Senate

Replacement Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 2 - Machinery of Government Changes

GENERAL OUTLINE

Following an election, and in other circumstances, there may be organisational or functional changes, known as machinery of government changes, affecting the Australian Government. These changes may involve the renaming of the titles of Ministers, Departments or other agencies; the abolition of a position, Department or other agency; or the transfer of responsibility for a specific Act or function between ministers, Departments or other agencies. Machinery of government changes are generally reflected in changes to the Ministry list and the Administrative Arrangements Order.

Schedule 2 amends the Acts Interpretation Act to expand and simplify the provisions dealing with machinery of government changes. The amendments broaden the rules used for interpreting references to Ministers and Departments in legislation, reducing the need to make substituted reference orders. Substituted reference orders are instruments that can be made to alter how specific references to Ministers, Departments and Secretaries of Departments in legislation are read.

The amendments also provide greater flexibility in the use of substituted reference orders. Substitutions will be possible for references to a broader range of authorities. For example, these orders will be used to address the transfer of administrative responsibility from a Department to a different type of agency, rather than only being available where the transfer is between two Ministers, two Secretaries or two Departments.

The amendments broaden the rules for interpreting references to authorities in agreements entered into by or on behalf of the Commonwealth. They are intended to help ensure the continued validity of the exercise of powers, functions and duties under such agreements following machinery of government changes.

The amendments also provide a broader savings provision for the validity of acts done by any type of authority (not just Ministers) under an agreement as well as in the exercise or performance of powers, functions and duties under legislation. This would ensure, for example, that an act is not invalid just because it was performed without authority only because of a reasonable misunderstanding about administrative responsibility following a machinery of government change.

All of the amendments to the Acts Interpretation Act made by Schedule 2 to the Bill will automatically apply to the interpretation of legislative instruments and notifiable instruments (see section 13 of the Legislation Act) and other instruments (see section 46 of the Acts Interpretation Act). They will apply to these instruments in the same way as they are expressed to apply to Acts.

PART 1 - ACTS INTERPRETATION ACT 1901

Item 1 - Section 1A

Item 1 revises the simplified outline for the Acts Interpretation Act to reflect the amendments in Schedule 2 to the Bill.

Item 2 - Section 2B

Item 2 amends section 2B of the Acts Interpretation Act which provides a list of definitions that apply across all Commonwealth legislation, to insert a definition of 'Administrative Arrangements Order'. This term is used across the Commonwealth to refer to a type of instrument made by the Governor-General that sets out the matters dealt with by Departments of State of the Commonwealth, and legislation administered by Ministers for those Departments. It is appropriate that such a commonly known term be included in the Acts Interpretation Act to be applied generally across all Commonwealth legislation to enable the term to be used consistently and with greater clarity.

The term includes an instrument that amends a primary Administrative Arrangements Order or revokes and substitutes a primary Administrative Arrangements Order.

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

Item 3 repeals sections 19, 19A, 19B, 19BA, 19BAA, 19BB, 19BC, 19BD, 19C and 20 of Part 5 of the Acts Interpretation Act and inserts new sections 19, 19A, 19B, 19C, 19D and 20. Provisions in Part 5 set out rules for general interpretation across Commonwealth legislation.

Existing sections 19 and 19A will be replaced by new section 19.

Existing section 19 provides that it is possible for a Minister to authorise another Minister (whether in the same portfolio or not) to perform or exercise statutory functions or powers conferred on the authorising Minister by legislation which they do not administer.

Existing section 19A provides rules for interpreting references to Ministers and Departments in legislation. The current approach to drafting Commonwealth laws is to refer in general terms to Ministers, Departments and Secretaries without mentioning the particular current title of a Minister or the current name of a portfolio, in terms such as "the Minister responsible for administering this Act [or the XYZ Act]". The particular Minister (or Department or Secretary etc.) referred to at any particular time can then be determined by using the rules in existing section 19A, in combination with the Administrative Arrangements Order and the Ministry List. The Ministry List is a list of Ministers and their portfolios. It is not part of the Administrative Arrangements Order.

However, the Commonwealth statute book still retains a significant number of references to specific Ministers, Departments and Secretaries, and to specifically named agencies and offices. These references often become out-of-date following machinery of government changes.

