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Update on Electronic Signing

By Haley Craig

In the face of the pandemic the states, territories and Commonwealth enacted different measures throughout 2020 in relation to the electronic execution of documents. With most of these temporary measures having already ended or nearing expiry, it may be best to get back to pen on paper signatures, where possible.

Companies

The Corporations Act 2001 (Cth) modifications that allowed companies to execute documents (and also hold meetings and provide notices) via technology from 6 May 2020, is no longer in force. The Treasury Laws Amendment (2021 Measures No. 1) Bill which was set to extend from 21 March 2021 to 15 September 2021, has been passed by the House of Representatives, but has not yet been passed by the Senate. This means that the temporary relief allowing companies to use technology to meet regulatory requirements to hold meetings, such as annual general meetings, distribute meeting related materials and validly execute documents has now expired.

ASIC provided this update on some of these measures; unfortunately saying “ASIC will not be providing a no action position in relation to electronic signatures.”

Here is state-based round up of the temporary measures:

South Australia

Legislation allowing for meetings to be held remotely (in limited circumstances) ceased on 6 February 2021 (having been active from 9 April 2020).

New South Wales

Regulations allowing for remote witnessing of documents ceased on 26 March 2021 (having been active since 22 April 2020).

The Electronic Transaction Act incorporated provisions for the remote witnessing of documents; these amendments are due to be repealed on 1 January 2022.

Victoria

Victoria’s regulations allowing electronic execution and remote witnessing will expire on 26 April 2021 (having been in place since 12 May 2020)

Queensland

Queensland’s regulations allowing electronic execution and witnessing of documents (active since 15 May 2020) will expire on 30 April 2021.

Western Australia

COVID emergency declaration provisions allowing for remote witnessing (and additional persons able to witness affidavits) in place since September 2020, will remain active until 31 December 2021.