business and Tourism" for older ministerial titles in provisions of the Plant Breeder’s Rights Act 1994. In Part 5 (2015), the Entry 1 substitutes "Minister for Communications" for "Attorney‑General" in many provisions of the Copyright Act 1968, save subsection 183(6) which is separately substituted. These table entries show that the Order operates at an instrument- and provision-specific level rather than by an omnibus renaming of all Commonwealth law.

The immediate legal effect of the Order is to change which office-holders, departments and secretaries are to be treated as the relevant decision-makers or administrative contacts under the listed provisions. That produces concrete effects for a set of actors.

• Commonwealth decision-makers and agencies named in the underlying Acts and instruments, including the incumbent ministers, departments and secretaries listed as substitutes in Schedules 1-3. For example, where the Plant Breeder’s Rights Act 1994 refers to the "Minister for Agriculture, Fisheries and Forestry", the Order instructs readers to treat that reference as to the "Minister for Industry, Tourism and Resources; or Minister for Small Business and Tourism" from 18 November 2004 (Schedule 1, Part 1 Item 1). Similarly the Copyright Act 1968 provisions (variously) were substituted to refer to the "Minister for Communications" on commencement of the 2015 Amendment Order (Schedule 1, Part 5 Item 1). The effect is to vest, for statutory-reading purposes, functions previously described as attached to one minister in the substitute minister.

• Commonwealth departments and their staff, who must treat internal delegations, administrative responsibilities and correspondence in light of the substitute departmental names. Schedule 2 identifies department-level substitutions (for example, Department of Agriculture, Fisheries and Forestry -> Department of Industry, Tourism and Resources for the Plant Breeder’s Rights Act 1994). Departments receiving substituted references may need to ensure that their administrative frameworks reflect the legal reading supplied by the Order.

• Secretaries and statutory officers, where Schedule 3 substitutes references to Secretaries of departments in provisions of Acts and instruments (for example in relation to Plant Breeder’s Rights, Social Security and Australian Hearing Services). Those who examine statutory powers or accountability lines must read the substitute Secretary into the relevant text.

• Third parties and regulated entities who interact with the listed Acts, such as claimants under social security provisions, participants in disability services, users of copyright licensing regimes, registrants under the Plant Breeder’s Rights Act, or users of Australian Hearing Services. For these actors the substitution may change which minister, department or Secretary is formally answerable for a decision or to whom administrative or FOI/complaint approaches must be directed. The Order specifically lists which provisions and instruments are affected, so affected stakeholders are those whose rights, obligations or remedies arise under those provisions.

• Legal advisers, compliance officers, registrars and publishers of legislation who must update precedents, guidance and cross-references. Because the Order applies to instruments under Acts, it affects subordinate legislation and administrative instruments as well as primary Acts. The Order therefore imposes a monitoring and administrative cost on those who must ensure their documents, notices, delegations and contact details reflect the substituted references.

The source does not quantify who pays for the administrative transitions; the cost burden is visible in the parties that must change operational records and legal citations: departments, ministers’ offices, statutory agencies, legal teams and regulated entities listed in the Schedules. The Order shifts the identity of the decision-maker or administrative contact, rather than creating new substantive duties or funding lines; operational consequences arise from that change in identity.

The Order itself does not create new policy duties or rights. Its principal legal operation is to substitute names so that existing duties and rights in the affected provisions are read as vested in the substitute office-holder or agency. The mechanics are set out in ss 3-5: where a provision in column 4 of a Schedule item mentions the earlier office, it "has effect on and from the date mentioned in the heading to that Part, as if there were substituted a reference to the" substituted office named in column 3.

Operationally, that reading shifts the locus of statutory powers, decision-making and accountability that are expressed in the underlying legal instruments. For example:

• Functions, powers, duties or discretions expressed as being exercisable by a named "Minister" will be read as exercisable by the substitute minister from the Part-heading date. This changes who legally makes decisions, grants consents, issues notices or performs other statutory acts described in those provisions. See Schedule 1 entries (s 3).

• Duties and powers entrusted to a named "Department" are read as entrusted to the substitute Department in Schedule 2 items (s 4). That affects administrative responsibility and the department that must act on, implement, or be answerable about the statutory function.

• References to a named "Secretary" in statutory provisions or instruments are read as references to the substituted Secretary listed in Schedule 3 (s 5). That substitution affects the officer who may be specified as responsible for action, reporting or compliance.

