Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Josh Frydenberg MP)Chapter 4 - Modification power
Outline of chapter
4.1 Schedule 4 to the Bill amends Schedule 5 to the Coronavirus (Measures No. 2) Act to reintroduce a temporary mechanism for responsible Ministers to change arrangements for meeting information and documentary requirements under Commonwealth legislation, including requirements to give information and produce, witness and sign documents, in response to the challenges posed by COVID-19.
Context of amendments
4.2 This mechanism was previously included in Schedule 5 to the Coronavirus (Measures No. 2) Act as a temporary measure terminating at the end of 31 December 2020.
4.3 Schedule 5 to the Coronavirus (Measures No. 2) Act was a general instrument-making power that enabled responsible Ministers to make a determination temporarily adjusting arrangements for meeting information and documentary requirements under Commonwealth legislation in response to COVID-19 restrictions. Schedule 5 and any determinations made under Schedule 5 were repealed on 31 December 2020.
4.4 Schedule 4 to the Bill seeks to reinstate the operation of Schedule 5 to the Coronavirus (Measures No. 2) Act to 31 December 2022.
4.5 In light of the ongoing nature of COVID-19 both in Australia and globally, including the possibility of restrictions on movement or gatherings being suddenly imposed, the power to amend arrangements for meeting information and documentary requirements remains necessary.
Summary of new law
4.6 Schedule 4 to the Bill amends Schedule 5 to the Coronavirus (Measures No. 2) Act to allow 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 COVID-19.
4.7 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.
4.8 This mechanism is necessary to respond flexibly to the unprecedented challenges of COVID-19, particularly the challenges posed by social distancing measures.
4.9 The mechanism is temporary and will cease to have effect at the end of 31 December 2022.
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 COVID-19. | No equivalent. |
Detailed explanation of new law
4.10 Item 1 of Schedule 4 to the Bill introduces the new Schedule 5 to the Coronavirus (Measures No. 2) Act.
4.11 This item 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 4, item 1, section 1(1) of Schedule 5]
4.12 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 4, section 1(2) of Schedule 5]
4.13 The time period specified in a determination can be a period that starts before Schedule 4 to the 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, section 1(3) of Schedule 5]
4.14 The responsible Minister must not make a determination unless they are satisfied that the determination is in response to circumstances relating to COVID-19.
[Schedule 4, section 1(4) of Schedule 5]
4.15 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 4, section 1(5) of Schedule 5]
4.16 A determination made by a responsible Minister has effect accordingly and will not operate after 31 December 2022. Likewise, the instrument-making power is intended to be temporary. The provisions inserted by Schedule 4 to the Bill will be repealed at the end of 31 December 2022. [Schedule 5, items 1(6), (7) and (8)]
Consequential amendments
4.17 Nil.
Application and transitional provisions
4.18 Schedule 4 to the Bill will commence on the day after the Bill receives Royal Assent. Determinations made under the powers provided for by Schedule 5 to the Coronavirus (Measures No. 2) Act, amended by Schedule 4 to the Bill, can apply retrospectively.
4.19 The provisions inserted by Schedule 4 to the Bill will be repealed at the end of 31 December 2022. Any determination made under the new mechanism will also cease to operate at the end of 31 December 2022.