Fact sheet 38

Execution solutions for remote working arrangements

This fact sheet focuses on practical solutions for Commonwealth entities which need to sign and accept commercial documents (including contracts and deeds) during an isolation, semi-isolation, socially distanced or remote working scenario. These circumstances pose a number of challenges including diminished printing and scanning capability and the availability of witnesses for execution. It should be read in conjunction with Fact Sheet 37 (Execution clauses).

Note that this fact sheet is based on the law as at the date of publication. Circumstances are changing and the Commonwealth, states and territories have all passed legislation and made regulations and declarations to respond to the evolving situation. The Appendix to this fact sheet summarises the current relevant laws and requirements.

This fact sheet does not focus on non-commercial documents such as wills, affidavits or court documents. These documents are referenced only where a change in law which affects a commercial document also extends to them.

Summary of solutions

The below table identifies issues and solutions to facilitate the execution of a range of documents in these circumstances (including under any temporary changes). Additional details are discussed later in this fact sheet.

Execution solutions for remote working arrangements - Summary of solutions
Document type Is electronic execution permitted? Considerations Solutions
Correspondence Yes Consider value and risk associated with document. Electronic or digital signature.
Memorandum of Understandings (MoUs), work orders, and similar Yes Consider value and risk associated
with document.
Electronic or digital signature.
Contracts Yes Usual formalities of a contract must
be satisfied.
Electronic or digital signature.
Land documents requiring registration Only where permitted through an Electronic Lodgement Network (ELN). Ensure that a client authorisation
form has been signed, which will also
require a verification of identity to be
completed.
Consider particular requirements of
the registry and ELN

Use ELN

If ELN not available, electronically
execute an agreement committing to
sign registrable form of document in
future.

Deeds By individuals – in
New South Wales,
Victoria and
Queensland.
By Corporations Act
2001 companies –
yes.
Particular considerations for companies. No witness required in Victoria or Queensland. (See below in connection with witnessing).
Consider the benefits of deed vs contract.

Where the deed is made in NSW, Victoria or Queensland, sign electronically.

Convert to contract (if contract formalities are met) and sign electronically.
Electronically sign an agreement committing to sign the deed.

Where a deed is required and is not made in NSW, Victoria or Queensland, if possible, print (in counterpart), physically sign in the presence of witness, scan and send (note that this qualifies as physical or ‘wet ink’ signing with electronic delivery).

See below solutions for companies to execute deeds.

Documents which require a witness

Yes, but exercise caution.

The types of documents which may be witnessed electronically or via audio-visual link differs across jurisdictions.

In WA, NSW, Victoria, Queensland, ACT and Tasmania, witnessing of certain documents may occur via audio-visual link and the witness may sign a copy of the document.

Outside NSW, Victoria, Queensland, ACT and Tasmania, the proximity of witness (in time and space) is necessary and same document (not copy) must be signed by the witness.

In WA, NSW, Victoria, Queensland, ACT and Tasmania use audio-visual link to witness signature in accordance with relevant regulations and witness may sign copy of document signed by signatory.

Outside NSW, Victoria, Queensland, the ACT and Tasmania, the witness may be physically proximate ‘at a distance’ and may attest that they have witnessed by signing the same document on the same device, or by using a suitable digital execution platform.

Documents signed by or on behalf of Corporations Act companies Yes

The Corporations Act is exempt from the Electronic Transactions Act 1999.

Consider value and risk associated with document. Different execution methods are available.

The Corporations Act 2001 (Cth) has been modified to permit electronic execution of documents (including deeds) and witnessing the affixing of a company’s common seal by electronic means, provided certain requirements are met.

Execution by a company in compliance with s127 of the Corporations Act may occur where:

  • witnessing of the fixing of the
    common seal by company officers is
    performed electronically;
  • the company officers sign a physical counterpart of the same document;
    or
  • the company offers execute using a suitable form of electronic communication.

A person who has the authority of the company (e.g. a person holding a power of attorney or who is authorised via a board decision) may also execute subject to the nature and terms of that authority.

Practical tips

For a specific document or transaction, certain precautions and steps should be taken. Suitably detailed records should also be kept of the steps taken and factors considered in connection with electronic execution of each document in order to manage operational and legal risk, and also to prove the validity of execution by its delegates. The steps may be built into a process or procedure document and, to the extent relevant taking into account whether documents can be electronically created and signed and whether remote witnessing is permitted in the jurisdiction, should include that:

