Acts and Instruments (Framework Reform) Act 2015 (10 of 2015)

Schedule 2   Machinery of government changes

Part 1   Acts Interpretation Act 1901

3   Sections 19, 19A, 19B, 19BA, 19BAA, 19BB, 19BC, 19BD, 19C and 20

Repeal the sections, substitute:

19 References to Ministers in Acts

(1) If a provision of an Act refers to a Minister, the following table provides which Minister the provision refers to in relation to a particular matter (the relevant matter ) on a particular day (the relevant day ).

(2) Instruments including the following, as in force on the relevant day, or any earlier day, may be used to work out which Minister (or Ministers) is referred to under subsection (1):

(a) an Administrative Arrangements Order;

(b) a substituted reference order under section 19B.

Note: Substituted reference orders under section 19B may have effect in relation to days before the orders are made.

(3) To avoid doubt, if, because of this section, a provision of an Act is taken to require anything to be done by or in relation to any one of 2 or more Ministers, the provision is not taken to require it to be done in any particular case by or in relation to more than one of those Ministers.

Acting Ministers

(4) If a provision of an Act refers to a Minister, the reference is taken to include a reference to a Minister or member of the Executive Council for the time being acting for or on behalf of the Minister.

19A References to Departments in Acts

(1) If a provision of an Act refers to a Department, the following table provides which Department the provision refers to in relation to a particular matter (the relevant matter ) on a particular day (the relevant day ).

Example: A provision of an Act refers to “the Secretary of the Department” but does not identify which Department is referred to. Under item 1, the reference is to the Secretary of the Department administered by the Minister who administers that provision in relation to the relevant matter, and that deals with that matter, as worked out under subsection (2).

(2) Instruments including the following, as in force on the relevant day, or any earlier day, may be used to work out which Department is identified by the table in subsection (1):

(a) an Administrative Arrangements Order;

(b) a substituted reference order under section 19B.

Note: Substituted reference orders under section 19B may have effect in relation to days before the orders are made.

19B Machinery of government - substituted reference orders

Scope

(1) This section applies if:

(a) a provision of an Act refers to an authority (see subsection (7)); and

(b) any of the following happens:

(i) the authority is abolished;

(ii) the name or title of the authority is changed;

(iii) there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order;

(iv) the reference to the authority becomes no longer appropriate for any other reason.

Substituted reference orders - Ministers, Departments, Agencies and offices

(2) The Governor-General may make a substituted reference order directing that the provision is to have effect for all purposes, on and after a day specified in the order:

(a) as if there were substituted, for the reference to the authority mentioned in subsection (1), a reference to another specified authority (or authorities); or

(b) as if, in so far as the provision applies in a particular respect specified in the order, there were substituted, for the reference to the authority mentioned in subsection (1), a reference to another specified authority (or authorities).

Note: A substituted reference order may be amended or revoked in the same way as it is made (see subsection 33(3)).

(3) The day specified in the order (as the day on and after which the order is to have effect) may be a day before the order is made.

(4) A substituted reference order has effect according to its terms.

Note: The order has effect for the purpose of the making of any subsequent order under this section.

(5) A substituted reference order is a legislative instrument.

Authority abolished and another established with the same name

(6) A substituted reference order must not be made only because an authority is abolished, and, immediately after its abolition, another authority of the same type, with the same name, is established.

Note: However, a substituted reference order may be made if either of the following happens in relation to the authority;

(a) there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order (see subparagraph (1)(b)(iii));

(b) a reference to the authority becomes no longer appropriate for any other reason (see subparagraph (1)(b)(iv)).

Definition of authority

(7) In this section:

authority means any of the following:

(a) a Minister;

(b) a Department of State of the Commonwealth;

(c) any other Agency within the meaning of the Public Service Act 1999;

(d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office.

Note: Offices are offices in and for the Commonwealth (see section 21). An example is the office of Secretary of a Department of State.

19C Machinery of government - references to authorities in Commonwealth agreements

Scope

(1) This section applies if:

(a) a provision of an agreement entered into by or on behalf of the Commonwealth refers to an authority (see subsection (6)) in relation to a particular matter (the relevant matter ); and

(b) any of the following happens after the agreement was entered into:

(i) the authority is abolished;

(ii) the name or title of the authority is changed;

(iii) there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order;

(iv) the reference to the authority becomes no longer appropriate for any other reason.

References to authorities in Commonwealth agreements

(2) The following table provides which authority the provision of the agreement is taken to refer to in relation to the relevant matter on a particular day (the relevant day ) after the most recent event mentioned in paragraph (1)(b).

(3) The following instruments, as in force on the relevant day, or any earlier day, may be used to work out which authority is taken to be referred to under subsection (2):

(a) an Administrative Arrangements Order;

(b) a substituted reference order under section 19B.

Note: Substituted reference orders under section 19B may have effect in relation to days before the orders are made.

(4) The Minister administering the Department of State of the Commonwealth that deals with the relevant matter may, by notifiable instrument, make a determination for the purposes of item 3 of the table in subsection (2).

Note 1: A determination may be amended or revoked in the same way as it is made (see subsection 33(3)).

Note 2: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

(5) To avoid doubt, if, because of this section, a provision of an agreement entered into by or on behalf of the Commonwealth is taken to require anything to be done by or in relation to any one of 2 or more Ministers, the provision is not taken to require it to be done in any particular case by or in relation to more than one of those Ministers.

Definition of authority

(6) In this section:

authority means any of the following:

(a) a Minister;

(b) a Department of State of the Commonwealth;

(c) any other Agency within the meaning of the Public Service Act 1999;

(d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office.

Note: Offices are offices in and for the Commonwealth (see section 21). An example is the office of Secretary of a Department of State.

19D Machinery of government changes - saving the validity of acts done by authorities

Saving the validity of acts done by authorities

(1) The purported exercise or performance of a power, function or duty by or on behalf of an authority (see subsection (5)) is not invalid merely because, following a machinery of government change, the power, function or duty:

(a) is conferred or imposed on another authority; or

(b) is conferred or imposed on the same authority under another name or title; or

(c) is no longer conferred or imposed on any authority.

(2) Subsection (1) only applies if the authority acted on the basis of a reasonable, but mistaken, belief about the occurrence, timing or nature of the machinery of government change.

Machinery of government change

(3) For the purposes of this section, a machinery of government change occurs if any of the following applies in relation to an authority:

(a) the authority is abolished;

(b) the name or title of the authority is changed;

(c) there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order;

(d) the authority no longer exercises or performs the power, function or duty for any other reason.

Powers, functions and duties

(4) This section applies in relation to a power, function or duty purportedly exercised or performed by or on behalf of an authority, whether before or after the machinery of government change, under any of the following:

(a) an Act or legislative instrument;

(b) an agreement entered into by or on behalf of the Commonwealth;

(c) any other authorisation under a law of the Commonwealth.

Definition of authority

(5) In this section:

authority means any of the following persons or bodies:

(a) a Minister;

(b) a Department of State of the Commonwealth;

(c) any other Agency within the meaning of the Public Service Act 1999;

(d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office.

Note: Offices are offices in and for the Commonwealth (see section 21). An example is the office of Secretary of a Department of State.

20 References to holders of appointments, offices and positions in Acts and Commonwealth agreements

In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:

(a) hold or occupy the office, appointment or position; or

(b) perform the duties of the office, appointment or position.