Electronic Execution: Signatures (E-Signatures) and Witnessing

Key Word: e-signing, digital signature, electronic execution, documents, remote, e-witnessing, electronic witnessing

 

An Electronic Signature (e-Signature or Digital Signature) is the electronic version of a "wet-ink" (i.e. handwritten) signature. There are various forms of the e-Signature - DocuSign, for example, is a secure and convenient third-party digital platform for e-signing (and a newly integrated feature of the Class platform).

The pandemic has brought about further developments in remote and electronic means for executing deeds and other documents. This article provides an overview on the topic of electronic execution and addresses some of the Frequently Asked Questions regarding such mechanisms for various types of documents. 

 

Overview: Electronic Signatures 

Can Documents be witnessed remotely?

Can Estate Planning Documents be executed electronically? 

Can ATO Declarations (such as Income Tax Returns, Activity Statements etc.) be signed electronically?

Can Financials (ASIC documents) be signed electronically? 

Can SMSF/Pension documents be signed electronically?

 

Overview: Electronic Signatures 

The laws surrounding electronic execution of documents in Australia has been subject to continuous change over the last couple of years, with many "temporary" rules having been in place during the pandemic. Finally, there is greater certainty within this domain, owing to some recent permanent legislative reforms. 

 

In relation to companies executing documents, the Corporations Amendment (Meetings and Documents) Bill 2021 received royal assent on the 22nd of February 2022, amending the Corporations Act 2001 (Cth) to allow companies to execute documents (including SMSF Deeds and Trust Deeds) by electronic means (under section 127). Using a platform such as DocuSign will assist in meeting the relevant requirements such as identification, reliability and consent by the signatories. 

Note: The above is for the purposes of general legal information. It is recommended that you seek your own legal advice, for your specific situation, to ensure that the method of execution is appropriate. Certain State laws may not accept digital signature for specific situations and clarification by the relevant State body should be obtained. 

 

For situations where individuals are executing documents, the governing State laws have differing legalities and requirements. See below:

State Can documents be electronically executed? 

New South Wales

 

Under the Electronic Transactions Act 2000 (NSW), electronic signatures are acceptable on certain types of Documents (e.g. legal agreements), if signed in accordance with section 9.

Note: witnessing requirements

Deeds may also be created in electronic form and electronically signed and attested to in accordance with Part 3 of the Conveyancing Act.

Wills, Enduring Power of Attorneys, Enduring Guardian appointments cannot be electronically signed - see further here

Queensland

Under the Electronic Transactions Act 2001 (Qld), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 14.

Note, further information on witnessing.

Under the Justice and Other Legislation Amendment Act 2021 (Qld), which commenced on 30 April 2022, there is an 'accepted method' by which Deeds may be electronically signed. 

Wills, Enduring Powers of Attorney, general POAs and Advance Health Care Directives cannot be signed electronically - see further here

Victoria

Under the Electronic Transactions Act 2000 (Vic), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 9. Deeds may also be created in electronic form and signed electronically (see s 12A). Wills, POAs and related documents may also be electronically signed and/or witnessed via audio visual link. 

Note, further information on witnessing

Western Australia

Under the Electronic Transactions Act 2011 (WA), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 10.

There are temporary provisions in place for witnessing certain documents via audio-visual means, at least until 31 December 2022 (COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA)). This includes, for example, affidavits and statutory declarations but does not include agreements or Deeds. Note that there are certain requirements that must be met to satisfy the provision. 

Deeds can only be physically created, wet-signed and witnessed in person.

South Australia

Under the Electronic Communications Act 2000 (SA), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 9.

Deeds can only be physically created, wet-signed and witnessed in person. 

Tasmania

Under the Electronic Transactions Act 2000 (TAS), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 7.

Deeds can only be physically created, wet-signed and witnessed in person. 

Australian Capital Territory 

Under the Electronic Transactions Act 2001 (ACT), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 9.

Under the COVID-19 Emergency Response Act 2020 (ACT), witnessing of certain documents (affidavits, wills, health directions etc. but not deeds or agreements) are allowed via audio-visual means during a COVID-19 Emergency. Note that there are certain requirements that must be met to satisfy the provision. 

Deeds can only be physically created, wet-signed and witnessed in person. 

North Territory 

Under the Electronic Transactions Act 2000 (ACT), electronic signatures are acceptable on certain types of Documents (such as agreements), if signed in accordance with section 9.

Deeds can only be physically created, wet-signed and witnessed in person. 

Note: Although there have been certain provisions made for the electronic execution of Deeds, many lawyers will still recommend the more prudent approach to sign deeds on paper with wet-ink signature and in-person witnessing.

Please seek your own legal advice before taking action on any issue dealt with in this article. NowInfinity do not bear any responsibility with the contents of this article. 

 

Can documents be witnessed remotely?

Witnessing requirements differ between states due to varying state legislation. 

 

NSW

QLD

VIC
Relevant Legislation

Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW)

 

Justice and Other Legislation Amendment Act 2021 (QLD) 

 

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic)

Rule

The operation of Part 2B of the Electronic Transactions Act 2000 No 8 (NSW) was extended indefinitely by the above Act. As such, section 14G(1) provides that a "document" (defined in s 14F, as below) may be witnessed via audio-visual link.

 

Section 14F defines "document" as including the following: 

(a) a will,

(b) a power of attorney or an enduring power of attorney,

(c) a deed or agreement,

(d) an enduring guardianship appointment,

(e) an affidavit, including an annexure or exhibit to the affidavit,

(f) a statutory declaration.

This list is intended to be exhaustive. 

 

Wills have additional witnessing requirements as specified in the Succession Act 2006 (NSW) - i.e. the signatory would need to be able to see the face and signing hand of each witness simultaneously. 