  • the signatory assesses:
    • the relevant document and the complexity of the document, the value of the agreement and/or the identity of the counterparties to determine whether these increase the likelihood of dispute
    • the risks that electronic signatures potentially pose (including that the document may not be enforceable if improperly executed and that an electronic signature may be affixed without proper authorisation), in order to determine whether it is appropriate to sign the document electronically (or whether a physical ‘wet ink’ signature is preferable).
  • the signatory should electronically affix their signature in the execution block of any document being signed to both identify them and indicate their intention to be bound by the document
  • documents that have been signed electronically are appropriately stored and archived with protections and caveats so that the risk of signatures on the documents being copied and pasted from a ‘signed’ document which is stored in the document management system is reduced
  • where the physical proximity of the witness is required and the same document must be signed and witnessed, any witness should electronically affix their signature in the execution block immediately after the signatory to both identify them as the witness and indicate that they were physically present at the time of execution and witnessed the act of signing
  • an appropriate method of electronic signature is used (e.g. an exchange of pdf versions, affixing facsimile copies of electronic signatures or use of a digital signing program)
  • any signatory uses a strong password on their email account
  • when production of hard copies is feasible, retaining a hard copy of the contract or deed which has been executed by the signatories
  • where possible, consider ‘locking’ the signed documents to prevent further amendments being made to that document – noting that with current technology, very few methods of ‘locking’ a document are foolproof
  • caution should be exercised when accepting a document that has been electronically signed by another party. Steps should be taken to require that party to establish to the agency’s reasonable satisfaction the elements of identity and reliability and to minimise the risk of fraud. For example, sending a letter to the signatory at a known mail address thanking them for providing their electronically signed document (and asking them to contact you immediately if they did not so provide it)
  • clauses are added to relevant documents in which the parties state that they intend to sign electronically and will be bound by their electronic signatures
  • the signatory confirms that there are no limitations under its current financial delegation instrument and in any other internal delegations that require execution of the documents by physical signature.

Signing

Signatures generally

The common law accepts that documents can be signed by a party in ways other than a traditional pen and ink signature (e.g. marks, pseudonyms, printed names and stamps).

The key characteristics of a signature as distinct from ordinary writing are that a signature and the act of signing should:

  • evidence the signatory’s identity (that is who signed the document)
  • evidence the signatory’s intention to be legally bound by the signed document.

Ideally, a signature will also assist in the authentication of a document (for example showing that a document is not merely a draft) and will make it difficult for a signatory to deny that they are bound by a document (absent evidence to the contrary such as fraud or forgery).

Physical signatures, electronic signatures and digital signatures explained

It is helpful to distinguish between physical, electronic and digital signatures.

Type of Signature Description Examples
Physical or ‘wet ink’ The method of marking a physical document to indicate assent to its terms.

Handwritten signature made with ink on a physical document.

A person’s mark on a physical document.

Electronic Distinct from physical signatures in that they leave no physical impression on the
document that they relate to. Essentially, any electronic communication which
satisfies the characteristics of a signature (i.e. evidencing identity and intention)
has the potential to be a legally effective electronic signature.

Typing a name in electronic format Scanning and inserting (pasting) a physical signature into an electronic document.

A name appearing in the ‘From’ field in an email.

Clicking an ‘I accept’ button.

Digital

A type of electronic signature that incorporates a verification element, most often cryptographic authentication technology.

Digital signatures under a Public Key Infrastructure (PKI) system provide high standards of assurance of signatory identity, document confidentiality and integrity and non-repudiation.

To use digital signatures, a specialised platform or software is required.

Exercise caution in choosing the platform or software to ensure that it is based on PKI.

Documents which may be signed electronically

Under the Electronic Transaction Act 1999 (Cth) (ETA) and similar State and Territory legislation,1 many documents may be validly created and signed electronically. The ETA does not displace the common law.

Under the ETA if a law requires a person’s signature, there are broadly 3 requirements for a valid electronic signature – being identification, reliability and consent.

  • Identification – the recipient must be able to identify from the method of execution the person signing and confirm that the person signing intends to be bound by the information communicated (typically an electronic signature accompanied by the signatory’s name and position).
  • Reliability – the method used to sign must be reliable, which is objectively determined by considering all relevant circumstances and the purpose for which the signature is required (it may be sufficiently reliable that a password protected email account is used to send the communication, or that software is used which requires a password or authentication before a digital signature is inserted).
  • Consent – the counterparty to the document being electronically signed must agree to the document being signed electronically. If the Commonwealth is the receiving entity, it may impose technical requirements in connection with the signature.

While each document must be considered in context, examples of documents which may be signed electronically include:

  • correspondence (including letters, Memoranda of Understanding and emails)
  • contracts (preferably where there is no witnessing requirement – as to which see comments below)
  • work orders, extensions and variations
  • deeds, including deeds poll, but only where these are governed by NSW, Victorian or Queensland law which permits deeds to be created in electronic form and signed and attested electronically
  • land registry documents which may be signed and lodged through an Electronic Lodgement Network (ELN).

Solutions for documents which may not be signed electronically

Certain documents may not be able to be signed electronically and for some documents electronic execution may be considered inappropriate (for instance high value or high risk arrangements). Options for signing such documents are discussed below.

Temporary modifications to statute made in response to the COVID-19 pandemic are summarised in the Appendix to this fact sheet. The below discussion should be read subject to the specific temporary modified requirements in each jurisdiction.

Property documents requiring registration

Electronic Lodgement Network available

These must be signed in accordance with the requirements of the titles office in each jurisdiction and where these cannot be registered through an ELN they will normally require original documents with ‘wet ink’ signatures.

Agreement to sign document via ‘wet ink’ at a later date

Where wet ink signatures cannot be obtained and electronic signing and lodgement through an ELN is unavailable, consider securing a commitment from the counterparty in the form of an electronically signed agreement to execute the relevant instrument or dealing in registrable form with ‘wet ink’ signatures at the earliest reasonable opportunity whereupon the electronically signed agreement would cease to have effect. Among the things to be considered here will be any relevant state based regulatory time limits concerning lodgement of instruments or dealings.

