The digital age has revolutionised many facets of our lives, including the way we execute legal documents. In Australia, electronic execution and witnessing via video link have become significant topics, especially in the wake of the COVID-19 pandemic, which necessitated remote interactions.
Electronic Execution of Documents
The Corporations Amendment (Meetings and Documents) Act 2022 (Cth), Schedule 1 amended Corporations Act 2001(Cth) (Corporations Act) and enabled a person to execute a document (including a deed) on behalf of a company under section 126 or section 127 of the Corporations Act.
These laws generally recognise that a signature can be in electronic form, provided certain conditions are met:
- Identity and Intention: The electronic signature must adequately identify the signatory and indicate their intention in respect of the information recorded in the document (eg executed following s 127(1) of the Corporations Act as a company director).
- Reliability: The method used to sign electronically must be as reliable as appropriate for the purpose for which the information was recorded, in light of all the circumstances, including any relevant agreement (such as consent to execute electronically) or proven in fact to have fulfilled the functions of identity and intention by itself or together with further evidence (eg, signing platform that records the name of the signatory and time of the execution).
In addition, the Corporations Act permits counterpart execution and does not require the execution by a company under s 126 or s 127(1) of the Corporations Act to be witnessed or the deed to be delivered.
Witnessing via Video Link
During the COVID-19 pandemic, Australian states and territories implemented temporary measures to allow for the witnessing of documents via video link. These measures varied across jurisdictions but generally allowed for the remote witnessing of signatures on certain legal documents.
Post-pandemic, in New South Wales, the Electronic Transactions Act 2000 (NSW) allows for documents to be witnessed via audio-visual link. Similar provisions were enacted in Victoria (Electronic Transactions (Victoria) Act 2000 (Vic)) and Queensland (Oaths Act 1867 (Qld)), although no remote witnessing provision for deeds and powers of attorney was enacted in Queensland.
Witnessing via video link allows a witness to observe (must position the camera so that the witness can see you sign, whether by pen or through electronic signature) the signing of a document remotely, through a video conferencing platform such as Facetime, Zoom, or Microsoft Teams.
The legislative procedural requirements for remote witnessing must be strictly followed. Otherwise, the execution may not be validly witnessed. Accordingly, for example, physical execution is prudent for a deed executed by an individual in New South Wales to ensure the document’s validity.
Binding Financial Agreements
A Binding Financial Agreement (BFA) is a document that outlines the division of assets and financial resources in the event of a relationship breakdown.
A BFA can be executed as an agreement or a deed. Generally, no witness is needed when deeds are signed under Victorian law or Queensland law (except for a power of attorney given under a deed). In New South Wales, the Conveyancing Act 1919 (NSW) permits a deed to be created in electronic form and electronically signed and attested. Similar provisions were enacted in Victoria (Electronic Transactions (Victoria) Act 2000 (Vic)) and Queensland (Property Law Act 1974 (Qld)).
Thus, a BFA may be created in electronic form and electronically signed in New South Wales, Victoria, and Queensland without witnessing except in New South Wales.
DocuSign is a popular electronic signature platform that allows parties to sign documents digitally. If DocuSign’s process ensures the identity of the signatories and indicates their intention (such as recording the name of the signatory and time of the execution), as well as is considered reliable, then the electronic signatures obtained via DocuSign can be valid.
Exemptions
Some legal documents (such as advance care directives or arrangements concerning voluntary assisted dying) and among other things, certifying a document as a true copy of the original have been exempted from the legislation in relation to witnessing via Video Link.
Moreover, registrable instruments or documents need to be registered or lodged with government entities or authorities, registrable powers of attorney, statutory declarations, affidavits, and court forms/ documents generally have particular rules applied to them.
If you need to execute your legal documents electronically and witness document execution via video link, please contact The IP House Lawyers.
For any further information or queries on the above content, please contact us.
The Author
Jean Kallmyr | Lawyer, The IP House Lawyers | t: 0435 799 831 | e: admin@theiphouse.com.au
Key Contact
Claire Darby | Managing Director/Lawyer, The IP House Lawyers | t: 0412 998 951 | e: claire@theiphouse.com.au
Disclaimer
The information and contents of this publication do not constitute any legal or financial advice. This publication is intended only for reference purposes for The IP House Lawyers’ clients and prospective clients.
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