COVID-19 relief permitting electronic signatures by companies has now expired
The temporary COVID-19 measures that modified the Corporations Act 2001 (Cth) (Corporations Act) to allow for the electronic signing of documents and split execution by companies have expired.
Why does this matter?
Before the COVID-19 relief, it was uncertain whether electronic execution or split execution could be effective under section 127 of the Corporations Act.
While the Electronic Transactions Act 1999 (Cth) generally permits transactions to occur electronically, it does not apply to companies regulated by the Corporations Act.
Section 127 of the Corporations Act allows a company to execute documents without a common seal if the document is signed by:
two directors;
a director and a company secretary; or
for private companies with a sole director who is also the sole company secretary, by that director.
The Corporations (Coronavirus Economic Response Determination (No 3) 2020 expressly allowed for directors to sign documents pursuant to section 127 of the Corporations Act electronically and remotely, using separate counterparts. However, this was a temporary measure and while the measure was expected to be extended by Parliament, this has not happened. The relief expired on 21 March 2021.
What does this mean?
Unless we see further legislative change, directors and company secretaries signing a document pursuant to section 127 of the Corporations Act should do so by wet ink signature only and by signing the same piece of paper to ensure there are no defects in execution.
Can I still sign remotely and electronically?
Section 127 of the Corporations Act does not provide the only way in which company can execute a document. Section 126 of the Corporations Act allows a company to execute a document pursuant to its constitution or by an agent or attorney who has the authority to do so.
Therefore, a company may be able to validly execute documents electronically or by other means if its constitution allows it to do so.
How can we help?
If you require any advice or assistance regarding corporate governance, please contact our Commercial Team.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.