Deeds

General

Fact Sheet 37 sets out the formalities for execution of deeds. At common law, a deed must be written on paper. Legislation may modify the common law.

Approach in jurisdictions which permit the electronic creation and signing of deeds

New South Wales

Since 22 November 2018, legislation in New South Wales has overridden the common law requirement that a deed must be on paper, and permits the electronic creation and signing of deeds.2 There is some uncertainty surrounding whether the New South Wales legislation is confined to execution by individuals, or extends to corporations.3

Victoria

On 23 March 2021 the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) received royal assent. The Act makes permanent the operation of various temporary measures introduced in response to COVID-19. Notably, the Act creates section 12A of the Electronic Transactions (Victoria) Act 2000 which allows for deeds to be created in electronic form and signed by electronic communication. These changes commenced on 26 April 2021.

Section 9 of the Electronic Transactions (Victoria) Act 2000 provides that a requirement for the signature of a person is taken to have been met in relation to an electronic communication if:

  • a method is used to identify the person and to indicate the person’s intention in respect of the information communicated; and
  • the method used was either:
    • as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
    • proven in fact to have fulfilled the functions described in the first dot point, by itself or together
      with further evidence; and
  • the person to whom the signature is required to be given consents to that requirement being met
    by way of the use of the method mentioned in the first dot point.

Queensland

In Queensland, the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020 amended the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020.

Under the Regulation (as amended) an instrument that is to have effect as a deed may be made in the form of an electronic document and may be electronically signed (reg 12O(1)). This can be done without the consent to the making of it in that form by any other person (reg 12O(2) & (3)). The signing of an electronic deed does not require a witness (reg 12S). The instrument must contain a conspicuous statement that it is a deed (reg 12N(1)(b)). The instrument takes effect as a deed even if it is not written on paper or parchment, not an indenture or stated to be an indenture, or is not sealed or stated to be sealed (reg 12N(2)). Corporations may sign deeds in a way consistent with the Corporations Act (see below) (reg 12Q). Deeds may be signed using counterparts or true copies for separate signatures (reg 12R).

The Regulation will expire on the ‘COVID-19 legislation expiry day’ prescribed in section 4A of the COVID-19 Emergency Response Act 2020 (Qld), which is 30 April 2022.

Solutions for jurisdictions which do not permit the electronic creation and signing of deeds

Using contract form instead of a deed

For agreements which may originally be intended to be created in the form of a deed but are capable of satisfying the formalities of a contract (i.e. essentially where consideration is passing) and which do not need to be in the form of a deed, these may be reframed as a contract and signed electronically. It should also be noted that a document which purports to be a deed but which fails to satisfy the formalities of a deed may nevertheless be enforceable as a contract if it otherwise satisfies the requirements of a contract.

In deciding whether a deed might be reframed as a contract, the following benefits of deeds should be considered:

  • they are valid without the need to establish that consideration has been provided
  • the limitation period for enforcing rights under deeds is longer than under contracts
  • they may be binding on each party immediately on that party signing and delivering their counterpart even in the absence of the other party signing
  • there may be additional remedies available under some forms of deed
  • they may contain provisions which appoint one party as the attorney of the other permitting the appointed attorney to sign (other) deeds.

Agreement to execute deed via ‘wet ink’ in future

A further option to consider is for the parties to electronically sign an agreement in electronic form which annexes the form of deed (and any other related document which the parties intend to be signed in hard copy with a ‘wet ink’ signature in due course) and which commits the parties to execute that or those annexed documents at the earliest opportunity, and in the interim confirms that the parties agree to comply with the terms of the annexed deed/documents as if they were formally executed. There would need to be consideration for this agreement to be enforceable as a contract, so this may be problematic if consideration does not pass under the annexed deed, and solutions within the terms of the agreement may be required. Note that an exchange of promises may be sufficient consideration.

An advantage of this approach is that it will ultimately result in the parties physically signing the annexed deed and other documents. At its simplest, this could be achieved by an exchange of emails annexing the agreed deed/documents and agreeing in the terms of the email both to be bound by them and to execute hard copies at the earliest opportunity.

Signing pursuant to authority

A deed may be signed on behalf of another person or on behalf of a company if the authority of the person signing also derives from a deed (i.e. a power of attorney). Accordingly, this option will only be viable for deeds to be signed by that attorney or authorised person if the original authority can be granted via a deed.

Witnessing of documents

Generally

The witnessing requirement for deeds derives from statute and is required in all jurisdictions except Victoria.4 It is not a formal requirement for the validity of a deed at common law.5 A witnessed document will normally be better evidence of the identity of the signatory and their intention to be bound than a document that has not been witnessed. Even in the absence of a requirement at common law, it has long been the practice for an attesting witness to sign a deed in witness of the fact that the deed has been signed, sealed and delivered by the executing party.

Witnessing electronic or digital signatures for documents generally is legally and technologically complex. Subject to the statutory modifications in some jurisdictions which permit witnessing by audio-visual link, the witness needs to be physically proximate when the signatory signs and must see the physical act of electronic execution, before attesting to that fact by themselves signing the same document. These requirements pose a difficulty in certain contexts, such as any requirements for social distancing.