The rules in existing section 19A apply so that both a general reference to 'the Minister' and a reference to a particular Minister (including where there is no longer such a Minister) means the Minister administering the provision under the Administrative Arrangements Order, or any one of the Ministers administering the provision if there is more than one (subsection 19A(1)). If different Ministers administer the provision in respect of different matters, the reference is to the Minister or any one of the Ministers who administer the provision in respect of the relevant matter.

Similarly, where legislation refers to 'the Department' or a particular Department (including a Department that no longer exists), the reference to the Department is taken to be a reference to the administering Department (existing subsection 19A(3)).

New section 19 - References to Ministers in Acts

New section 19 provides rules for interpreting references to a Minister throughout Commonwealth legislation. This provision replaces and expands existing subsections 19A(1) and (2) of the Acts Interpretation Act to provide greater application of rules for interpreting references to Ministers.

If a provision of an Act refers to a Minister, the table in new subsection 19(1) applies so as to determine which Minister the provision refers to in relation to a particular matter on a particular day.

Item 1 of the table:

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to 'the Minister' in the Agricultural and Veterinary Chemicals Act 1994 would be read as the Minister for Agriculture based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Item 2 of the table:

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the 'Minister responsible for the Agricultural and Veterinary Chemicals Act 1994' would be read as the Minister for Agriculture based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Item 3 of the table:

The type of references in paragraph (a) would also be determined by reference to the Administrative Arrangements Order. For example, if the Industry Research and Development Act 1986 included a reference to the Minister for Industry, Science and Research at the time the legislation commenced, and that Minister administered the Act at that time, the reference would be read as the Minister for Industry based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

The type of reference in paragraph (b) would be determined by reference to the Administrative Arrangements Order or a substituted reference order under section 19B. For example, if at the time the Industry Research and Development Act commenced, it included a reference to the Minister for Agriculture and Veterinary Science, and that Minister did not administer the Act at that time, and that title no longer exists, the reference would need to be determined by a substituted reference order.

The type of reference in paragraph (c) would be determined by reference to the Administrative Arrangements Order in conjunction with the Ministry List. For example, if a reference is determined to mean the Minister for Health, the reference can be read as the Minister for Sport or the Assistant Minister for Health. These other Ministers also have administrative responsibility for the matters for which the Minister for Health has responsibility, based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Item 4 of the table:

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the 'Minister responsible for the environment' would be taken to be the Minister for the Environment. The Department of the Environment deals with matters including 'environment protection and conservation of biodiversity', 'environmental information and research', 'urban environment' as well as other matters relating to environmental issues. The Minister for the Environment administers legislation allocated to that Department based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Subsection 19(2) enables both earlier and the current Administrative Arrangements Order and substituted reference orders to be used to work out which Minister is indicated by the rules in the table in subsection 19(1).

Importantly, this provision would also implicitly allow reference to other instruments, such as the Ministry List (both earlier and current Lists), which are relevant to determining the correct Minister.

Earlier instruments that are no longer in force may be needed to help track the transfer of administrative responsibility between Ministers over the period of time since the reference was inserted into the particular Act.

Portfolios may have more than one Minister responsible for a Department or for a particular matter that falls within the responsibility of a Department. A senior Minister may be responsible for a Department along with one or more junior Ministers. In these circumstances, any one of the responsible Ministers is able to exercise powers or functions allocated to the particular portfolio.

Subsection 19(3) removes doubt that if, because of this section, a provision requires anything to be done by or in relation to any one of two or more Ministers, the provision does not require it to be done in a particular case by or in relation to more than one of those Ministers.

Subsection 19(4) reproduces the effect of existing section 19 of the Acts Interpretation Act. It means that a Minister can authorise another Minister (whether in the same portfolio or not) to perform or exercise functions or powers conferred on them by legislation.

New section 19A - References to Departments in Acts

New section 19A provides rules for interpreting references to a Department throughout Commonwealth legislation. This provision replaces and expands existing subsection 19A(3) of the Acts Interpretation Act to provide greater application of rules for interpreting references to Departments.

If a provision of an Act refers to a Department, the table in new subsection 19A(1) applies so as to determine which Department the provision refers to in relation to a particular matter on a particular day.

Item 1 of the table:

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to 'the Department' in the Agricultural and Veterinary Chemicals Act 1994 would be read as the Department of Agriculture. This is because the Minister for Agriculture administers the Agricultural and Veterinary Chemicals Act 1994 based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013, and has responsibility for the Department of Agriculture.