Rights and remedies that arise under affected provisions are not extinguished; instead the relevant recipient or decision-maker for exercise of those rights is determined by the substituted reference. For instance, a right to seek review, complaint, or review by a minister under a listed Act remains a right; the Order alters which minister is formally the addressee or decision-maker in the text of the law.

The Order contains and highlights specific exceptions in its table entries. For example, several entries qualify that the substitution applies "except subsections 8(4) to 8(8)" of the Australian Hearing Services Act 1991, or that the substitution excludes subsection 183(6) of the Copyright Act 1968 (Schedule 1, Part 5 Item 1). Those carve-outs preserve particular textual references where the drafters intend the original reference to remain. The Order does not itself reassign funding or statutory tenure; it simply reassigns the language of the statute so that future readings of the statute identify the substitute office.

Practically, rights-holders and duty-bearers must treat the substituted office as the responsible party for purposes of compliance, appeal paths, notices and liaison from the operative date in the Part heading. Administrative actors must ensure delegations and authorisations align with the substituted references to avoid procedural defects in decision-making.

The Order does not create new criminal offences, civil penalties or regulatory sanctions. It is an interpretative instrument whose legal effect is to read substituted titles into existing provisions. Any penalties, enforcement mechanisms, infringement notices, or prosecution regimes continue to derive from the underlying Acts and instruments identified in the Schedules. The Order affects only which office-holder, department or secretary is read into the enforcement provisions.

Two enforcement-related consequences follow from that mechanism:

• The identity of the decision-maker or enforcement authority referred to in penalty or enforcement provisions will be read as the substitute office listed in the Schedule item, from the Part-heading date. For example, if an enforcement power in the Plant Breeder’s Rights Act 1994 was exercisable by a specific ministerial title, that power is read as exercisable by the substitute minister named in Schedule 1, Part 1 Item 1 from 18 November 2004. The Order therefore alters the statutory addressee or enforcing authority on paper, and administrative practice should align to that legal reading.

• Because the Order applies to instruments made under Acts as well as to the Acts themselves (see the "affected provisions" columns that include "any instrument made under that Act"), the enforcement provisions appearing in subordinate instruments will likewise reflect the substituted names. Compliance notices, penalty regimes and delegated enforcement actions specified in subsidiary instruments must be matched to the substitute office for formal validity and practical administration.

The Order itself does not prescribe enforcement processes for ensuring that agencies update references or rectify any procedural problems that may arise from misidentifying the relevant office. Where procedural decisions are challenged, the applicable enforcement or review mechanisms remain those provided in the underlying Act. The Order does note that parts of it may be revoked by an order under section 19BB of the Acts Interpretation Act 1901 and may be further modified by other substituted reference orders, which creates a dynamic administrative environment; however the Order contains no express fine, penalty or administrative sanction for failing to adopt the substituted references in practice.

If an enforcement action were to be challenged on the ground that the wrong office took the step, the statutory fiction created by this Order (that the substitute name is read into the provision from the operative date) is an explicit legal basis for defending actions taken by the substitute office. The Order therefore functions as an evidentiary and interpretive tool to support the legality of actions taken under the substituted reading.

The Order is itself an instrument made pursuant to the Acts Interpretation Act 1901, specifically drawing on sections dealing with substituted references. The text included in the Order explicitly references other provisions of the Acts Interpretation Act: it states that a Schedule provision "may have been affected, before the commencement of this Order, by other substituted references under other orders made under section 19B or 19BA of the Acts Interpretation Act 1901; and (b) may be affected, after the commencement of this Order: (i) by an order made under section 19BB of the Acts Interpretation Act 1901 revoking a part of this Order; or (ii) by other substituted references under other orders made under section 19BA of the Acts Interpretation Act 1901" (note following s 5). The Order thus presumes an administrative ecosystem where multiple substituted-reference orders can be layered, revoked or replaced.

Practically, that means:

• Substituted references under this Order are not unique or exclusive; earlier or later orders under s 19B, 19BA or revocations under s 19BB may have or will change the same provisions. The correct legal reading of a provision at a given time therefore requires checking all relevant substituted-reference orders as well as the principal Act and instruments.

• The Order explicitly applies to "a provision in an Act or in an instrument under an Act" (s 2). Because subordinate instruments are included, the Order interacts with delegated legislation regimes. If a subordinate instrument names an old department or minister, the Order operates to read in the new name for the purpose of interpreting that subordinate instrument.

