Electronic Execution: Signatures (E-Signatures) and Remote Witnessing – NowInfinity

An electronic signature (e-signature or digital signature) is the electronic version of a 'wet' signature (i.e. handwritten signature on a physical hard copy document). There are various ways to electronically sign documents. DocuSign, for example, is a secure and convenient third-party platform and an integrated feature of the Class platform.

The pandemic brought about temporary legislative changes relating to e-signing and remote witnessing, and many of these changes have been made permanent. However, it is important to understand when a wet signature is required.

Overview

Generally, agreements and contracts can be signed electronically under the Electronic Transactions
Act (Cth), which has been adopted in a similar form by all states and territories.

Deeds, wills, powers of attorney and statutory declarations are more formal documents and the
electronic signing and witnessing requirements differ between states and territories.

This article will cover:

Practical Tips
Documents signed by companies
Virtual company meetings and electronic minutes/resolutions
Deeds signed by individuals
Wills, powers of attorney and statutory declarations
ATO Declarations, ASIC documents, pension documents and other SMSF documents

Practical Tips

How to e-sign a document

There is no one prescribed way to electronically sign documents. You should ensure that the method
used meets the below standards:

Identification requirement* – the method identifies the person and indicates the person’s
intention in respect of the information recorded in the document; and
Reliability requirement* – the method used was either as reliable as appropriate for the
purpose for which the information was recorded, or proven in fact to have fulfilled the functions
described in the identification requirement.

(*see section 10 of the Electronic Transactions Act 1999 (Cth) which is essentially replicated in state
and territory Electronic Transactions Acts and in the Corporations Act 2001).

In practice, using a secure e-signing platform such as DocuSign should satisfy the above criteria.

Remote Witnessing

If witnessing remotely (rather than in-person witnessing), ensure that this is permitted by the laws governing the document and that any remote witnessing procedures are carefully followed. Audiovisual link will always be required, and the witness must see the signatory signing the document.

If electronic signatures are used, our view is that the remote witness must see (in real time) both the signing party operate the computer and the electronic signature being inserted. This could be achieved via screen sharing concurrently with signing party’s camera switched on, so that the witness can see both the electronic signature placed on the document and the signing party operate the computer to
insert their e-signature.

We also suggest recording any remote witnessing via audio-visual link and saving this recording together with the electronic documents.

What are the risks?

Before deciding to e-sign or have a remote witness, consider the value of the document and the risks associated with electronically signing the document. For example:

In our experience, third parties (such as lenders) often have their own internal policies and may not accept an electronically signed deed, even if e-signing is permitted under the relevant state or territory laws. If a lender requires ratification of an electronically signed deed, there may be legal costs involved.
Issues may arise if any applicable electronic signing or remote witnessing procedures are not followed correctly. In the recent case of Re Curtis [2022] VSC 621, the Supreme Court of Victoria considered whether a will signed and witnessed electronically in Victoria complied with the remote execution procedure for wills in Victoria. The Court was not satisfied that the deceased’s will was executed correctly, as the witnesses did not ‘clearly see’ the testator’s hands applying his electronic signature to his will. See below (emphasis added):

“116 While Ms Bell and Ms Hocking would have seen the deceased’s electronic signature on the DocuSign document when they themselves accessed and signed the will after the deceased had signed it, s 8A(4)(a) requires that the testator ‘sign the will with all witnesses clearly seeing that signature being made’. In the context of an electronic signature, ‘clearly seeing’ the signature ‘being made’ requires the witnesses to observe the testator operating the computer or device to apply the signature, and the signature appearing on the electronic document as they do so. This may be achieved by the testator sharing their screen whilst they appear on the audiovisual link. Alternatively, in circumstances like the present, it may require adjusting the angle of the camera on the device from which the audio-visual link is being operated to allow the witnesses to see the testator, their actions and the document. It is only by seeing the testator operating the computer or device to apply the signature and the signature appearing on the electronic document that the witnesses can be truly satisfied that it is the testator who has applied the electronic signature.”

You should ensure that any legal requirements for signing documents (for example, witnessing in real time) are followed, in addition to any e-signing or remote witnessing requirements.

Documents signed by Companies

In all states and territories, companies can sign documents (including deeds) in electronic form by wet signature or electronic signature in accordance with section 126 or 127 of the Corporations Act 2001:

(a) by an agent exercising a company’s power to make contracts and execute documents (including deeds); or

(b) by two directors, or a director and a company secretary, or sole director/secretary, or a sole director if the company does not have a company secretary.

