From 22 March 2021, the previous uncertainties about the ability of a corporation to sign electronically return. These uncertainties were:

• Doubt about whether documents could be executed electronically under s 127 of the Corporations Act. There is some judicial support for the meaning of ‘sign’ in s 127 to include electronic signing where the director personally authenticates the document with their signature, but there is no universal acceptance of this position.
• Doubt about the validity of 'split execution', where one director signs one counterpart, and another director or secretary signs another counterpart. After the lapsing of the Determination, the validity of this practice for documents other than deeds governed by Queensland law is now in doubt.
• For deeds signed by companies, there were varying views about the breadth of s 127(3) and the application of State Electronic Transactions Acts. For deeds governed by Queensland law, the Justice Legislation (COVID-19 Emergency Response–Documents and Oaths) Regulation 2020 will continue to apply allowing electronic execution of deeds by 2 directors, or a director and secretary, power of attorney or agent. 

In Queensland, solicitors who receive a document signed electronically by directors of a corporation, where the Justice Legislation (COVID-19 Emergency Response–Documents and Oaths) Regulation 2020 does not apply will need to consider, first if electronic execution is a valid method of signing and secondly revert to the previous practice of confirming the authority of the signatories to sign the contract on behalf of the corporation using an electronic signature. The assumption of authority in s 129(5) of the Corporations Act will not apply unless the signing is in accordance with s 127 of the Corporations Act. 

Despite the lapsing of Commonwealth provisions, the relief measure enacted in Queensland (Justice Legislation (COVID-19 Emergency Response–Documents and Oaths) Regulation 2020) for the execution of deeds, powers of attorney and oaths remains effective until 30 April 2021, with a proposal to extend to 30 September 2021 (COVID-19 Emergency Response and Other Legislation Amendment Bill 2021). This means a deed governed by Queensland law may be validly executed by a corporation in electronic form in the following ways:

(a) 2 directors of the corporation; or

(b) 1 director and 1 secretary of the corporation; or

(c) for a corporation that has only 1 director who is also the only secretary of the corporation—that director; or

(d) a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal.

In all cases where the deed is signed electronically pursuant to this provision, confirmation of identify and authority of the signatories to sign the contract on behalf of the corporation using an electronic signature will be a prudent step. The only exception will be if a power of attorney is used, in which case the inquiries may be limited to verifying the identity of the signer as the attorney as opposed to their authority.

Provision for electronic execution of deeds by individuals is also in effect in New South Wales and individuals and corporations in Victoria.
 

Commentary in Conveyancing Manual Qld related to electronic signing by corporations will be updated to reflect this development.

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