• The Order operates by statutory reading rather than by amending the primary Acts or subordinate instruments themselves. That means textual searches in a consolidated law database may show the original names; a legal practitioner must be alert to the substituting orders to determine the operative addressee. This is particularly relevant when multiple orders have modified references over time, as the Order warns.

• The Order contains some specific cross-references to other legislative instruments and guidance instruments that have been or will be reassigned to different departments. Part 5 and the Schedule entries for 2015 show a cluster of communications- and arts-related transfers (for example, multiple entries substitute "Department of Communications and the Arts" for various former Attorney-General's Department references in classification guidelines and approvals). These entries demonstrate how the Order interacts with administrative arrangements, moving functions between portfolios.

• The Order does not alter substantive legal obligations in other laws; it merely reallocates the identity of the office-holder or agency in the wording of provisions. Consequently, doctrines about statutory interpretation, delegation validity, or retention of rights under previously made decisions remain governed by the underlying Acts and jurisprudence outside this Order. The Order does not create a new conflicts resolution rule beyond the Acts Interpretation Act hooks it references.

Because multiple substitute-reference orders can exist, practitioners must treat the Order as one element in the chain of interpretative instruments affecting the identity of responsible ministers, departments and secretaries. The Order itself warns of that possibility and delegates to the Acts Interpretation Act the procedural mechanisms for revocation (s 19BB) and further substitution (s 19BA).

The Order records a sequence of substitutions across multiple dates. The Schedule layout identifies Parts and the dates on which those Parts' substitutions were made. The relevant entries in the Order text show the following chronology, as recorded within the instrument itself:

• Part 1,Substitutions made on 18 November 2004. Across Schedules 1-3 this Part contains a cluster of substitutions transferring references for a number of Acts. Examples include reassigning the Minister for Agriculture, Fisheries and Forestry to Ministers for Industry, Tourism and Resources or Small Business and Tourism for the Plant Breeder’s Rights Act 1994; reassigning Departmental names such as Department of Agriculture, Fisheries and Forestry to Department of Industry, Tourism and Resources; and corresponding Secretary substitutions.

• Part 2,Substitutions made on 18 December 2007. In Schedule 1 (Ministers) this Part contains a single entry substituting "Cabinet Secretary" for "Attorney‑General" in subsections 68(1) and 70(1) and (2) of the Privacy Act 1988.

• Part 3,Substitution made on 21 May 2010. In Schedule 1 an entry substitutes "Minister for Finance and Deregulation" for "Attorney‑General" in provisions of the Judges’ Pensions Act 1968 and instruments under that Act.

• Part 4,Substitutions made on 16 October 2010. In Schedule 1 an entry substitutes "Minister for Privacy and Freedom of Information" for "Cabinet Secretary" in provisions of the Privacy Act 1988 and instruments under that Act.

• Part 4A,Substitutions made on 14 December 2011. In Schedule 1 an entry substitutes "Attorney‑General" for "Minister for Privacy and Freedom of Information" in provisions of the Privacy Act 1988 and instruments under that Act, effectively restoring responsibilities to the Attorney‑General for Privacy Act matters as recorded in that Part.

• Part 5,Substitutions made on commencement of the Acts Interpretation (Substituted References,Section 19BA) Amendment Order 2015 (No. 1). This Part contains multiple entries including substitution of "Minister for Communications" for "Attorney‑General" in provisions of the Copyright Act 1968 (except subsection 183(6) which is treated separately), substitution of the Treasurer to the Minister for the Environment in the definition of "responsible Ministers" in section 4 of the Clean Energy Finance Corporation Act 2012 (Schedule 1, Part 5 Items 1-4 illustratively). Schedule 2 and Schedule 3 contain corresponding department and secretary substitutions with a Part 3 (for those Schedules) noting commencements under the same 2015 Amendment Order.

Schedule 2 contains an additional Part 2 substitution made on 6 March 2008 that changes certain department names (for example, Department of Families, Housing, Community Services and Indigenous Affairs -> Department of Education, Employment and Workplace Relations for clauses 1 and 19 of Schedule 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000).

The Order’s own Note under s 5 reminds readers that a provision in its Schedule may have been subject to earlier substituted references under s 19B or s 19BA and may be subject to revocation under s 19BB or other substituted-reference orders thereafter. The Order thus documents a rolling administrative process for reassigning statutory references reflecting changes in administrative arrangements, ministerial portfolios and departmental names.

