Commonwealth Numbered Acts Commonwealth Numbered Acts
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 in section 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 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.
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.
2 Paragraph 7 of the Small Business Guide in Part 1.5
After "company's power to sign, discharge and otherwise deal with contracts", insert ", or execute documents,".
3 Paragraph 7 of the Small Business Guide in Part 1.5
Omit:
• for a company with a sole director who is also the sole secretary--that director.
substitute:
• for a company with a sole director who is also the sole secretary--that director; or
• for a company with a sole director and no company secretary--that director.
4 Section 126
Repeal the section, substitute:
126 Agent exercising a company's power to make contracts and execute documents (including deeds)
(1) A company's power to make, vary, ratify or discharge a contract, or execute a document (including a deed), may be exercised by an individual acting with the company's express or implied authority and on behalf of the company.
Note 1: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(3) for dealings in relation to the company.
Note 2: For provisions about technology neutral signing, see Division 1 of Part 1.2AA.
(2) The power may be exercised without using a common seal.
(3) This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract or document (including a deed), other than to the extent that the law is inconsistent with this section.
(4) The individual mentioned in subsection (1) need not be appointed by a deed.
(5) In exercising the company's powers in accordance with subsection (1), the individual may execute a document as a deed if the document is expressed to be executed as a deed.
(6) In exercising the company's powers in accordance with subsection (1), the individual may execute a document as a deed:
(a) without that execution being witnessed; and
(b) regardless of whether the document signed by the individual is in physical form or electronic form.
Note: An effect of paragraph (b) of this subsection is that, despite any common law rule, the document may be executed without the use of paper, parchment or vellum.
(7) Delivery is not necessary if the individual executes a document as a deed in the exercise of the company's powers in accordance with subsection (1).
(8) This section does not limit the ways in which the individual may execute a document (including a deed).
Note: For example, a company's constitution may set out other ways in which a document (including a deed) may be executed.
5 Paragraph 127(1)(c)
Repeal the paragraph, substitute:
(c) for a proprietary company that has a sole director--that director, if:
(i) the director is also the sole company secretary; or
(ii) the company does not have a company secretary.
6 Subsection 127(1) (note)
After "Note", insert "1".
7 At the end of subsection 127(1)
Add:
Note 2: The requirement to sign may be satisfied electronically: see Division 1 of Part 1.2AA (about technology neutral signing).
8 Paragraph 127(2)(c)
Repeal the paragraph, substitute:
(c) for a proprietary company that has a sole director--that director, if:
(i) the director is also the sole company secretary; or
(ii) the company does not have a company secretary.
9 Subsection 127(2A)
Repeal the subsection, substitute:
(2A) For the purposes of subsection (2), the fixing of a common seal to a document is taken to have been witnessed by a person mentioned in paragraph (a), (b) or (c) of that subsection if:
(a) the person observes, by electronic means or by being physically present, the fixing of the seal; and
(b) the person signs the document; and
(c) a method is used to indicate that the person observed the fixing of the seal to the document.
Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA.
10 Subsection 127(3) (note)
Repeal the note, substitute:
Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA.
11 Subsections 127(3A), (3B) and (3C)
Repeal the subsections, substitute:
(3A) A company may execute a document as a deed in accordance with subsection (1):
(a) without that execution being witnessed; and
(b) regardless of whether the document signed by the director or company secretary of the company, as applicable, is in physical form or electronic form.
Note: An effect of paragraph (b) of this subsection is that, despite any common law rule, the document may be executed without the use of paper, parchment or vellum.
(3B) Delivery is not necessary if a company executes a document as a deed in accordance with subsection (1) or (2).
12 At the end of subsection 127(4)
Add:
Note: For example, a company's constitution may set out other ways in which a document (including a deed) may be executed.
13 Subsection 129(5)
Repeal the subsection (not including the heading), substitute:
(5) A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that, if any person who signs the document states next to their signature that:
(a) they are a director of the company--that is the case; or
(b) they are the company secretary of the company--that is the case; or
(c) they are the sole director of the company and that the company does not have a company secretary--that is the case; or
(d) they are the sole director and sole company secretary of the company--that is the case.
Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA.
14 Subsection 129(6)
Repeal the subsection (not including the heading), substitute:
(6) A person may assume that a document has been duly executed by the company if:
(a) the company's common seal appears to have been fixed to the document in accordance with subsection 127(2); and
(b) the fixing of the common seal appears to have been witnessed in accordance with that subsection and subsection 127(2A).
For the purposes of making the assumption, a person may also assume that, if any person who witnesses the fixing of the common seal states next to their signature that:
(c) they are a director of the company--that is the case; or
(d) they are the company secretary of the company--that is the case; or
(e) they are the sole director of the company and that the company does not have a company secretary--that is the case; or
(f) they are the sole director and sole company secretary of the company--that is the case.
Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA.
15 Division 3 of Part 2G.5 (heading)
Omit all the words after " communication ".
16 Paragraph 253R(b)
Omit "meeting; and", substitute "meeting.".
17 Paragraph 253R(c)
Repeal the paragraph.
18 Section 253RD
Repeal the section.
19 In the appropriate position in Chapter 10
Insert:
Part 10.60 -- Application and transitional provisions relating to the Corporations Amendment (Meetings and Documents) Act 2022
In this Part:
"amending Act " means the Corporations Amendment (Meetings and Documents) Act 2022 .
1687A Application--Signing and execution of documents
The amendments made by Schedule 1 to the amending Act apply in relation to the signing or execution of a document (including a deed) on or after the day that Schedule commences.