Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)Chapter 5 Modification of information and other requirements
Outline of chapter
5.1 Schedule 5 to this Bill provides a temporary mechanism for responsible Ministers to change arrangements for meeting information and documentary requirements under Commonwealth legislation in response to the challenges posed by the Coronavirus.
Context of amendments
5.2 The social distancing measures and the restrictions on movement and gatherings introduced in response to the Coronavirus are expected to cause difficulties with meeting information and documentary requirements under Commonwealth legislation.
5.3 In recognition of the importance of continued business transactions and government service delivery during the Coronavirus, this measure provides flexibility to temporarily adjust legal obligations and provide certainty about the appropriate ways to meet information and documentary requirements.
Summary of new law
5.4 Schedule 5 to this Bill allows the responsible Minister for an Act or legislative instrument that requires or permits certain matters (including the giving of information and the signature, production and witnessing of documents) to temporarily alter or adjust these requirements or permissions in response to circumstances relating to the Coronavirus.
5.5 A determination under this mechanism may apply retrospectively. However, a determination will be beneficial to individuals and business by retrospectively validating approaches to providing information or meeting documentary and witnessing requirements that may otherwise have been invalid.
5.6 This mechanism is necessary to respond flexibly to the unprecedented challenges of the Coronavirus, particularly the challenges posed by social distancing measures.
5.7 The mechanism is temporary and will cease to have effect after 31 December 2020.
Comparison of key features of new law and current law
| New law | Current law |
| A Minister responsible for an Act or legislative instrument that requires or permits certain matters relating to information and documentation may determine that different arrangements apply in response to the Coronavirus. | No equivalent. |
Detailed explanation of new law
5.8 Item 1 applies in relation to a provision of an Act or legislative instrument (known as an affected provision) that requires or permits any of the following matters (known as relevant matters):
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- the giving of information in writing;
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- the signature of a person;
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- the production of a document by a person;
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- the recording of information;
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- the retention of documents or information;
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- the witnessing of signatures;
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- the certification of matters by witnesses;
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- the verification of the identity of witnesses; and
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- the attestation of documents.
[Schedule 5, item 1]
5.9 The responsible Minister for an affected provision may determine by legislative instrument that, for a specified time period:
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- the affected provision is varied or does not apply; or
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- another provision specified in the determination applies,.
[Schedule 5, subitem 1(2)]
5.10 A determination must only alter the application of the affected provision to the extent it relates to any of the relevant matters outlined above. [Schedule 5, subitem 1(2)]
5.11 The time period specified in a determination can be a period that starts before Schedule 5 to this Bill commences. Applying the determination retrospectively will be beneficial to individuals and business as it will retrospectively validate approaches to providing information or meeting documentary and witnessing requirements that may otherwise have been invalid. [Schedule 5, subitem 1(3)]
5.12 The responsible Minister must not make a determination unless they are satisfied that the determination is in response to circumstances relating to the Coronavirus. [Schedule 5, subitem 1(4)]
5.13 A responsible Minister is defined as:
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- any Minister who administers the Act which is being varied; or
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- if the affected provision is a provision of a legislative instrument - any Minister who administers the enabling legislation under which a legislative instrument is made.
[Schedule 5, subitem 1(5)]
5.14 A determination made by a responsible Minister has effect accordingly and will not operate after 31 December 2020. Likewise, the instrument-making power is intended to be temporary. The provisions inserted by Schedule 5 to this Bill will be repealed at the end of 31 December 2020. [Schedule 5, subitems 1(6), (7) and (8)]
Application and transitional provisions
5.15 Schedule 5 to this Bill will commence on the day after the day on which this Bill receives Royal Assent. Determinations made under the powers provided for by Schedule 5 to this Bill can apply retrospectively.
5.16 The provisions inserted by Schedule 5 to this Bill will be repealed at the end of 31 December 2020. Any determination made under the new mechanism will also cease to operate after 31 December 2020.