General / Sep 14, 2020

SMSFs and Digital Signatures

Alicia Thomson
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by Alicia Thomson

Many of us are in some form of lockdown and it can be difficult to get documents physically signed at this time. For those of us in Victoria, New South Wales and Queensland, the Government have temporarily amended the requirements set out in section 127(1) of the Corporations Act to provide clarity that the execution of company documents can be in electronic form and signed electronically by company officers.

These temporary measures expire after:

  • 22/10/2020 for NSW
  • 24/10/2020 for VIC
  • 31/12/2020 for Queensland

There are slight variations between states for electronic execution and witnessing and you need to ensure you correctly follow the requirements for your state. Broadly these requirements include:

  • The document must have been electronically signed in accordance with the state Regulations and correctly endorsed with a statement that the witness has observed the signatory signing by audio-visual link
  • Where deeds are to be signed and witnessed in counterparts, the requirements can be met even if signatures appear in only some of the copies of the documents, provided those copies include the entire contents of the document (i.e. not simply the execution page).
  • All signatory’s must receive a copy of every document where their signature appears.

Of course, it is still recommended that where possible, documents are executed on paper to avoid any potential problems.

The electronic signing of annual minutes, tax returns and financials has been permitted by the Australian Government for a number of years. The ATO does not require the electronic signature look like the signee’s actual signature. As long as the following conditions are met, the signature will be valid if:

  • The method used is reliable and appropriate in the situation
  • The method used can be proven (either by itself or with other evidence) to:
    • Confirm the method used to identify the person
    • Confirm the persons intention regarding the information (cannot accidentally sign)
  • The method is acceptable for the person or entity to whom the signatures are to be given

Please contact us if you need the specific requirements that apply for NSW, Qld and Vic.

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