The lockdowns and restrictions due to the emergence of the COVID-19 pandemic in early 2020 highlighted the rigidness of Australia’s Corporations Act 2001 (Cth) (the Act) in relation to carrying on a company.
In response to the difficulties faced by companies, relief was temporarily introduced to enable companies to utilise technology in order to hold meetings, execute documents and send meeting material. These initial measures ceased in March of 2021.
However, due to the current COVID-19 climate and the outbreak of the Delta strain on 13 August 2021, and to address ongoing challenges to conducting certain corporate activities, the federal Parliament has enacted the Treasury Laws Amendment (2021 Measures No.1) Act 2021.
The incoming legislation reflects the temporary relief that ended in March 2021 and, in addition, provides for:
- Certainty that all documents may be electronically executed by a company under section 127 of the Act, including deeds.
- Remote electronic witnessing of the affixing of a company seal.
- Meetings of the shareholders of a company to be held virtually.
With respect to electronic signing of documents, the requirements of the Act can be satisfied by, among other steps, indicating whether the person signing the document has the intention to sign a copy or counterpart; including the entire contents of the document to be signed; using a digital signing platform such as Docusign, which automatically inserts the person’s signature; and including in the document words to the effect of “electronic signature of [name of person], affixed on [time and date]” below the electronic signature. The reforms also expressly permit split execution of different counterparts, whether physical or electronic.
The new reforms also provide guidance with respect to holding virtual or hybrid (in-person and virtual) meetings, using both physical and electronic attendance to determine whether there is a quorum, identifying the time and location of meetings, and electronic communications relating to meetings.
The sunset date of this relief has been revised and extended, from 16 September 2021 to 31 March 2022, in consideration of recent COVID outbreaks and pandemic-related restrictions. It is also possible that the government will make permanent some of these changes.
To learn more about the reinstatement of these COVID-related relief measures and how they may apply to the administration of your business in Australia, click here to read the alert published by Ally Law member firm Thynne + Macartney.