Electronic Execution Under the Corporations Act – Update
Electronic execution and split execution of documents is again permitted after The Treasury Laws Amendment (2021 Measures No.1) Bill 2021 (the Bill) passed both houses on 10 August 2021.
The Bill provides that electronic execution and split execution of documents under section 127 of the Corporations Act 2001 (Cth) (Corporations Act) is again permitted. Royal assent was provided on 13 August 2021 and therefore the amendments contained in the Bill came into effect on 14 August 2021.
Documents that can be executed electronically
Section 127 sets out the ways a company can execute documents (including deeds). The definition of “document” for the purpose of the Corporations Act is broad and includes, amongst other things, “anything on which there is writing”. We note the types of documents which can now be executed electronically include:
- deeds (such as deeds of assignment, deeds of settlement, incentive deeds),
- contracts (such as building contracts and contracts for land and property purchases),
- agreements (such a loan agreements, licence agreements and non-disclosure agreements),
- leases and other land registry forms (such as variations of lease, surrenders of lease).
However whether electronic execution is acceptable for registration forms for registration purposes must be determined on a case by case basis having regard to the requirements of the land registry office of the relevant state or territory.
Key Provisions of the Bill
The Bill was originally introduced to Parliament in February 2021 and the intention was for the Bill to be passed prior to 21 March 2021 (being the expiry date of the then current temporary rules regarding electronic execution and split execution of documents). However, the Bill was not passed and we have been unable to rely on the temporary rules since 22 March 2021. This has caused uncertainty with regard to the validity of electronic execution by companies for the last (almost) 5 months.
We have summarised the key provisions of the Bill below:
- The amendments are temporary and automatically expire on 31 March 2022 (see section 1267F).
- In order for electronic execution under section 127 (1) of the Corporations Act to be effective it must:
- Identify the signatory and confirm the signatories intention to sign the document;
- Be on a copy or counterpart of the document that includes the entire content (i.e. all annexures and pages included, the execution page must not be separated from the document); and
- Be reliable and appropriate for the purposes taking into account all circumstances.
- Companies must retain copies of the executed documents (all pages, not just the execution page/s), including where split execution occurs in which case each executed document must be retained.
- Documents can be signed electronically by copying and pasting a signature into the document or by using electronic execution tools such as DocuSign or Adobe Sign.
- Remote witnessing of the fixing of a company seal for the purpose of execution under section 127(2) of the Corporations Act is permitted if:
- The witness by electronic means observes the fixing of the common seal;
- The witness signs the document; and
- The document contains a statement that the witness observed the fixing of the seal by electronic means.