Corporations Amendment (Meetings and Documents) Act 2022 (9 of 2022)

Schedule 1   Signing and executing documents

Corporations Act 2001

1   After Part 1.2

Insert:

Part 1.2AA - Signing documents

Division 1 - Technology neutral signing

110 When this Division applies

Signing of documents by or on behalf of a company

(1) This Division applies to a document (including a deed) to be signed by a person:

(a) exercising the powers of a company under section 126 (making of contracts and execution of documents by an agent); or

(b) under section 127 (execution of documents by a company).

Note 1: A document is any record of information: see the definition of document insection 9.

Note 2: This Division provides that a person may sign a document in physical form or electronic form: see subsection 110A(1).

Signing of documents relating to meetings etc.

(2) This Division applies to a document (including a deed) required or permitted to be signed by a person under this Act that relates to:

(a) a meeting of the members of a company or registered scheme (including a meeting of a class of members); or

(b) a resolution to be considered by the directors or members of a company (including a resolution to be considered by a class of members of a company) without a meeting; or

(c) a meeting of the directors of a company (including a meeting of a committee of directors).

Signing of prescribed documents

(3) This Division applies to a document (including a deed) required or permitted to be signed by a person under this Act if the document is, or is in a class of documents that is, prescribed by regulations made for the purposes of this subsection.

Other ways of signing documents not limited

(4) This Division does not limit the ways in which a person may sign a document (including a deed).

Note: For example, a company's constitution may set out ways in which a document (including a deed) may be executed or signed in addition to the ways a document (including a deed) may be executed in accordance with sections 126 and 127 or signed in accordance with this Division.

110A Technology neutral signing

(1) A person may sign a document to which this Division applies:

(a) by signing a physical form of the document by hand; or

(b) by signing an electronic form of the document using electronic means;

if the method of signing satisfies subsection (2).

Note: A document (including a deed) may be executed by or on behalf of a company without the use of paper, parchment or vellum: see subsections 126(6) and 127(3A).

(2) A method of signing satisfies this subsection if:

(a) the method identifies the person and indicates the person's intention in respect of the information recorded in the document; and

(b) the method was either:

(i) as reliable as appropriate for the purpose for which the information was recorded, in light of all the circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.

What information the intention must cover

(3) For the purposes of paragraph (2)(a), the person is not required to indicate an intention in relation to:

(a) any material identifying another person signing the document or indicating another person's intention in respect of the information recorded; or

(b) the signature of another person signing the document; or

(c) if a common seal is fixed to the document - the seal; or

(d) any immaterial information in a form of the document generated for the purposes of signing and which arises in the normal course of communication, storage or display.

Note: This subsection allows minor differences that arise from the way a document is signed to be disregarded. For example, a person can sign to witness the fixing of a common seal to a document, and it is not necessary for the signed document to include the common seal (as long as a method is used to indicate that the person observed the fixing of the seal, as required by paragraph 127(2A)(c)).

Avoidance of doubt

(4) To avoid doubt, this section does not require:

(a) a person to sign the same form of the document as another person; or

(b) a person to sign the same page of the document as another person; or

(c) a person to use the same method to sign the document as another person; or

(d) all the information recorded in the document to be included in the form of the document signed by a person as mentioned in paragraph (1)(a) or (b).

Note: For example, a company may execute a document by one director signing a physical form of the document by hand, and another director signing an electronic form of the document by electronic means.

Persons signing in different capacities

(5) For the purposes of this section, a person who is to sign a document in more than one capacity:

(a) is treated as a different person in each such capacity they sign the document; and

(b) may sign the document in some or all of those capacities by signing the document once, if the document:

(i) requires or permits the person to do so; and

(ii) states the capacities in which the person is signing the document.

Example 1: If a signature block in a document requires or permits a person to sign once as the sole director and sole company secretary of a company, the person may sign the document as the sole director and sole company secretary by signing that signature block.

Example 2: If a signature block in a document requires or permits a person to sign once on behalf of 2 companies as an agent for both those companies, the person may sign the document as an agent for both those companies by signing that signature block.

Example 3: A person who is to sign a document in their capacity as the director of one company and their capacity as the company secretary of another company must sign the document twice if:

(a) one signature block in the document requires or permits the person to sign as the director of the first company; and

(b) another signature block in the document requires or permits the person to sign as the company secretary of the second company.

110B Lodgement of documents

If:

(a) under this Act, the signature of a person is required or permitted on a document; and

(b) the person signs the document in accordance with section 110A; and

(c) the person or another person submits the document for lodgement;

ASIC or the Registrar (as the case requires) must not refuse to receive or register the document on the basis that the document has not been signed.