Digital signatures still not ideal for deeds

Digital signatures SMSF deeds

Making permanent changes to federal laws to allow electronically signed digital trust deeds will only assist SMSFs when all the states implement similar changes.

A permanent change to laws allowing the use of digital signatures when signing company documents, including corporate SMSF trust deeds, should not be considered a reason to stop using paper documents and wet-ink signatures, an SMSF legal expert has stated.

DBA Lawyers special counsel Bryce Figot said the federal government’s consideration of making permanent changes to the Corporations Act 2001 in relation to virtual meetings and electronic document execution should not be seen as a reason to abandon current practices around physical documentation if the changes are introduced.

“This would not be bad news, but in a strategic sense I would be reluctant to execute deeds electronically,” Figot said, adding different laws regarding the use of digital signatures would still exist at the state level.

“The federal government can’t make a ruling for all the states and while having flexibility is good, no one will get any points for being an early adopter.

“This change was only designed to be temporary due to the coronavirus and has yet to be tested by the courts,” he said, referring to a temporary determination made on 5 May by Treasurer Josh Frydenberg as part of the government’s response to COVID-19.

The determination allowed companies to convene meetings prescribed under the Corporations Act online instead of face to face and also guaranteed that when a company officer signed a document electronically, that document was validly executed.

The changes also covered SMSFs with a corporate trustee and were extended in August to the end of March 2021.

Figot said the COVID-19 lockdown across Australia demonstrated the differences in the way the states operated and while a change to the act may provide some motivation to harmonise laws, this change was likely to be a low priority.

“The first condition I would need in place to use digital signatures on a primary basis is that every jurisdiction allows for their usage on the same basis, and at present it can be difficult enough to decide in which jurisdiction to execute a deed,” he said.

“I would also like to know how records will be kept and managed and we don’t have a solution for that yet.”

The government is currently seeking stakeholder input on making the temporary changes announced in May a permanent part of the act and public consultation on exposure draft legislation and explanatory material, available on the Treasury website, will close on 30 October.

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