Additionally, there is a risk that the process of electronic execution may be such that a separate but identical copy of the signed document is created which the witness then signs. This might occur where, for example, the document is electronically sent from one device (where the signatory’s signature is applied) to another (where the witness’s signature is applied). Online or cloud based services are more likely to operate in this way. This may be grounds on which the validity of execution of the deed may be challenged.

Approach in jurisdictions which permit remote witnessing

New South Wales

In NSW, the Electronic Transactions Act 2000 No 8 (NSW) has been amended to provide for a pilot scheme under which documents can be witnessed and attested by audio-visual link until 1 January 2022. For example, by using Zoom or Skype with video. The documents that can be witnessed by audio-visual link include a will, power of attorney, enduring power of attorney, deed, agreement, enduring guardianship appointment, affidavit and statutory declaration. These provisions are transferred from the Electronic Transactions Regulation 2017 (NSW).

A person witnessing the signing of a document by audio-visual link must (s 14G(2)):

  • observe the person signing the document (the signatory) sign the document in real time
  • attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document
  • be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory
  • endorse the document, or the copy of the document, with a statement:
    • specifying the method used to witness the signature of the signatory; and
    • that the document was witnessed in accordance with section 14G of the Electronic Transactions Act 2000.

A witness may confirm the signature was witnessed by signing a counterpart of the document, or, if the signatory scans and sends a copy of the signed document electronically, by countersigning the document as soon as practicable after witnessing the signature (s 14G(3)).

Victoria

The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) amends the Electronic Transactions (Victoria) Act 2000 (Vic) to introduce section 12 which permits witnessing by audio-visual link. As noted earlier, these changes commenced on 26 April 2021. In order for witnessing by audio-visual link to be valid, the following requirements must be met:

  • the witness saw the signatory sign the document;
  • the witness is reasonably satisfied that the document signed as a witness is the same document or a copy of the document;
  • the witness includes a statement on the document signed as a witness that all requirements of section 12 of the Electronic Transactions (Victoria) Act 2000 (Vic) have been met; and
  • the above requirements all occurred on the same day.

The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) also provides
for witnessing via audio-visual link with regard to the Oaths and Affirmations Act 2018 (Vic), Powers of
Attorney Act 2014
(Vic) and Wills Act 1997 (Vic).

Queensland

In Queensland, the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 as amended by the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020 and the Justice Legislation (COVID-19 Emergency Response - Documents and Oaths) Amendment Regulation (No. 2) 2021 permits remote witnessing by audio-visual link of certain types of documents until 30 April 2022. This includes affidavits, declarations and general powers of attorney. As noted above, deeds are not required to be witnessed.

A document may be witnessed by audio-visual link if the witness is a special witness (e.g. an Australian legal practitioner or a notary public).

Australian Capital Territory

In the ACT, the COVID-19 Emergency Response Act 2020 (ACT) as amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT) permits by section 4 witnessing by audio-visual link of relevant documents. Relevant documents are defined as an affidavit, a will, a health direction and a general power of attorney or an enduring power of attorney. In order for the remote witnessing to be valid, the following requirements must be met:

  • observe the person signing the document (the signatory) sign the document in real time
  • confirm the signature was witnessed by signing the document or a copy of the document
  • be reasonably satisfied the document the witness signs is the same document, or a copy of the document, signed by the signatory; and
  • endorse the document, or the copy of the document, with a statement:
    • of the method used to witness the signature of the signatory; and
    • that the document was witnessed in accordance with section 4.

The Act provides that without limiting how a witness may confirm a signature, they may sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or countersign a scan of the document as soon as practicable after the signing of the document.

The provisions for witnessing by audio-visual link will remain in force until 14 February 2022.

Tasmania

In Tasmania, the COVID-19 Disease Emergency Notice under section 17(1) of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) permits remote witnessing by audio-visual link of certain types of documents. This includes statutory declarations under section 14 of the Oaths Act 2001 (Tas).

In order for the remote witnessing to be valid, the following requirements must be met:

  • the person observes, in real time, the action being taken;
  • the person satisfies himself or herself that the document in relation to which the action is taken is the same document, or a copy of the document, to which the person is to apply his or her signature in accordance with the next subparagraph;
  • the person attests to the observation made by signing the document, or a copy of the document, and endorsing the document, or the copy of the document, with a statement specifying that the document was sworn, made or signed, respectively, and witnessed, in accordance with this notice.

Western Australia

In Western Australia, Division 4 of Part 2 of the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) permits remote witnessing by audio-visual link of documents for the purposes of a relevant enactment until 31 December 2021. This includes statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).

In order for the remote witnessing to be valid, the following requirements must be met:

  • person A and the witness are able to see and hear each other;
  • the witness observes person A do the thing;
  • if necessary, the witness signs the document or otherwise deals with it, if satisfied that:
    • the document they are about to witness is the document signed or otherwise dealt with by person A or a counterpart or copy of that document;
    • signs the document or the counterpart or copy as required under the relevant enactment; and
    • endorses the document or the counterpart or copy with a statement that it was dealt with in accordance with this section.

The witness must comply with the above if the relevant enactment imposes a requirement as to the presence of the witness – in accordance with the requirement. If there is no requirement as to the presence of the witness, then the witness may sign – (i) while the witness and person A are still able to see and hear each other by audio-visual communication; or (ii) if it is not practicable to comply with (i), as soon as practicable after the witness and person A cease to be able to see and hear each other by audio-visual communication.