Item 2 of the table:

The type of references in paragraph (a) would also be determined by reference to the Administrative Arrangements Order. For example, if at the time the Industry Research and Development Act 1986 commenced, it included a reference to the Department of Industry, Science and Research and that Department was administered by the Minister who administered that legislation at that time (the Minister for Industry and Science), the reference would be read as the Department of Industry based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

The type of reference in paragraph (b) would be determined by reference to the Administrative Arrangements Order or a substituted reference order under section 19B. For example, if at the time the Industry Research and Development Act 1986 commenced, it included a reference to the Department of Agriculture and Veterinary Science, and that Department was administered by the Minister for Agriculture and Veterinary Affairs who did not administer that particular legislation, and that title no longer exists, the reference would need to be determined by a substituted reference order. Some references will not be able to be identified as clearly, and substituted reference orders may need to be read alongside the legislation to determine the correct reference.

The type of reference in paragraph (c) would be determined by reference to the Administrative Arrangements Order. For example, if an Act relates to a particular matter, 'water policy', and that matter is dealt with by two Departments (the Department of the Environment and the Department of Agriculture), based on the Administrative Arrangements Order, then a reference to the Department of the Environment can be read as the Department of Agriculture.

Item 3 of the table:

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the 'Department responsible for the environment' would be taken to be the Department of the Environment. The Department of the Environment deals with matters including 'environment protection and conservation of biodiversity', 'environmental information and research', 'urban environment' as well as other matters relating to environmental issues based on the Administrative Arrangements Order made on 12 December 2013.

Subsection 19A(2) enables both earlier and the current Administrative Arrangements Order and substituted reference orders to be used to work out which Department is indicated by the rules in the table in subsection 19A(1).

Importantly, this provision would also implicitly allow reference to other relevant instruments such as the Ministry List (both earlier and current Lists)

Earlier instruments that are no longer in force may be needed to help track the transfer of administrative responsibility between Departments over the period of time since the reference was inserted into the particular Act.

An example is provided after the table in subsection 19A(1). Where a provision of an Act refers to "the Secretary of the Department", item 1 would be used to determine that 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 by considering the Administrative Arrangements Order, a substituted reference order made under section 19B, or another instrument.

This example makes clear that the meaning of any reference to a Secretary can be determined using the table in subsection 19A(1).

New section 19B - Machinery of government-substituted reference orders

New section 19B replaces current sections 19B, 19BA, 19BAA, 19BB and 19BC of the Acts Interpretation Act. It allows for substituted reference orders to be made to assist in the interpretation of references to Ministers, Departments, Agencies and Offices. This has broader application than existing provisions in the Acts Interpretation Act which only allow for substituted reference orders to be made to assist in the interpretation of references to Ministers, Departments and Secretaries.

In circumstances where existing section 19A may not have the effect of allowing a legislative reference to a specified Minister or specified Department to be determined by reference to the Administrative Arrangements Order, the Governor-General may make an order under existing sections 19B or 19BA to alter specific references in Commonwealth legislation. Substituted reference orders enable the reference to the Minister or Department in legislation to be read as a reference to the Minister/s or Department/s specified in the order, avoiding the need to amend the legislation.

Existing section 19B provides that an Order can be made to: alter a reference to a particular Minister if there is no longer any such Minister; alter a reference to a particular Department if that Department has been abolished or the name of the Department has been changed; or alter a reference to a particular Secretary of a Department if that office of Secretary has been abolished or the name of that office has been changed.

Existing section 19BA of the Acts Interpretation Act provides an additional power for the Governor-General to alter references in legislation to specific Ministers, Departments or Secretaries where they are inconsistent with changed administrative arrangements. In some cases the name of a Minister, Department or Secretary will stay the same but a specific reference in legislation will nevertheless need to be changed because the administration of that provision has been changed by the Administrative Arrangements Order.

A substituted reference order under existing section 19B or 19BA may be made with retrospective effect.

Existing section 19BAA has the effect that a substituted reference order cannot be made under existing sections 19B and 19BA in circumstances where a Department is abolished and a Department with the same name is established. This is what occurs following the making of a new Administrative Arrangements Order following an election. The intention is to enable continuity in relation to references to Departments where there has been no substantive change. A substituted reference order under existing section 19BA order could still be made to update the reference where there is a change in the matters dealt with by the Department.

Existing section 19BB allows orders made under existing sections 19B and 19BA to be revoked by the Governor-General in whole or in part.

