On 5 May 2020, the Treasurer made a determination which temporarily permits officers of Australian companies to sign agreements under section 127 of the Corporations Act electronically and on separate counterparts.
Application of the Determination
The Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Determination) took effect on 6 May 2020 and will apply for six months.
The Determination will not apply to foreign companies and other entities such as statutory corporations, governments and partnerships of non-companies.
What is the effect of the Determination?
The Determination modifies s127(1) of the Corporations Act 2001 (Cth) such that a company may execute a document (including a deed) if the relevant company officer either:
signs a copy or counterpart of the document in physical form; or
uses electronic communication which reliably identifies the person and indicates the person’s intention about the contents of the document.
The physical or electronic communication must include the entire contents of the document but does not need to include the signature of another person signing the document physically or electronically.
The Determination also confirms that the assumptions of due execution under s 129(5) of the Corporations Act may be made when the above methods are used.
The Explanatory Note for the Determination states that there are numerous means by which officers of a company might sign a document electronically including:
pasting a copy of a signature into a document;
signing a PDF on a tablet, smartphone or laptop using a stylus or finger; or
cloud-based signature platforms such as DocuSign.
As noted in our article on witnessing documents in self-isolation in New South Wales, there has been legal uncertainty regarding whether companies can execute a deed under s 127 of the Corporations Act and sign electronically. This Determination provides some clarity on this point, at least temporarily.
The principles outlined in this information sheet are for guidance only and specific responses and advice will vary depending on the particular facts of your circumstances. The content above is therefore general information only and should not be relied upon as legal advice.
If you have any questions about ensuring that your legal documents are executed correctly, please do not hesitate to get in contact with Blueprint Law via our website or give us a call on +61 (2) 9300 3100.