Electronic Executions by Companies - COVID-19 Relief

On 13 August 2021, the Treasury Laws Amendment (2021 Measures No.1) Act 2021 (Cth) (Act) was passed to ensure that companies were able to carry on business as usual amidst the extended impact of the COVID-19 pandemic.

The Act notably provides that a document is taken to have been signed by a person if the person:

1. signs a copy or counterpart of the document in physical form; and
2. the copy or counterpart includes the entire contents of the document.

Moreover, an electronic copy or counterpart document will be taken to have been signed by a person if:

1. a method is used to identify the person and to indicate the person’s intention to sign a copy or counterpart of the document; and
2. the copy or counterpart includes the entire contents of the document; and
3. the method used was either:
   1. 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
   2. proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.

While the Act does not prescribe the process by which a person may witness the signing electronically, it is recommended that:

1. the signatory and witness maintain an audio-visual link (e.g. Skype, Zoom, etc) while the signatory is signing the document;
2. during the audio-visual link, the witness sees the signatory signing the document;
3. the witness signs the document (or a copy of the document) either physically or electronically; and
4. the witness states in the document that they have observed the signing of the document using electronic means.

While the above will provide companies with the flexibility they need to carry on their business during the COVID-19 pandemic, the changes introduced by the Act regarding electronic and split executions are temporary and are due to automatically expire on 31 March 2022.

Contact our team of expert Corporate and Commercial lawyers to discuss your specific circumstances today.