Electronic execution on Deed
It has been more than a year since first lockdown in Australia on March 2020 and our life has been interrupted by continual change and so does to many businesses. So how the individuals and business can continue their personal contract obligations and any other commercial deals with witness required signature? Luckily, States and Federal law made several changes to accommodate with this challenge, though few of them are expired or about to expired, yet to be reviewed.
At the beginning of the lockdown, the federal government had passed Electronic Transactions Regulation 2017, and Electronic Transactions Amendement(Covid-19 Witnessing of Documents) 2020, the Treasurer’s temporary electronic signing relief determination expired in March 2021. This determination authorised companies signing under section 127(1) of the Corporations Act 2001 (Cth) to sign documents (including deeds) electronically. This has been expired on 31 March 2021 A Treasury Laws Amendments (2021 Measures No. 1) Bill 2021 which include the capacity to engage in virtual meetings, electronic execution and split execution of documents (including deeds), and electronic witnessing of certain documents was proposed, however not passed.
The government has demonstrated its intent to making permanent changes to electronic execution on documents. Victoria has been making permanent changes to establishing of legislation to adopt electronic signing and remote witnessing. On the other hand, New South Wales has temporary relief through its amendments to its Electronic Transactions Act to provide the support on electronic witnessing and execution.
In NSW, Parties may be able to use electronic methods to enter and or witnessing into contracts by referencing video link and citing s14G of Electronic Transaction Act 2020.
Until future judicial guidance and policy becomes available, discretion should be exercised by practitioner and parties to ensure that all requirement to validly form a deed are met.
To ensure whether a document can be executed electronically, a further confirmation is recommended in each state legislation. Using platform that could verify the identity of the signature is recommended.