The Order text contains no litigation record and does not cite any cases. It is an administrative, interpretative instrument; the source provides no examples of judicial consideration or reported challenges to the Order itself. The only references to other legal hooks are to the Acts Interpretation Act 1901 (sections 19B, 19BA and 19BB) within the Notes to s 5, which describe possible pre- or post-commencement substitution activity and revocation.

Because the Order is a text that modifies how statutory references are to be read, disputes that might arise in litigation would typically concern the construction of an underlying Act or instrument as read with substituted references in force at relevant dates. The Order anticipates such temporal issues by specifying that each substitution "has effect on and from the date mentioned in the heading to that Part" (ss 3-5). The Order contains no litigation guidance, remedial provisions, or transitional dispute-resolution rules beyond that temporal clause and the Acts Interpretation Act cross-references.

Absent further materials in the source, no reported litigation history can be recorded. Practitioners facing disputes about whether a substitution applied at a particular time should therefore consult the primary Acts, the subordinate instruments, the relevant substituted-reference orders (including any prior or subsequent s 19BA orders) and the Acts Interpretation Act provisions the Order references. The Order itself provides the legal basis for reading substituted titles into provisions; any judicial enquiry about the legality of an administrative action taken by the substitute minister or department would turn on the operation of that Order as an interpretative instrument together with the substantive provisions of the underlying Act.

Several concrete pitfalls flow from the Order’s mechanics and the way its Schedules are constructed.

1. Timing is provision-specific. Each substitution applies "on and from the date mentioned in the heading to that Part" (ss 3-5). Different Parts have different dates. A practitioner cannot assume that the whole Order took effect on a single date. For example, many substitutions in Part 1 take effect on 18 November 2004, while others in later Parts take effect on dates in 2007, 2010, 2011 and on commencement of the 2015 Amendment Order. Errors arise if one assumes a blanket substitution date for all listed entries.

2. Substitutions can be partial and contain carve-outs. Some entries explicitly exclude particular subsections (for example, the Copyright Act entry excludes subsection 183(6); the Australian Hearing Services Act entries exclude subsections 8(4) to 8(8)). Practitioners must check the affected-provision column carefully rather than assume the substitution is universal for an Act or instrument.

3. Substitutions apply to subordinate instruments as well as Acts. The affected provisions columns often say "any instrument made under that Act" or explicitly list instruments, approval instruments, guidelines and determinations. That means delegated legislation, approvals, classification guidelines and similar materials may be affected; procedural and administrative references in instruments must be reviewed. The tables include specific instrument titles, such as the Guidelines for the Classification of Films 2012, which were reassigned to the Department of Communications and the Arts in a 2015 substitution.

4. Overlapping or sequential substituted-reference orders. The Order itself warns that provisions may have been affected by earlier substituted-reference orders under s 19B or s 19BA and may be affected by later orders or revocations under s 19BB. When cross-checking which office is legally responsible at a given date, the practitioner must search for all substituted-reference orders relevant to the same provision and for any revocation orders under s 19BB.

5. Discrepancies between consolidated text and interpretive orders. Consolidated statute databases may display original ministerial or departmental names but not always indicate substituted-reference orders in force. Users relying on a database output alone risk using outdated titles. The Order instructs a legal reading but does not physically amend the text of the principal Act in statute-books; the substituted reading is an interpretative remedy.

6. Multiple-substitute naming conventions. Some rows provide alternative substitute names joined by "or" (for example "Minister for Industry, Tourism and Resources; or Minister for Small Business and Tourism"). That reflects multiple possible incumbents or portfolio arrangements. Practitioners must interpret which substitute applies in practice, noting that the Order reads those alternatives into the provision without specifying which applies at any one time. Administrative arrangements, subsequent orders or current machinery of government instruments will clarify which substitute office is the correct contact.

7. Administrative follow-through. The Order changes the legal reading; it does not ensure that departmental organisational charts, delegations or published guidance are updated. Failure to update operational documents can lead to misdirected notices, procedural irregularities or confusion in FOI and administrative complaint channels.

8. Variations in granularity. Some entries substitute a ministerial title for a single subsection number (for example Privacy Act subsections 68(1) and 70(1),(2) in Schedule 1 Part 2), while others substitute names for whole Acts and "any instrument made under that Act". This variability requires a clause-by-clause check to identify whether a specific power or duty is affected.