Existing section 19BC requires the Minister to publish a copy of the order made by the Governor-General under existing sections 19B, 19BA or 19BB. This requirement for gazettal was overtaken by the operation of subsection 56(1) of the Legislative Instruments Act, so that publication on the Federal Register of Legislative Instruments would satisfy the requirement for gazettal. This reflected the move away from publishing Commonwealth notices in the Gazette to publishing on the Federal Register of Legislative Instruments which is intended to be the central repository of Commonwealth legislative instruments.

New section 19B allows for substituted reference orders to be made to alter references to specific Ministers, Departments, Agencies and Offices in Commonwealth legislation.

Following the 2013 election, significant machinery of government changes were made, including the abolition of a government agency (AusAid). The functions of AusAid were transferred to the Department of Foreign Affairs and Trade. Numerous pieces of legislation included references to AusAid and the Director-General of AusAid, including references that provided for the exercise of particular powers or functions by that agency or position.

Due to the scope of existing sections 19B and 19BA, substituted reference orders were not able to be made to address these out-of-date references to ensure powers and functions could continue to be exercised immediately following the administrative changes.

In this instance, legislative amendments were required to ensure that the affected powers and functions could be exercised validly.

By contrast, a substituted reference order would have been able to be made by the Governor-General far more quickly (and with retrospective effect if necessary), to facilitate the continued exercise of powers and functions from the time of the administrative changes.

New subsection 19B(1) provides that substituted reference orders can be made in relation to references to an authority, as defined in subsection (7), and 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.

Paragraph (iv) has been drafted broadly to provide flexibility to enable substituted reference orders to be made in circumstances that are not necessarily envisaged at this time. This enables a substitution of one type of authority to another type of authority: for example, references to the Department of Foreign Affairs and Trade could be substituted for existing references to AusAid. This would only be done to reflect the changes to administrative arrangements, for example, following a new administrative Arrangements Order. The purpose of the substituted reference orders is not to transfer powers or functions between authorities, but to enable legislation to be read correctly based on the changed administrative arrangements.

New subsection 19B(2) provides the power for the Governor-General to make a substituted reference order with the effect that a reference to an authority or authorities is to be read in place of a reference to an authority in a provision. A substituted reference order may be made to apply across the statute book (paragraph (a)) or to a particular provision or piece of legislation as specified in the order (paragraph (b)).

In some instances, the changes in administrative arrangements may require a particular reference to be substituted by another reference. For example, references to the Minister for Finance and Deregulation may be substituted for the Minister for Finance in every reference across the statute book when the administrative change is a change in name only, not a change in any responsibility.

In other instances, the changes in administrative arrangements may require a particular reference across the statute book to be substituted for a different reference in different legislation. For example, references to the Minister for Health and Ageing may require a particular substitution for references relating to health matters, for example, to be read as the Minister for Health, and a different substitution for references relating to ageing matters, for example, to be read as the Minister for Social Services.

The note to new subsection 19B(2) makes clear that subsection 33(3) of the Acts Interpretation Act has application so that a substituted reference order may be amended or revoked in the same way it is made (by an order made by the Governor-General). This enables substitutions to be amended or revoked in the future to ensure they are kept accurate and reflect changes to administrative arrangements over time.

New subsection 19B(3) provides that substituted reference orders may be made to have retrospective effect. Substituted reference orders may not be able to be made immediately following machinery of government changes, but it may be important that they are made to have effect from that time to facilitate the continued exercise of powers and functions by authorities. Otherwise there may be a gap from the time of the administrative changes to the time the substituted reference order ordinarily commences (usually the day after registration on the Federal Register of Legislation - formerly the Federal Register of Legislative Instruments), and this may result in doubt about the valid exercise of powers and functions by an authority during that time.

A substituted reference order can operate on references to authorities that are already the subject of existing substituted reference orders.

New subsection 19B(5) provides that a substituted reference order is a legislative instrument. Substituted reference orders are not subject to section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act. This reflects that these types of instruments are subject to existing exemptions from disallowance and sunsetting requirements in the Regulations. It is appropriate that substituted reference orders not be subject to disallowance on the basis these orders are technical and administrative instruments made by the Executive. It would not be appropriate for the Parliament to interfere with these instruments, similar to the making of Administrative Arrangements Orders. Substituted reference orders are likely to be amended or revoked from time to time to reflect changes in administrative arrangements. However, substituted reference orders may have application for a long period of time. It would not be appropriate for substituted reference orders to sunset, as this may lead to inadvertent gaps in authority for the legitimate exercise of powers and functions under particular legislation.