South Australia

Solutions for jurisdictions which do not permit remote witnessing

Physical proximity for the purposes of witnessing could include being present at a distance, such as outside the room in which the document is signed and observing through a window. In this scenario, signing the same physical document as the witness within a reasonable time after the signatory signs at or near the same location, even if at the time the witness signs they are not physically proximate to the signatory.

Assuming that the witness is physically proximate to the signatory and saw that person sign the document, either of the following 2 methods would also satisfy the requirement that the same document is signed and witnessed:

  • inserting the signatures of the signatory and witness into the same electronic document at the same time on the same device, and in order to do this the signatory and the witness would be in the same room at the time these steps occur
  • using a digital platform which replicates the physical process as closely as possible (e.g. a digital platform could be used which allows for the same electronic document to be signed on the same device, and includes steps through which the signatory verifies that the witness is physically present, and certain data such as time, the device’s Internet Protocol (IP) address, etc. is recorded for each signature).

Normally contracts do not require witnessing but it would be prudent to check the requirements of
any legislation that applies to the arrangement.

Documents signed by Corporations Act companies

Emergency legislation modifications

Corporations Act companies

From 6 May 2020 to their expiry on 21 March 2021, the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) and the subsequent Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 (Cth) permitted the electronic execution of documents under section 127 of the Corporations Act 2001 (Cth).

The Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 (Cth) received assent on 13 August 2021 and temporarily amends the Corporations Act 2001 (Cth) to facilitate electronic execution by companies, among other things. The Act did not pass Parliament before the expiry of the above Determinations, and so there has been a period during which no additional provisions relating to electronic execution were in force. The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), and the temporary amendments to the Corporations Act it facilitates, will cease to apply on and from 1 April 2022.

A new section 127(2A) of the Corporations Act provides that the fixing of a common seal is taken to have been witnessed by a prescribed person – being a company officer or officers – if that person or persons observe the fixing of the seal by electronic means, they sign the document and the document includes a statement that the person observed the fixing of the seal by electronic means.

Section 127(3A) allows for physical copies or counterparts of a document to be signed where the copy or counterpart includes the entire contents of the document.

Section 127(3B) of the Corporations Act now provides for the circumstances under which an electronic copy or counterpart of a document including a deed will be taken to have been signed by a person for the purposes of s 127. This includes circumstances both where a corporation is execution under seal (i.e. the witnessing of the affixing of the seal) and without a seal (ie by the company officer or officers).

A document will be taken to be signed by a person if:

  • a method is used to identify the person and to indicate the person’s intention to sign a copy or counterpart of the document;
  • the copy or counterpart includes the entire contents of the document; and
  • the method used was either
    • as reliable as appropriate for the purpose for which the document was generated or communicated, in light of all the circumstances, including any relevant agreement; or
    • proven in fact to have indicated the person’s identity and intention to sign by itself or
      together with further evidence.

Subsection (3C) also provides that the copy or counterpart of a document which is being signed or witnessed need not include further signatures, or the common seal. Notes have also been inserted at sections 129(5) and (6) of the Corporations Act which refer to the new subsections, making it clear that the assumptions of due execution will apply where documents appear to be executed in accordance with the new laws.

The Treasury Laws Amendment (COVID-19 Economic Response No. 2) Bill 2021 (Cth) received royal assent on 10 August 2021 and amends schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) 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.

The expiry of the temporary measures will not affect the validity of documents executed in accordance with the Determinations up to 21 March 2021.

The operation of the now expired Determinations

The effect of the new amendments to the Corporations Act discussed above is similar to the operation of the now expired Determinations. Documents which were signed in accordance with the Determinations while they were in force remain valid and enforceable notwithstanding the expiry of the Determinations.

The Determinations were made under section 1362A of the Corporations Act and modified the operation of sections 127(1) and 129(5) of the Corporations Act. Section 1362A was inserted by Schedule 8 of the Coronavirus Economic Response Package Omnibus Act 2020 (Cth). The most recent determination expired on 21 March 2021.

Under the now expired determinations, a company could execute a document, including a document in electronic form, without using a common seal if each person specified in paragraph 127(1)(a), (b) or (c) (i.e. the company officers), as the case requires, of the Corporations Act either:

  • signs a copy or counterpart of the document that is in a physical form; or
  • complies with the following requirements for an electronic communication:
    • the document they are about to witness is the document signed or otherwise dealt with by person A or a counterpart or copy of that document; and
    • the method:
      • is as reliable as appropriate for the purpose for which the company is executing the document, in light of all the circumstances, including any relevant agreement; or
      • is proven in fact to have fulfilled the functions of identification and proof of intention as to the content of the document, by itself or together with further evidence.

The copy, counterpart or electronic communication was required to include the entire contents of the document, but needed not include the signature of another person signing the document nor any material included in the document because of section 6(4) of the determination.

Under the determination, a person could assume in accordance with section 129(5) of the Corporations Act that a document including an electronic document had been duly executed by the company if the document appeared to have been signed in accordance with the above requirements.