Virtual Company Meetings and Electronic Minutes/Resolutions

Company meetings can be conducted virtually and electronic resolutions are permitted under the Corporations Act.

Virtual Directors meetings

A directors’ meeting may be called or held using any technology consented to by all the directors (see
section 248D of the Corporations Act).

Virtual Members’ meetings

A company can hold a meeting of its members via virtual technology (and not at a physical venue), but only if this is expressly required or permitted by the company’s constitution. Otherwise, a meeting can be held at one or more physical venues with or without using virtual meeting technology (see sections 249R and 249RA of the Corporations Act).

A company must give its members reasonable opportunity to participate in members’ meetings (see the requirements in section 249S of the Corporations Act).

Electronic resolutions

Resolutions and minutes of meetings can be signed in electronic form using an electronic signature (see sections 110(2) and 110A(1)(b) of the Corporations Act).

Legislative Reform

All documents required to be signed under the Corporations Act 2001 will soon be permitted to be signed electronically (see Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2023).

Deeds signed by Individuals

State	Can deeds be electronically executed?	Is a witness required?
NSW	Deeds may be in electronic form and electronically signed and attested. (see section 38A of the Conveyancing Act 1919 (NSW)) Remote witnessing requirements If witnessing remotely, the witness must: observe the person signing the document in real time, attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and endorse the document, or a copy of the document, with a statement specifying the method used to witness the signature of the signatory, and that the document was witnessed in accordance with this section. (see section 14G of the Electronic Transactions Act 2000). Tips for remote witnessing (from Law Society of NSW): The camera angle may need to be adjusted to allow the witness to simultaneously see not just the face of the signatory, but also the signing hand of the signatory and the document as the signing occurs. If the witness is signing a counterpart, they should check that the signatory is signing the same document (for instance, the witness may ask the signatory to read out the document, or ask the signatory to hold up the document to the camera). The witness can sign either: A counterpart of the document as soon as practicable after they witnessed the signing of the document; or A scanned copy signed by the signatory.	Deeds must be witnessed in NSW and can be witnessed remotely (see remote witnessing requirements).
VIC	Deeds can be in electronic form and ‘signed, sealed and delivered’ by electronic communication (see section 12A of the Electronic Transactions (Victoria) Act 2000).	Deeds do not need to be witnessed in VIC.
QLD	Deeds may be in the form of an electronic document and may be electronically signed (see section 46D of the Property Law Act 1974 (WA))	Deeds do not need to be witnessed in QLD.
WA, NT, SA, ACT and TAS	Deeds can only be signed with a wet signature, electronic signing of deeds is not permitted.	Deeds must be witnessed in person in WA, NT, SA, ACT and TAS.

Wills, Powers of Attorney and Statutory Declarations

State	Is electronic signing permitted?	Witness requirements
NSW	Wills, powers of attorney and statutory declarations cannot be electronically signed in NSW. However, the wet signing of these documents can be witnessed remotely via audio-visual link (see sections 14F and 14G of the Electronic Transactions Act 2000).	These documents can be witnessed remotely in NSW - see remote witnessing requirements above for deeds in NSW.
VIC	Wills can be signed electronically if the remote execution procedure is used (see section 7(6) Wills Act 1997). The remote execution procedure for wills require a ‘special witness’, a statement in the will that it was witnessed via audio visual link, among other requirements. Refer to Re Curtis [2022] VSC 621 if you are considering having a will electronically signed and witnessed remotely in Victoria.	Wills can be witnessed remotely if the remote execution procedure is followed.
	Non-enduring power of attorney and enduring power of attorney documents can be electronically signed if the remote witnessing procedure is followed. The remote execution procedure requires a ‘special witness’, a statement in the power of attorney that it was witnessed via audio visual link in accordance with the remote witnessing procedure, among other things.	Power of attorney documents can be witnessed remotely if the remote witnessing procedure is followed.
	A statutory declaration can be in electronic form and signed and witnessed remotely with electronic signatures (see section 29A of the Oaths and Affirmations Act 2018). If electronically signed and/or remotely witnessed: the statutory declaration witness may use a scanned or electronic copy of the statutory declaration. the statutory declaration must include a statement specifying the manner of that making or witnessing; and whether a scanned or electronic copy of the statutory declaration was used. (see section 30A of the Oaths and Affirmations Act 2018).	Statutory Declarations can be in electronic form or witnessed via audio-visual link if section 30A is complied with (in addition to other witnessing requirements that apply to both in person and remote witnessing – e.g. see section 30).
QLD	Wills cannot be signed electronically in QLD.	Wills cannot be remotely witnessed in QLD.
	Enduring Power of Attorney documents cannot be signed electronically in QLD. A General Power of Attorney for a business can be in the form of an electronic document and may be electronically signed (see section 24F of the Powers of Attorney Act 1998).	Powers of Attorney cannot be remotely witnessed in QLD.
	Statutory Declarations can be in the form of an electronic document and e-signed: if the signing party electronically signs the declaration in the physical presence of a witness; or if the signing party and witness are present via audio visual link. The Statutory Declaration must include a statement, as applicable: that the declaration was made in the form of an electronic document; that the declaration was electronically signed and witnessed under part 6A of the Oaths Act 1867; and other statements that apply to both wet and esigning/remote witnessing (see section 13C Oaths Act 1867).	Statutory Declarations can be witnessed via audiovisual link (see section 31J Oaths Act 1867) If witnessed via audio-visual link, the witness must be a ‘special witness’ (see section 31S of the Oaths Act 1867) The witness must be satisfied, by the sounds and images made by the audio visual link, that the signatory (or substitute signatory) is signing the document (see the requirements in section 31T Oaths Act 1867)
SA, TAS, WA, ACT and NT	Wills, powers of attorney and statutory declarations cannot be signed electronically.	Wills, powers of attorney and statutory declarations cannot be witnessed remotely.

