Insights + Resources

September 21, 2021

COVID-19+ | More Evidence of the End For Wet Ink? Victoria Becomes First State to Make Pandemic Reforms Permanent

Introduction

In April, the Victorian government introduced the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (‘Vic Amending Act’), which permanently adopts a number of temporary reforms implemented in response to the COVID-19 pandemic. The Act amends Victorian legislation, including the Electronic Transactions (Victoria) Act 2000 and the Oaths and Affirmations Act 2018 (Vic), to allow for electronic signing and remote witnessing of legal documents.

In addition, Victorian courts and the Victorian Civil and Administrative Tribunal now have the power to determine any civil matter or proceeding entirely on the basis of written submissions, without the need for an oral hearing.

Victoria is the first Australian state to enact permanent legislation to accommodate electronic signatures and witnessing. This is a welcome reform in the post-COVID world, and it reflects a growing trend towards electronic and cloud-based documents.  The days of printing and signing in ‘wet ink’, and physical co-location of the signatory with the witness, may well be numbered in Australia. However it is noteworthy that the Victorian reforms do not cover documents signed by two officers of a company in reliance on the statutory presumptions under section 129(5) of the Corporations Act 2001 (Cth).

What are the changes?

1.   Electronic signing of documents

The Vic Amending Act permits most legal documents to be signed electronically. An electronic signature can include e-signatures or electronically selecting a check-box. For an electronic signature to be valid, all recipients of the document must consent to an electronic signature being used.

Where multiple signatures are required to execute a document, there is no requirement for all signatures to appear on the same copy of the document. Statutory declarations can be electronically signed by both the signatory and the witness.

The amended Electronic Transactions (Victoria) Act also enables deeds to be created, signed, sealed and delivered using electronic means. Mortgages can also be produced in electronic form.

2.   Execution of documents under the Corporations Act

The Vic Amending Act does not extend to company documents that are executed under the Corporations Act 2001 (Cth). Notworthy amongst these are documents signed by two officers under section 127, which are subject to the presumption that the document has been validly signed under section 129(5). These documents are subject to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), which temporarily permits documents to be signed using electronic signatures and executed separately. These measures are due to expire on 1 April 2022, but the Australian government has indicated it will enact permanent changes later this year.

You can read more about these changes here.

3.   Witnessing by audio-visual link 

The Vic Amending Act also permits the remote witnessing of documents using an audio-visual link. For most types of documents, this means that a witness does not need to be physically present to witness a signature. These documents include contracts, agreements, declarations, deeds and wills. There is also no requirement that the remote witness be physically located within Victoria. Examples of how documents can be witnessed include popular video conferencing platforms such as Zoom, Skype and Microsoft Teams.

For remote witnessing to be valid, the following requirements must be satisfied:

(a)   the witness observed the signatory signing the document;

(b)   the witness is reasonably satisfied that they signed the same document as the signatory;

(c)   the signatory and the witness signed the document on the same day; and

(d)   the witness included a statement indicating that the above legal requirements have been met.

4. Remote hearings “in the interests of justice”

Interestingly, the Vic Amending Act also enables Victorian courts to determine civil matters entirely on the basis of written submissions, without the need for an oral hearing. The court must be satisfied that it is “in the interests of justice” to forgo a hearing.

In determining the interests of justice question, the court must consider the following:

(a)   the nature of the matter;

(b)   whether the right to a fair hearing is obstructed by conducting the hearing on the basis of written submissions alone;

(c)    whether the parties have had the opportunity to obtain legal advice; and

(d)   whether the parties consent to the court determining the matter remotely (though a court can still decide to determine a matter on written submissions if the parties do not consent).

The Victorian Civil and Administrative Tribunal also has the power to conduct proceedings without hearing oral submissions unless a party makes a reasonable objection.

What about the other states?

Victoria has led the way in Australia by making permanent changes to its legislation to accept electronic signatures and remote witnessing.

It is yet to be seen whether Australia’s other states and territories will make their temporary pandemic relief measures permanent. New South Wales, Western Australia, South Australia and Queensland have temporarily amended their Electronic Transactions legislation to permit electronic signatures and remote witnessing. Western Australia’s temporary relief lapses on 31 December 2021, and New South Wales’ relief is due to end the following day. South Australia and Queensland’s temporary relief is due to expire at the end of September 2021.

Concluding remarks

The Victorian Act etches in stone a number of forward-thinking reforms that provide greater flexibility in an increasingly digital world. If you require corporate legal advice with respect to digital corporate law reforms in Australia please contact us below.

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