9. Revocation risk. The Order expressly contemplates that parts may be revoked by s 19BB orders. A revocation order could reassign a responsibility back to an earlier title or to a different office. Compliance systems must therefore track both current substitutions and any revocations that post-date them.

10. Cross-portfolio policy implications. While the Order is interpretative, the reassignment of statutory reading can imply a change in which portfolio answers to Parliament or the public for particular statutory functions. That has practical implications for ministerial briefings and for parties seeking ministerial intervention. Practitioners should not infer policy shifts from the Order alone, but they must map the new legal accountability lines to operational responsibilities.

Careful, provision-level checking of the Schedules, the relevant Part dates, and any other substituted-reference orders is required to avoid these pitfalls. The Order supplies the raw mappings, but the practical application requires checking concurrent administrative arrangements and subsequent legislative instruments.

The Order requires no affirmative compliance filing by external parties; it imposes an interpretative change. Nevertheless, organisations and practitioners should take the following practical steps to align operations and legal practice to the Order’s effect.

1. Inventory affected provisions. Start with the Schedules and compile an inventory of all Acts, subsections and instruments that are listed as affected provisions. Use the Schedule rows as primary source citations rather than relying on secondary consolidations. Note the precise Part heading date for each inventory item (for example Schedule 1 Part 1,18 November 2004; Schedule 1 Part 5,commencement of the 2015 Amendment Order).

2. Update internal references and templates. Replace mentions of the old ministerial, departmental or Secretary titles in internal manuals, templates, delegation instruments, published contact pages and statutory notices with the substituted title where the substitution applies from the operative date. Where an entry includes alternatives ("or"), confirm which portfolio or minister holds the function in practice by consulting machinery-of-government notices or the department’s organisational chart.

3. Review delegations and authorisations. Check whether delegations or instruments of authorisation that reference the old title will be valid under the substituted reference. If an internal delegation instrument names the wrong office-holder by title, consider whether re-executing or re-issuing forms of delegation is necessary to avoid procedural challenge. Document reliance on the substituted-reference Order where appropriate.

4. Check subordinate instruments. Because the Order applies to instruments under Acts, review subordinate legislation, determinations, guidelines and approvals (some of which are expressly named in the Schedule entries). Update administrative practice to ensure that delegated powers are exercised by or under the substituted office’s authority.

5. Communicate to stakeholders. Notify affected stakeholders about the change in who is the formal named decision-maker or contact for affected statutory regimes. For those required to serve notices on ministers or departments, provide the substituted title and the operative date, and advise on any practical changes to correspondence addresses or online contact points.

6. Maintain a record of effective dates and source authority. For each substitution applied operationally, keep a concise record citing the Schedule item, Part heading date and the Order’s section (s 3, s 4 or s 5) as the legal basis for the change. This evidentiary trail helps defend decisions or clarify procedural questions where a third party questions the identity of the decision-maker.

7. Keep an eye on revocations and later substitutions. Because the Order records (and the Acts Interpretation Act permits) later orders and revocations, maintain a process to re-check substituted-reference orders periodically, particularly if functions or portfolios are known to be in flux. Search for s 19BB revocation orders and additional s 19BA orders that may modify the mapping.

8. Address carve-outs precisely. Where the Schedule lists an exclusion (for example Australian Hearing Services Act subsections 8(4)-8(8) excluded), ensure those carve-outs are respected in operational procedures. Do not apply the substitution to excluded subsections.

9. Coordinate ministerial and departmental briefings. For departments and ministers accepting substituted responsibilities, confirm that ministerial briefings, ministerial diaries and parliamentary answers reflect the substituted statutory readings and that staff know which legal functions are read into their portfolio.

10. Seek legal confirmation for high-risk decisions. If a significant statutory decision turns on the identity of the decision-maker (for example, a contested exercise of regulatory power, a high-value licensing decision or contested enforcement action), obtain a short legal opinion or internal memorandum that cites the specific Schedule entry, Part date, and the Acts Interpretation Act authority for the substitution to ensure the decision-maker’s authority will stand scrutiny.

Practically, compliance is administrative and documentational: map the substitution, update texts and delegations, document the legal source, and monitor for subsequent orders. The Order supplies the statutory basis for reading the substitute names into provisions; organisational compliance requires aligning internal processes to that reading so that notices, decisions and appeals are directed to and made by the legally correct office from the operative date.