The Act amended the Property Law Act 1974 (QLD). Section 46E(2) states that a Deed may be signed 'whether or not in the presence of a witness'. 

The Act amended the Oaths Act 1867 (QLD), allowing for affidavits / declarations to be in electronic form and witnessed via audio-visual link. Note the procedural requirements + additional requirements i.e. for a "special witness".

See below for further information on estate-planning documents. 

The Act amended the Electronic Transactions (Victoria) Act 2000 (VIC). Although it is not required that a Deed be witnessed, the requirements for remote witnessing should be complied with if a party's signature is being witnessed remotely (see s 12). Parties to the Deed should ensure that the Identification, Reliability and Consent requirements are complied with in relation to electronic execution.

The Act amended the Wills Act 1997 (Vic), allowing Wills to be electronically executed only if the "remote execution procedure" (as set out in s 8A) is followed. For example, one of the witnesses must be a "special witness". 

The Act amended the Powers of Attorney Act 2014 (Vic), allowing POAs or other documents to be electronically executed only if the "remote witnessing procedure" (see especially s 5A to 5D) is applied. 

Requirements

Note s 14G of the Electronic Transactions Act 2000 No 8 (NSW) and special requirements per the relevant Act.

Note Parts 6, 7 & 8 and special requirements per the relevant Act. Note Parts 10, 11, 12, 13 and special requirements per the relevant Act.

 

Can Estate Planning Documents be executed electronically? 

Note: It is best practice to execute estate planning documents by traditional methods (i.e. hardcopy with "wet signature" and in-person witnessing) despite the following provisions allowing for electronic execution. Care should be taken due to differences in the law, and associated requirements, between jurisdictions. As the following is for general information purposes only, you should seek your own legal advice for your specific situation, before making any decisions and note that laws are subject to change at any given time. 

  NSW QLD VIC
Legislation 

Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW)

Note that the physical execution requirements in other relevant Acts, such as the Succession Act 2006 No 80 (NSW), have not otherwise changed. 

Justice and Other Legislation Amendment Act 2021 (QLD) 

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic)

Rule

The operation of Part 2B of the Electronic Transactions Act 2000 No 8 (NSW) was extended indefinitely by the above Act.

Wills, Powers of Attorney/Enduring Powers of Attorney, Enduring Guardianship Appointments are included in the term "Document" as per s 14F, noted above, and therefore may be electronically witnessed via audio visual link.

Wills, Enduring Powers of Attorney, Enduring Guardianship appointments cannot be signed electronically. 

 

The Act amended the Oaths Act 1867 (QLD), allowing for affidavits / declarations to be electronically signed so long as the 'accepted method' is applied. Note the witnessing requirements. 

The Act amended the Powers of Attorney Act 1998, allowing General Power of Attorney for a business to be electronically signed so long as the 'accepted method' is applied.  General Powers of Attorney by individuals and Powers of Attorney by individuals given under a Deed must be a physical document (Property Law Act 1974 (QLD) s 46A). However, a document containing a power of attorney given by an individual under a deed may be signed electronically if the document is part of a commercial or other arms-length transaction and the power of attorney is given for the purposes of the said transaction. 

 

Wills, Enduring Powers of Attorney and Advance Health Care Directives cannot be signed electronically.  

Wills, powers of attorney and related documents may be electronically signed and/or witnessed (via audio visual link) - note the additional specific requirements. 

 

Can ATO Declarations (for Income Tax Returns, Activity Statements etc) be signed electronically?

The ATO requires that when lodging documents (such as an income tax returns) on behalf of a client, you must first attain a declaration signed by the client pertaining to:

  1. your authority to lodge the document on the client's behalf; and
  2. 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. Reference may be had to the Electronic Transactions Act 1999 (Cth). 

More information is available here.  

 

Can Financials or ASIC documents be signed electronically? 

As you may know, there are documents (i.e. forms and, if required, statutory reports or attachments) that are required to be lodged with ASIC pursuant to the Corporations Act 2001 (Cth) and the National Consumer Credit Protection Act 2009 (Cth). 

ASIC's Electronic Lodgment Protocol - ELP provides the relevant guidance as to when/how digital signatures are accepted for ASIC forms: 

ASIC has determined the following electronic signatures as acceptable for electronic
transactions :

  1. Level 1 - A Digital Signature based on public/private key encryption or
    AUSkey; or
  2. Level 2 - A Personal Identifier will be accepted
    • i. where it is self selected and accepted by ASIC, if a Lodgement Service provided by ASIC allows for this procedure; or
    • ii. if it is provided by ASIC.

A person using a Digital Signature to sign a Document must use that method of electronic signature to lodge electronically any type of Document with ASIC as set out in Items 1 or 2 of Part A of Schedule 1. 

A Person using a Personal Identifier as an electronic signature on a Document will be limited to using that method to the Documents set out in Part B of Schedule 1.

Refer to the ELP for further information. 

 

Can SMSF/Pension documents be signed electronically?

The documents required to start a pension or carry out certain functions will depend on the specific rules set out in the Trust Deed and the SIS Act. Such documents might 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; pension agreements setting out the terms of the pension etc. 

With regards to "internal" documents (i.e. internal records of the Fund such as trustee minutes (which is a record of a meeting of the trustees) or letter of acceptance etc.) witnesses are generally not required, subject to the document having specific requirements for witnessing due to a requirement of the relevant statute or by the Trust Deed for a trust or Constitution for a company.

Pursuant to the Corporations Amendment (Meetings and Documents) Act 2022 (Cth), documents relating to meetings may be signed electronically (note the specific requirements for the method of signing). Refer to the above for further information regarding electronic execution of other documents. 

Read further here

 

 

 

 

Disclaimer: The information provided above is to be considered as general legal information and 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: Legislations are subject to change at any given time. 

 

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