Companies in the Norfolk Island

The Norfolk Island Continued Laws Ordinance 2015 (NI), as amended by the Norfolk Island Continued Laws Amendment (Coronavirus Economic Response Measures) Rules (No. 3) 2020 (NI), modifies the operation of sections 93 and 111 of the Companies Act 1985 (NI) (Companies Act).

Compared to s 127 of the Corporations Act, s 111 of the Companies Act provides that a company incorporated under the Companies Act can make, vary or discharge a contract without using a common seal if a person is acting under the express or implied authority of the company. The Amendment inserts s 675 into the Act which permits the electronic execution of documents with the same requirements of the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 (Cth) above.

Similar to s 129 of the Corporations Act, s 93 of the Companies Act provides assumptions a person dealing with a company can rely upon. The Amendment inserts s 676 which provides a person can assume a document including an electronic document has been duly executed by the company if the document appears to have been signed in accordance with the requirements in s 111 as modified by s 675.

Sections 675 and 676 were originally intended to be temporary. This intention was reflected in section 678 which stated that the provisions were to be repealed on 22 March 2021. However, Part 30 of the Norfolk Island Continued Laws Amendment (Coronavirus Economic Response Measures) Rules (No. 3) 2020 repealed section 678, meaning the provisions are now permanent.

Generally

There are a number of execution methods available to companies6 – including execution by a person holding a power of attorney or a person who is otherwise authorised to execute a document by the Company (for example through a board minute).

Sometimes it is necessary or desirable for a document to be executed by a Company pursuant to s 127(1) of the Corporations Act so that another party can rely on the presumption in s 129(5) of that Act that a document executed in accordance with s 127(1) by a director and company secretary or 2 directors has been duly executed.

If you cannot rely on the presumption in s 129(5) of the Corporations Act, you must satisfy yourself that the person executing the document on behalf of the company is duly authorised to do so. Fundamentally this means that you should seek evidence of their authority. For example:

  • execution by power of attorney: ensure that the document is signed by an attorney (being an individual) under a power of attorney and evidence of the attorney’s appointment by the company is provided7
  • execution under board authority: request a copy of the board authority and confirm that it applies to the document that is being executed
  • execution as permitted under the company’s constitution: if the constitution of the company sets out another method of execution this could be adopted if legally permissible for the type of document (for example the constitution might specifically allow electronic execution)
  • execution under s 127(1) of the Corporations Act: if execution must proceed purportedly in reliance on s 127(1) of the Corporations Act, consider:
    • including in the agreement an electronic execution clause and also warranties as to the authority of the persons signing similar to the statutory assumptions in s 129(5)
    • requiring evidence of personal authentication of the officer signatories, and that a single electronic document was signed
    • requiring evidence of the identity and actual authority of the signatory or signatories to the relevant documents (e.g. board minutes or company resolutions).

Commonwealth companies

Commonwealth companies could put in place powers of attorney or board resolutions to provide appropriate authority for the business of the company to be conducted efficiently.

 

Related issues

Legal advice

For high-value or high-risk arrangements where there are obstacles to execution occurring in the traditional way or where the law as it relates to electronic execution is unsettled, legal advice should be obtained.

Physical signing with electronic delivery

This fact sheet focuses on electronic execution and does not extend to detailed consideration of effective binding greements or deeds which may be created through a process of printing a physical document, having that document physically signed (and witnessed where necessary) and then scanning and sending that document to the counterparty. Where mail or courier services are accessible, the physical document could be sent or counterparts exchanged. This approach avoids some of the potential uncertainties connected with electronic execution and may be suitable for some documents, but not all.

Counterparts using different execution methods

There is no compelling legal reason that a deed or a contract could not be executed in counterpart using different valid methods of execution for each counterpart. As noted in Fact Sheet 37, the legal effectiveness of exchange of counterpart deeds is somewhat unclear but it is a commercial reality.

This solution might be considered to accommodate the most reliable method of execution which can practically be achieved by each party in their own circumstances, and the level of risk each are prepared to absorb.

As noted earlier, deeds executed in counterpart can be binding on a party as soon as they are executed notwithstanding that execution by another party or exchange has not occurred.

Early engagement

Consider early engagement with the other parties to any arrangement to raise the prospect of electronic signing as a method of execution and to reach agreement as to how the parties will approach this, including practical matters and any specific legal drafting which the resulting agreement will contain.

Making legislative instruments

Under the Legislation Act 2003 (Cth), a legislative instrument is ‘made’ by the signing, sealing or other endorsement of the instrument by the person or body empowered to make it. A Minister or other rule-maker could probably ‘make’ such an instrument by personally applying an electronic signature, on the basis that this would constitute their endorsement (approval) of the instrument.

Where this is done, it would be advisable that a person witness the application by the Minister of their electronic signature and make a contemporaneous file note to that effect, to ensure that evidence can be provided should there be a question raised in future as to whether it was the Minister who endorsed the document. Alternatively, it may be that the electronic signature could be locked to the Minister personally and evidence provided, if required, that only the Minister could access and apply it.

Current legislative developments in response to COVID-19

At the date of preparing this fact sheet, emergency legislation has been enacted by the Commonwealth and by some states and territories to create regulation-making and declaration-making powers to enable electronic signing and the modification of requirements such as witnessing. Regulations, declaration and determinations have been made in some jurisdictions pursuant to those laws. Some of these temporary measures have since been incorporated into legislation and as such are now more permanent solutions.