New subsection 19B(6) is intended to have the same effect as existing section 19BAA of the Acts Interpretation Act. A substituted reference order under new section 19B cannot be made on the basis that an authority has been abolished (or its name changed) but could be made on the basis there is a change in the matters dealt with by the authority or if it is otherwise appropriate. Where an authority is abolished but is immediately re-established with the same name and of the same type, it is effectively taken to have never have been abolished.

New subsection 19B(7) defines 'authority' for the purposes of making a substituted reference order under this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an Office (including an APS employee's office and any other appointment or position), or the holder of an office.

The note to this section clarifies that offices are offices in and for the Commonwealth as per section 21 of the Acts Interpretation Act, and includes the office of the Secretary of a Department of State.

The definition provides broader coverage as to the type of substituted reference orders that are able to be made under this new provision. As outlined above, new section 19B enables substituted reference orders to be made for references to Ministers, Departments, Agencies and Offices, rather than being limited to Ministers, Departments and Secretaries (as per existing sections 19B and 19BA).

New section 19C - Machinery of government-references to authorities in Commonwealth agreement

New section 19C replaces existing section 19C of the Acts Interpretation Act and is intended to provide certainty for interpreting references to various authorities in agreements following a machinery of government change.

Existing section 19C is intended to provide certainty for interpreting references in agreements following a machinery of government change. References to a former Minister or Department are to be read as the new Minister or Department with responsibility for the administration of matters to which the agreement relates. This would be determined by reference to the Administrative Arrangements Order. References to an officer or body of persons are to be read as the officer or body who is temporarily exercising the powers or performing the functions, or the officer or body specified by a substituted reference order made by the Minister(s) who is administering the relevant portfolio.

New subsection 19C(1) will provide more simply for the continued effectiveness of references to a range of authorities in Commonwealth agreements (Ministers, Departments, Agencies, other offices or office-holders) despite machinery of government changes which may, for example, result in an authority referenced in an agreement being abolished or renamed. New subsections 19C(2) and (3) indicate how a particular reference in an agreement is to be read following an administrative change. It provides that a reference to a Minister, Department or other authority is to be read as the Minister, Department or other authority as determined by reference to an instrument in subsection (3), that is, to an Administrative Arrangements Order or a substituted reference order made under section 19B.

A reference to an authority (other than a Minister or Department) can also be determined by an instrument made under subsection (4). New subsection (4) provides that a Minister administering the Department that deals with the relevant matter may, by notifiable instrument, make a determination for the purposes of determining the new authority for the purposes of an agreement. A determination may be made under subsection (4) to provide legal certainty for particular agreements. This provision is similar in effect to the current subsection 19C(c) which allows a Minister to specify an officer or body, for the purposes of reading a reference to an officer or body in an agreement.

New Subsection (5) removes doubt that if, because of this section, a provision of an agreement requires anything to be done by or in relation to any one of two or more Ministers, the provision does not require it to be done in a particular case by or in relation to more than one of those Ministers.

Subsection (7) defines 'authority' for the purposes of this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an office (including an APS employee's office and any other appointment or position), or the holder of an office. This covers a similar range of entities to those covered by existing section 19C, which covers Ministers, Departments, officers and bodies of persons.

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

New section 19D is intended to replace existing section 19BD of the Acts Interpretation Act which provides a savings provision for acts done by Ministers without authority, and provide greater protection for the valid exercise of powers and functions following machinery of government changes.

Existing section 19BD is intended to cover situations where a function, duty or power is conferred on one Minister by an Act, and a second Minister purports to perform the function or duty or exercise the power. This might arise where there is a misunderstanding about the allocation of responsibilities under the Administrative Arrangements Order, or in substituted reference orders made under existing sections 19B and 19BA.

The provision does not validate acts done by the Minister purporting to exercise or perform a power, function or duty of another Minister for all purposes (that is, the Act is not invalid merely for that reason, but the act could be invalid for a range of other reasons). Further, it does not authorise or allow Ministers to exercise or perform powers, functions or duties that do not fall within their portfolio responsibilities.

New section 19D operates more broadly than existing section 19BD by saving the validity of acts done by authorities (rather than just Ministers) and in relation to the exercise of a power, function or duty provided under any form of Commonwealth law or agreement (rather than only those imposed by an Act). The savings provision will apply where there is a reasonable but mistaken belief about the conferral of powers, functions or duties under machinery of government changes.

