As a result of Covid-19 the commonwealth and the state governments have introduced a number of extraordinary measures to allow for certain documents to be executed remotely during the COVID-19 (coronavirus) emergency.
In respect of companies incorporated under the Corporations Act 2001 (Cth) on 5 May 2020, Josh Frydenberg MP issued the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 which for the next 6 months will allow companies and officers to use electronic software such as DocuSign to execute documents under s 127 of the Corporations Act 2001 (Cth), do away with the need to use company seals (where previously required) and allow for signing of documents in counterparts.
In respect of other entities whilst the Commonwealth and each State has had their own legislation allowing for electronic transactions and execution for some time generally only documents which are not required to be witnessed could be signed electronically and the witness was required to be physically present during the execution of the document. For example documents as wills, powers of attorney, the majority of land title documents and statutory declarations have to the witnessed. As a result of Covid-19 a number of exceptions to the normal requirements of witnessing have been made including:
• In Queensland up until 30 September 2020 to allow for the remote witnessing of wills in certain circumstances where the requirements of Supreme Court of Queensland’s Practice Direction No. 10 of 2020 are complied with;
• In Queensland until further advised to allow for the remote witnessing of title documents in certain circumstances where the directions of the Registrar of Titles are followed;
• In New South Wales the Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020(NSW) has been introduced to allow witnessing and attestation of documents to take place by audio visual link up until 26 September 2020. The documents which can be witnessed in this manner include:
o powers of attorney;
o enduring powers of attorney;
o affidavits (including annexures and exhibits); and
o statutory declarations.
so long as the witness:
o observes the person signing the document (“signatory”) sign in real time;
o attests or otherwise confirms this by signing the document or a copy of the document;
o is reasonably satisfied that the document the witness signs is the same document, or a copy of the document signed by the signatory; and
o endorses the document, or a copy of the document, with a statement specifying the method they used to witness the signature of the signatory and that the document was witnessed in accordance with the regulations.
• In Victoria has introduced COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations2020 (these temporary measures will expire on 24 October 2020) allowing for:
o the electronic execution of deeds and mortgages;
o the remote witnessing of documents effecting transactions; and
o the electronic execution and remote witnessing of powers of attorney, wills and statutory declarations (but not affidavits, which are covered in the emergency legislation itself).
Whilst exceptions to the normal requirements of execution have been and may continue to be made it is important to keep in mind:
• These changes are temporary and parties entering into agreements or wishing to execute documents remotely should be aware of the dates these measures will end;
• When using digital signing platforms, it is important to ensure that the platform has the means to verify the identity of each signatory;
• Each of the exceptions noted above is subject to a number of specific requirements which must be met in order for the executions to be valid;
• The identity of the person signing the documents should always be verified by taking reasonable steps to verify their identity; and
• There is always a risk in accepting electronic execution of deeds as they will not strictly satisfy the requirement to be on paper. To deal with this, where possible clauses should be inserted into the document itself on how the document can be signed and if necessary, convert a document drafted as a deed into an agreement.
How can we help?
If you are looking for advice in respect of your contracts and agreements or need assistance with executing documents, please contact the team at Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at [email protected]