A recurring issue in relation to the ability to use electronic signatures is the approach of the ASIC in accepting documents that are not ‘wet’ signed.
Broadly the position is as follows:
- In general, the Electronic Transactions Act does not apply to documents required to be signed under the Corporations Act, meaning ‘wet’ signatures are usually required.
- That said, the Corporations Act allows a company to maintain an electronic company register (rather than a physical register) provided that a hard copy can be printed and made available for inspection if required.
- ASIC’s electronic lodgement protocols specify that (subject to some exceptions) an agent who lodges a form electronically must retain the hard copy original and produce it to ASIC on request.
- If a company wishes to maintain an electronic register and the electronic storage device is not located at the company’s registered office, it must lodge a form 991/992 (notice of location of books on computer) within 14 days and a form 909 (notification of office at which register is kept) within 7 days.
- In addition, if the location of the register is changed, a form 909 (notification of office at which register is kept) must be lodged within 7 days.
- Given the limitations of the Electronic Transactions Act, somewhat frustratingly, the conservative view is that all company documents should be signed with a ‘wet’ signature and then scanned for the electronic company register, rather than an electronic signature being applied.
Note the changes introduced by the Corporations Amendment (Meetings and Documents) Act 2022 and Treasury Laws Amendment (Modernizing Business Communications and Other Measures) Bill 2023 where documents can now be digitally and wet signed.
** for the trainspotters – hat tip to BritPop trailblazers Oasis and their mid 1990s tune ‘Morning Glory’ for the title of this post, see - https://www.youtube.com/watch?v=Wm54XyLwBAk