New subsection (1) provides that, in the event that an authority purports to exercise or perform a power, function or duty of another authority, the action is not invalid merely because the authority does not have responsibility following a machinery of government change. It is foreseeable that, following machinery of government changes, there is a misunderstanding about the allocation of responsibilities. In this event, it is not considered appropriate that a mere failure to comply with internal government administrative arrangements should result in the invalidity of an action taken by an authority.

New subsection (2) provides that this provision only applies if the authority acted on a reasonable, but mistaken, belief about the occurrence, timing or nature of the machinery of government change. The provision will not apply in other circumstances, for example, if a Minister or official knowingly exercises a power without authority.

A machinery of government change for the purposes of this section is constituted under subsection (3) by the abolition of an authority, a change of name or the title of an authority, a change in the matters dealt with by the authority (as reflected by an Administrative Arrangements Order) or any other circumstance in which the authority is no longer legally responsible for the power or function purportedly exercised or performed.

New subsection (4) provides that this savings provision applies where the authority for the exercise of a power, function or duty is provided in an Act, legislative instrument, a Commonwealth agreement, or any other authorisation under a Commonwealth Law.

New subsection (5) defines 'authority' for the purposes of this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an office (including an APS employee's office and any other appointment or position), or the holder of an office.

The note clarifies that offices are offices in and for the Commonwealth as per section 21 of the Acts Interpretation Act, and includes the office of the Secretary of a Department of State.

This provision does not validate acts done by the authority purporting to exercise or perform a power, function or duty of another authority for all purposes (that is, the act could be invalid for a range of other reasons). Further, it does not authorise or allow an authority to exercise or perform a power, function or duty that does not fall within their area of responsibility. For example, it does not overcome the need for an Administrative Arrangements Order to set out the internal government arrangements, which would then be picked up by new sections 19 and 19A of the Acts Interpretation Act. These internal government administrative arrangements will still need to be put into place, and will operate to allocate responsibilities. The provision is intended to operate consistently with the convention of collective responsibility, which is part of the Cabinet system of Government

New section 20 - References to holders of appointment, offices and positions in Acts and Commonwealth Agreements

Existing section 20 provides that when a provision of an Act refers in general terms to any person holding or occupying an office or position, the reference is taken to include all persons who hold or occupy the office or perform the duties of the office.

New section 20 amends existing section 20 of the Acts Interpretation Act to extend its scope to cover references to officers in Commonwealth agreements, to ensure that the reference to an office or position also includes a reference to an appointment, and generally to clarify the expression of the provision. This has broader application than existing section 20 which is limited to references in Acts, and references to a particular office or position.

PART 2 - APPLICATION AND TRANSITIONAL

Item 4 - Application of amendments - Schedule 2

This item provides that the amendments to the Acts Interpretation Act in Part 1 of Schedule 2, apply in relation to an Act or instrument made before, on, or after the commencement of this Schedule, subject to this Part. This ensures the wide application of these amendments across Commonwealth laws.

Item 5 - Transitional - substituted reference orders

This item ensures that substituted reference orders made under existing sections 19B and 19BA of the Acts Interpretation Act that are in force immediately before the commencement of the amendments in this Schedule, continue to be in force after the amendments in this Schedule commence. The substituted reference orders will be taken to have been made under new section 19B of the Acts Interpretation Act. This ensures that a new substituted reference order does not need to be made in order that substitutions to particular references across Commonwealth laws continue to have effect.

Item 6 - Application of amendments and saving - references to authorities in Commonwealth Agreements.

This item provides an application provision in relation to the repeal of section 19C of the Acts Interpretation Act and its substitution by new section 19C by this Schedule. New section 19C deals with references to authorities in Commonwealth agreements.

Subitem (1) provides that new section 19C will have application to agreements entered into by or on behalf of the Commonwealth on or after the commencement of this Schedule.

Subitem (2) provides that despite the repeal of section 19C by this Act, that section continues to apply in relation to an agreement entered into by or on behalf of the Commonwealth before the commencement of this Schedule. It also provides that an order under subparagraph 19C(1)(c)(ii) of the Acts Interpretation Act that was in force in relation to an agreement, continues to apply to that agreement.

Item 7 - Application - new section 19D

Item 7 provides that new section 19D will apply to the purported exercise of powers, functions or duties which occurs on or after the commencement of this Schedule. Where this is a purported exercise of powers, functions or duties under an agreement, the savings provision will apply if the agreement was entered on or after the commencement of this Schedule.