The keyboard is mightier than the sword | Corporations Act amendment permits e-signing of documents

In a leap towards technological modernisation, the Corporations Amendment (Meeting and Documents) Bill 2021 ('Bill') received Royal Assent on 22 February 2022. The permanent came into effect on 1 April 2022.Developed from provisions within the Corporations (Coronavirus Economic Response) Determination (No3) 2020 and the Treasury Laws Amendment (2021 Measures No1) Act, this Bill enables:

• the electronic execution of company documents, including deeds;
• companies, registered schemes and disclosing entities to use digital signatures and provide meeting-related documents electronically; and
• companies and registered schemes to use technology to facilitate holding meetings.

Execution of Documents: Pursuant to ss 126 and 127 of the Corporations Act 2001 (Cth) ('Act'), documents (including deeds) may now be signed in either a physical or electronic form. These provisions extend to proprietary companies where there is a sole director but no company secretary (removing the need for their appointment prior to signing documents).Companies may continue to rely of s 129 of the Act when electronically executing documents, however for an electronic signature to be held as valid, the method of execution must

• identify the person signing the document;
• indicate the person's intention in respect of information recorded; and
• be reliable for the purpose.

Hybrid Signing: Documents may additionally be executed through 'hybrid signing', with one director signing a physical form of the document, together with another director signing an electronic form.

‍Delivery of Documents: Documents may also be delivered either physically or electronically, however must be accessible to the recipient (i.e. created in an accessible format, such as a PDF, sent via email).

‍Lodgement of Documents: Documents lodged with ASIC or the Registrar may additionally be electronically signed in accordance with this Bill. No relevant authority may refuse to receive or register the document on the basis of it not being signed if the document is required or permitted to be digitally signed under the Act.

‍Agents: Acting on behalf of companies, agents will be able to make, ratify or discharge contracts and documents (including deeds) electronically. Agents will not need to be appointed by deed in order to do this. If however, an Agent is appointed, they may additionally rely on the assumption as outlined with s 129(3) of the Act.

‍Next Steps for Company Directors: Whilst the amendments to the Act do not mandate the use of any particular form of technology or e-signature service, Directors must implement certain measures before exercising electronic execution and signing of documents. These measures include:

• amending any existing company constitutions to allow for electronic signing;
• implementation of provisions in existing precedent documents which indicate an intention to allow electronic signatures; and
• amending any execution blocks within documents to provide necessary digital confirmations for electronic signing.

If you require assistance in relation to any of the information provided above, Pragma's lawyers can provide advice to you and your business to modernise your practice and minimise your future risk. Contact us today by clicking here or call us on (08) 6188 3340.