The Corporations Amendment (Meetings and Documents) Bill 2021 (Cth) has received Royal Assent and has now commenced.
It creates a permanent statutory mechanism allowing companies registered under the Corporations Act to execute documents (including deeds) under s126 and s127 of the Corporations Act in electronic form and using electronic means.
The key features are:
- Electronic signing. Companies can execute documents (including deeds) in electronic form and using electronic means. The changes are in substance similar to the temporary amendments made to s127 by the Treasury Law Amendments (2021 Measure No. 1) Act 2021. However, the drafting has been refined and the provisions relating to electronic communications and electronic signatures have been moved from Chapter 2G to Chapter 1.
- Agents. An individual agent can execute documents (including deeds) on behalf of companies under s126. The agent may exercise this power without using a common seal and the agent need not be appointed by deed. Witnessing and delivery is not required. The agent can also sign documents in electronic form and using electronic means. If a company executes a document through an agent under s126, a person will be able to rely on the assumptions in s129(3) for dealings in relation to the company.
- Sole director companies. Proprietary companies with a sole director and no company secretary can use the statutory document execution mechanisms.
The changes are outlined in more detail below.
What do these changes mean?
The changes effectively make permanent temporary reforms which have been in place over the last two years and make it easier for companies to sign document electronically.
In practical terms, the changes to s127 do not substantially alter the position existing under the temporary reforms. There are a few minor improvements but electronic execution under s127 continues to be permitted in more or less the same way it has been for the past few months.
However, the changes to s126 are new. One of the big advantages of the s126 changes is that an attorney or other agent for a company can electronically sign a deed irrespective of the State or Territory law which governs the deed. This is significant because without these changes, this would only be possible if the deed is governed by the law of New South Wales, Victoria or Queensland as these are the only jurisdictions which have introduced legislation permitting deeds to be in electronic form. In addition, the agent need not be appointed by deed and witnessing and delivery are not necessary so the signing process for agents under s126 is simpler.
Summary
Here is a summary of the key provisions relating to electronic execution:
- A person may sign a document (including a deed) under s126 or s127 by signing a physical form of the document by hand or an electronic form of the document using electronic means.
- A document may be executed as deed regardless of whether the document is in physical or electronic form.
- The method of signing must:
- identify the person and indicate the person’s intention in respect of the information recorded in the document; and
- be as reliable as appropriate for the purpose for which the information was recorded, or proven in fact to have or proven in fact to have indicated the person’s identity and intention to sign.
- A document executed as a deed under s126 or s127 does not need to be witnessed and does not need to be delivered to be validly executed as a deed.
- Section 126 is amended to provide that an individual (“agent”) acting with the company’s express or implied authority can execute a document on behalf of the company (including a deed), as well as make, vary, ratify or discharge a contract.
- Where an agent is executing a document under s126:
- this power may be exercised without using a common seal
- this does not affect the operation of other laws that requires a particular procedure to be complied with in relation to the contract or document (including a deed), other than to the extent that the law is inconsistent with s126
- the agent need not be appointed by deed
- the agent may execute a document as a deed if the document is expressed to be executed as a deed
- s126 does not limit the ways in which the individual may execute a document (including a deed).
- It is not necessary for:
- a person to sign the same form of the document, page of the document, or use the same method to sign the document, as another person
- the document signed by a person to include all the information recorded in the document.
- A person can sign documents in different capacities and may sign the document in some or all of those capacities by signing the document once.
- The fixing of a common seal to a document under s127(2) can also be witnessed by electronic means.
Please contact us if you have any questions or would like to discuss.