Other Documents

Type of document	Can it be signed electronically
ATO Declarations (Income Tax Returns, Activity Statements etc)	The ATO requires that when lodging documents (such as an income tax return) on behalf of a client, you must first attain a declaration signed by the client pertaining to: your authority to lodge the document on the client’s behalf; and the truthfulness and correctness of the information within the form. The ATO is accepting of electronic signatures in satisfying this requirement and also acknowledges declarations that have been sent via email or fax. In fact, if your client is sending their declaration to you from their email address, they do not need to include a scanned version of their signature – the mere sending and subsequent acceptance (by you) of the information via email can be used as the basis for lodging the approved form. However, certain requirements do need to be met when providing an electronic declaration (e.g. your express or implied consent to your client’s signature being sent to you electronically). For more information, see Client declarations and lodgement online
ASIC Documents	ASIC’s Electronic Lodgement Protocol (ELP) sets out the terms and conditions for lodging electronic documents with ASIC. Methods of e-signing accepted by ASIC ASIC has determined the following electronic signatures as acceptable for electronic transactions: A Digital Signature based on public/private key encryption or AUSkey; or A Personal Identifier: where it is self selected and accepted by ASIC, if a Lodgement Service provided by ASIC allows for this procedure; or if it is provided by ASIC. See section 5 and Schedule 2 – Certification Authorities and Approved Forms of Digital Signatures (pages 3 and 27) Documents that can be lodged electronically Only the documents listed in Parts A and B of Schedule 1 may be lodged electronically with ASIC under the ELP. See the table at Schedule 1 – Documents (page 21). Legislative Reform Changes will soon be introduced to the Corporations Act 2001 to clarify that ASIC or the Registrar cannot refuse to receive or register a document on the sole basis that it was signed or executed electronically. However, ASIC or the Registrar can refuse to receive or register documents for other reasons, including where the document does not meet the prescribed lodgement requirements (such as the requirements in Chapter 2P of the Corporations Act 2001). (see Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2023.
Pension documents and other SMSF documents	Pension documents: this will depend on the specific rules in the Fund’s Trust Deed. These documents may include requests/applications from the member (i.e., commencement letter, application to commute), a minute/resolution from the trustee under which it approves the member’s request, and pension agreements setting out the terms of the pension. ‘Internal’ documents (i.e. records of the fund such as letters of acceptance etc): this will also depend on the specific requirements in the Fund’s Trust Deed. Binding Death Benefit Nominations and other nominations: This will also depend on the specific requirements in the Fund’s Trust Deed. It is noted that the High Court ruled in Hill v Zuda that regulation 6.17A of the SIS Regulations do not apply to BDBNs in Self-Managed Superannuation Funds unless the Trust Deed specifically imposes these requirements.

Disclaimer: The information provided above is general information only. NowInfinity bears no responsibility in relation to the above. Legal advice should be sought prior to applying the relevant provisions to your specific circumstances.

Note: The above reflects the position as at 8 September 2023.