Several federal and state/territory laws, including the Corporations Amendment (Meetings and Documents) Act 2022 (Cth), have recently been enacted and have changed the state of play for electronic signing and remote witnessing of documents.
Consequently, we have updated our Guide to Electronic Execution of Documents, to reflect the current state of play for electronic signing and remote witnessing of documents of deeds and agreements across Australia. Key recent changes are also discussed below.
Electronic signing by companies now permanent
Since the beginning of the COVID-19 pandemic, the Federal Government has used temporary instruments to allow companies to sign documents electronically. However, through the Corporations Amendment (Meetings and Documents) Act 2022 (Cth) (Amendment Act) enacted in February 2022, the Corporations Act 2001 (Cth) (Corporations Act) has been amended to permanently allow companies and their agents to sign documents electronically. The permanent changes expand upon the previous temporary regimes in a number of ways, including:
- Technology neutral signing: the Amendment Act introduces a new concept of “technology neutral signing” that makes clear companies can sign documents (including deeds) by hand or using electronic means, so long as the method used:
- identifies the person and indicates the person’s intention in respect of the information recorded in the document; and
- is as reliable as appropriate for the purpose for which the information was recorded or is provide in fact to have fulfilled the functions described above, by itself or together with further evidence.
- Entire contents requirement removed: Previously under the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), any copy of a document signed electronically was required to have the entire contents of the document. Under the new changes, the copy signed does not need to include the entire contents of the document, however, care must be taken to ensure that there is clear and unambiguous evidence of an intention to be bound by the entire contents of the document.
- Split execution: the Amendment Act includes provisions that expressly permit split execution (i.e. two officers signing on behalf of a company using different methods).
- Electronic signing by an agent: section 126 of the Corporations Act has been amended so that an agent (being an individual acting with a company’s express or implied authority and on behalf of the company) may electronically sign on behalf of a company. Additionally, section 126 has been amended to specify that the agent signing on behalf a company is not required to be appointed by a deed. However, relevant state/territory laws should be considered as section 126 does not affect the operation of other laws that require a particular procedure to be complied, other than to the extent that the law is inconsistent with section 126.
Remote witnessing now permanent in NSW
In November 2021, the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) was passed and assented, to make permanent the temporary provisions in the Electronic Transactions Act 2000 (NSW) permitting remote witnessing of certain documents, including deeds and agreements.
Remote witnessing in QLD to be made permanent
The temporary provisions set out in the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 (QLD) permit remote witnessing of documents, subject to the requirements set out in the regulation being complied with. These provisions are to expire 30 April 2022.
The QLD Government has passed the Justice and Other Legislation Amendment Act 2021 (QLD) to make remote witnessing permanent, and those provisions will commence on a day to be fixed by proclamation.
What do these changes mean for electronic signing and remote witnessing?
To see how these legislative changes impact the signing of documents by individuals, companies and partnerships in your state or territory, please see our Guide to Electronic Execution of Documents.
Please contact us if you require any advice regarding electronic signing or remote witnessing.