The Appendix to this fact sheet summarises relevant historical and current legislation and affected laws, and the related regulations, declarations and determinations.


 

1 The relevant state and territory Acts are the Electronic Transactions Act 2001 (ACT), the Electronic Transactions Act 2000 (NSW), the Electronic Transactions (Northern Territory) Act 2000 (NT), the Electronic Transactions (Queensland) Act 2001 (Qld), the Electronic Communications Act 2000 (SA), the Electronic Transactions Act 2000 (Tas), the Electronic Transactions (Victoria) Act 2000 (Vic) and the Electronic Transactions Act 2011 (WA).

2 Section 38A, Conveyancing Act 1919 (NSW)

3 Section 38 of the Conveyancing Act 1919 (NSW) expressly states that that section does not affect execution by corporations, however it is not clear how this interacts with s 38A which does not contain any similar limitation

4 See Fact Sheet 37, Appendix 2

5 Goddard’s Case (1584) 2 Co Rep 4b at 5a; 3 Leon 100; 76 ER 396; Garrett v Lister (1661) 1 Lev 25; 83 ER 279

6 See Fact Sheet 37, page 2

7 See Fact Sheet 37, page 9

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Appendix to fact sheet 38

COVID-19 Response Legislation Summary of power/amendment Legislation to which power extends Declaration / Regulation description and effective date
 

Commonwealth

Coronavirus Economic Response Package
Omnibus Act 2020
(the Omnibus Act).
(Assent 24/03/2020).
Various Commonwealth legislation was amended to
facilitate different elements of the Commonwealth’s
response package.

Legislation relevant to electronic execution amended by the Omnibus Act includes:

  • Corporations Act 2001.

The Omnibus Act inserted section 1362A into the Corporations Act which, among other things, permits the Minister to modify a provision of the Corporations Act by legislative instrument.

The Corporations (Coronavirus Economic Response)
Determination (No. 3) 2020 (Cth) has been made under
section 1362A of the Corporations Act.

The effect of this determination as it relates to electronic execution is discussed in the body of this fact sheet.

(Effective date 22/09/2020).

Note: The Determination has now expired. The implications of this is explained in the body of this fact sheet.

Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020.

(Assent 9/04/2020).

Minister responsible for provision can, by legislative instrument, determine that the provision is varied, rendered inapplicable or replaced by another provision.

(Sch 5, cl 1(2)).

Determinations may be made in relation to a provision of any Act or legislative instrument that requires or permits a ‘relevant matter’ (e.g. signature, witnessing, attestation).

(Sch 5, cl 1(1)).

No determinations have been made as at the date of publication of this fact sheet.

Treasury Laws Amendment (COVID-19 Economic Response No. 2) Act 2021

(Assent 10/08/2021)

Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 is amended to reintroduce a temporary mechanism for responsible Ministers to change arrangements for meeting information and documentary requirements under Commonwealth legislation.

To be repealed at the end of 31 December 2022.

Commonwealth laws. Not applicable.

Treasury Laws Amendment (2021 Measures
No. 1) Act 2021

(Assent 13/08/2021)

The Corporations Act 2001 (Cth) is amended to, among other things, include provisions to allow electronic execution and split execution of documents and deeds.

To be repealed on and from 1 April 2022.

Corporations Act 2001 (Cth) Not applicable
Norfolk Island Continued Laws Ordinance
2015
(NI).
The Companies Act 1985 (NI) is amended to permit the electronic execution of documents under section 111.

Legislation relevant to electronic execution amended by the Norfolk Island Continued Laws Ordinance 2015 includes:

  • Companies Act 1985 (NI).

Norfolk Island Continued Laws Amendment (Coronavirus Economic Response Measures) Rules 2020 (No. 3) (NI).

(Effective date 22/12/2020).

ACT

COVID-19 Emergency Response Act 2020 (Effective from 8/04/2020) as amended by the COVID-19 Emergency Response Legislation Amendment Act 2020

(Amendment effective from 14/05/2020)

Relevant documents (an affidavit, will, health direction and a general power of attorney or an enduring power of attorney) may be witnessed by audio visual link.

(s 4)

Any other territory law. Not applicable.

NSW

COVID-19 Legislation Amendment (Emergency Measures) Act 2020.

(Assent 25/03/2020).

Regulations may be made under any relevant Act (listed to the right) to alter arrangements for signing documents, witnessing signatures (including requirements for certification and verification of identity) or attesting documents.

(s 17).

  • Conveyancing Act 1919
  • Oaths Act 1900
  • Guardianship Act 1987
  • Succession Act 2006
  • Powers of Attorney Act 2003
  • Electronic Transactions Act 2000
  • any other Act administered by the Attorney General.

Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.

The regulation provided in a new Schedule 1 to the Electronic Transactions Regulation 2017 that witnessing of documents can be by audio-visual link if the conditions in cl 2(2) of Sch 1 are complied with, effective 22/04/2020.

Note: This schedule has since been repealed and these provisions moved to section 14G of the Electronic Transactions Act 2000, commencing 29/09/2020. The conditions for valid witnessing of documents via audio-visual link are now contained in s 14G(2) of this Act (see below).

COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020.

(Assent 14/05/2020).

Section 17 of the Electronic Transactions Act 2000 is amended to allow that regulations may be made under that section or under another Act to provide for matters including making documents in particular forms, execution and provision of documents.

(Sch 1, Subsch 1.3).

Legislation relevant to electronic execution amended by the Omnibus Act includes:

  • Electronic Transactions Act 2000.
No relevant regulations have been made as at the date of publication of this fact sheet.

Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 No 24.

(Assent 28/09/2020).

Schedule 1 to the Electronic Transactions Regulation 2017 is repealed. These provisions are transferred from the Electronic Transactions Regulation 2017 to the Electronic Transactions Act 2000 No 8.

Electronic Transactions Act 2000 No 8 is amended to create a pilot scheme for witnessing of documents via audio-visual link, to be repealed on 1 January 2022.

(Part 2B, s 14G(2)).

Another NSW Act or another law. Not applicable.

Northern Territory

Legislation is yet to be enacted as at the date of publication of this fact sheet.      

Queensland

COVID-19 Emergency Response Act 2020.

(Assent 23/04/2020).

Regulations may be made modifying or suspending certain requirements, including signing, witnessing, verifying or attesting documents.

(s 9).

The regulations may apply to any Act or a common law rule that requires or permits any of the relevant matters in s 9(1). Justice Legislation (COVID-19 Emergency Response - Documents and Oaths) Regulation 2020 as amended.

South Australia

COVID-19 Emergency Response Act 2020.

(Assent 9/04/2020).

Governor may suspend or modify any requirement under an Act, law or instrument relating to preparation, signature, witnessing, attestation, etc. of any document.

(s 16).

The regulations may apply to an Act or law, or an instrument, relating to the preparation, signing, witnessing, attestation, certification, stamping or other treatment of any
document.

COVID-19 Emergency Response (Section 16) Regulations 2020 (SA) as amended by the COVID-19 Emergency Response (Section 16) (Real Property Act) Variation Regulations 2021

(Effective date 09/09/2021).

Tasmania

COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020.

(Assent 27/03/2020).

The Minister may declare, by notice, that any requirement under any Act for an action to be taken physically (such as a signature), or evidenced in a document, may be taken or evidenced by electronic means.

(s 17).

The declaration may alter the requirements of any Act or instrument of a legislative character.

COVID-19 Disease Emergency Notice 18/2020 was gazetted
on 17 June 2020.

The declaration provides for electronic service and witnessing the signing of scheduled documents by audio-visual link.

(effective date 17/06/2020).

Victoria

COVID-19 Omnibus (Emergency Measures) Act 2020.

(Assent 24/04/2020).

Regulations may be made to modify or disapply the application of a ‘Justice Act provision’ that provides for or regulates the matters listed in s 4 (e.g. witnessing, executing, signing).

(s 4).

The regulations may apply to a ‘Justice Act Provision’ as defined in s 3, including Acts
administered by the Attorney General such as the;

  • Electronic Transactions (Victoria) Act 2000
  • Property Law Act 1958.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

The regulation provide for electronic signatures, witnessing the signing of documents by audio visual link, and related matters.

The relevant Acts are the Electronic Transactions (Victoria) Act 2000, Oaths and Affirmations Act 2018, Powers of Attorney Act
2014
, Wills Act 1997.

(Effective date 12/05/2020).

Note: This Regulation ceased to apply on 26 April 2021. The Justice Legislation Amendment (System Enhancements and
Other Matters) Act 2021
(Vic) has introduced permanent amendments to the Electronic Transactions (Victoria) Act 2000 (Vic) (see below).

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic).

(Assent 23/03/2021; changes commenced 26/04/2021).

Electronic Transactions (Victoria) Act 2000 (Vic) is amended to permit deeds to be created in electronic form and signed by electronic communication. Amendments also permit witnessing of documents via audio visual link. Any other law of Victoria. Not applicable.
       

Western Australia

COVID-19 Response and Economic Recovery Omnibus Act 2020

For the purposes of relevant enactments, if a person requires something to be witnessed, a witness may be present by audio-visual communication and may sign the document.

(Pt 2 Div 4).

  • Coroners Act 1996
  • Family Court Act 1997
  • Heritage Act 2018
  • Land Information Authority Act 2006
  • Litter Act 1979
  • Metropolitan Redevelopment Authority Act 2011
  • Mining Act 1978
  • National Trust of Australia (WA) Act 1964
  • Oaths, Affidavits and Statutory Declarations Act 2005
  • Petroleum Act 1936
  • Planning and Development Act 2005
  • Public Transport Authority Act 2003
  • Water Agencies (Powers) Act 1984
  • Water Corporations Act 1995
  • Western Australia Land Authority Act 1992
  • any other prescribed enactment.
Not applicable.

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For further information please contact:

Contacts

CBR
Beal, Tony

Deputy General Counsel Commercial

MEL
Miraglia, Teresa

Deputy General Counsel and Property Practice Leader Commercial

CBR
Moran, Sacha

Senior General Counsel

Energy, Environment and Regulation

This material was updated on 13 September 2021. Any legislation, policies or documentation referred to may have changed since that date. This material is provided to AGS clients for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of this fact sheet.