COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

 *Last updated 1 April 2021*

Very few documents are legally required to have a ‘wet’ signature. That is a signature applied using pen and ink. 

Most business contracts you enter into don’t require a ‘wet’ signature and may not require a signature at all to be binding. Contracts are not formalised by a signature; a signature simply serves as good evidence that a person agreed to the contents of a contract. Some examples of documents that would normally need a wet signature are: 

  • Wills
  • powers of attorney
  • deeds
  • documents that need to be witnessed, verified or authenticated in some way
  • some court documents
  • some documents for lodgement with land titles offices
  • some governance documents, such as minutes of meetings of directors
  • some regulatory documents, depending on the regulator 

Since the introduction of electronic transactions legislation by the Australian federal government and most Australian state and territory governments around the year 2000, it has been possible to sign a lot of agreements electronically

Rules do apply. 

Broadly speaking, the requirements for using an electronic signature are:

  • you must be able to identify the person signing, either directly or through additional evidence
  • the person signing must agree to be bound by their signature
  • the method for identifying the signatory and his or her intention in the circumstances is reliable
  • all the parties agree to accept e-signatures, which agreement can be inferred by conduct 

Provided that all parties agree, a typewritten name can be used as a signature.  Consider that you may be one of many people in business who have a formal typewritten signature as a standard footer to your emails.

Case study

In Stellard’s case (Stellard Pty Ltd & anor v North Queensland Fuel Pty Ltd [2015] QSC 119) a signature was required because the transaction involved property. There requirement for a signature was in s.59 of the Queensland Property Law Act, which says “No action may be brought upon any contract for the sale… of land… unless the contract… or some memorandum or note of the contract, is in writing, and signed by the party to be charged…”

All exchanges relied upon were either via email, or by conversation. Stellard argued that they were entitled to rely on NQF’s acceptance of their offer to purchase, contained in an email, by virtue of the Queensland electronic transactions legislation. The Court decided that:

 

  • the parties agreed to accept electronic signatures through their conduct, being negotiation via email including stating the offer in the body of the email and receiving the acceptance in the body of an email
  • the identity of the person sending the email acceptance was found through evidence of conversations held earlier than the date of the email, and an admission of the sender that they were the person sending the email

What does that mean for you? 

Be aware of what you are negotiating and agreeing to by email. 

CHANGES TO 31 MARCH 2021

Federal

On 23 March 2021 ASIC announced a temporary ‘no action’ position on the following activities:

  • the holding of meetings using appropriate technology;•
  • electronic dispatch of notices of meeting including supplementary notices; and•
  • public companies holding AGMs within an additional 2 months on the extended term.

There is no allowance or exemption for signing documents electronically. Wet signatures are still required for minutes of meeting, although scanned copies of documents can be kept.

ACT

On 20 February 2021 The ACT Parliament extended the timeframe of relevant COVID legislation.

NSW

On 25 March 2021 NSW Parliament extended COVID timeframes under a variety of legislation with the COVID-19 Recovery Act 2021, to 31 December 2021, but excluded the Electronic Transactions legislation.

QLD

On 11 March 2021 a bill was tabled before QLD Parliament to extend the expiry date of various legislation impacted by COVID measures, to 30 September 2021, which is likely to be passed.

SA

Changes were made by SA Parliament in February 2021.

VIC

On 23 March 2021 Victoria led the way for all Australian jurisdictions by permanently adopting changes to the Electronic Transactions (Victoria) Act 2000, enabling witnessing of signatures by audio visual link, and the electronic creation and signing of Deeds and mortgages.

No other changes were tabled before parliaments around the country before 31 March 2021.

Signing documents during COVID-19 restrictions

After COVID-19 was declared a pandemic and Australian federal and state governments started enacting temporary legislation for greater flexibility, laws were introduced to change the way certain documents, which usually required a wet signature and a witness, could be signed using electronic means.

Changes are not consistent around Australia. Each state or territory has slightly different requirements and not every state or territory enacted relevant laws, so you do need to be conscious of the location of the person signing, and the applicable rules in that place, and when those rules will expire:

 

 

Legislation

Start Date

Expiry Date

Federal

Corporations (Coronavirus Economic Response) Determination (No. 3) 2020

5 May 2020

EXPIRED*

ACT

COVID-19 Emergency Response Act 2020

14 May 2020

12* months after COVID emergency ends

NSW

Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020

25 Mar 2020

 

EXPIRED*

NT

N/A

 

 

QLD

Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020

15 May 2020

30 Sep* 2021

SA

COVID-19 Emergency Response (Section 16) Regulations 2020

20 Apr 2020

later of 31 May 2021 or 28 days after COVID emergency ends

Tas

Notice under Section 17 of COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020

3 Apr 2020

EXPIRED 

Vic

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 amending Electronic Transactions Act

 

 

PERMANENT CHANGE

WA

COVID-19 Response and Economic Recovery Omnibus Act 2020

12 Sept 2020

31 Dec 2021

*The above table mentions only the first applicable legislation, which is likely to have been amended by further legislation over time, resulting the expiry dates listed. Expiry dates are subject to change.

Signing of corporate documents under australian federal law during covid

Federal law covers signing for and on behalf of companies, as well as the holding of shareholder or member meetings electronically. The legislation was due to expire on 5 November 2020 but was extended.

The Corporations Act is specifically excluded from electronic transactions legislation, so you will normally require a wet signature of directors or secretaries who are signing a document in accordance with s.127 of that Act. The document can still be shared electronically, it just cannot be signed electronically.

Pursuant to s.127 you would usually require two directors, a company secretary and a director or a sole director and secretary to sign on behalf of a company. You usually require both people (if two are signing) to sign the same document on behalf of the company.

The temporary legislation allows for electronic application of signatures when signing for a company, which can occur on separate documents, provided that each document contains the entire contents of the document, and a method was applied to identify each person signing and their intent to be bound, and that method was reliable.

A document signed on behalf of a company another way can still be binding. Section 127 does not limit the ways in which a company can sign a document. 

Permanent changes to the Corporations Act have now been tabled before parliament for consideration in 2021 which would allow for electronic signatures and virtual meetings.

Nothing in the legislation appears to enable the electronic signing of minutes of meetings, whether of a board or shareholders.

Signing documents in the Australian Capital Territory (ACT) or New South Wales (NSW) during covid 

Measures were introduced to allow for the witnessing and attestation of documents including affidavits, Wills, powers of attorney and health directives. Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it
  • the witness is reasonably satisfied that the document signed and the document witnessed are the same
  • the witness includes a statement on the document about how the document was witnessed in accordance with the ACT legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Signing documents in the Northern Territory (NT) during covid

Although the NT does have electronic transactions legislation, no specific amendments have been made to that legislation as a result of COVID. As a result, any documents that needed a wet signature in the NT before COVID restrictions started, still do.

Signing documents in Queensland (Qld) during covid

Queensland appears to have adopted the most complicated provisions. In Queensland, the witnessing a Will, powers of attorney, affidavit or statutory declaration can be completed by audio visual link, provided that:

  • the person witnessing is an Australian legal practitioner, justice of the peace (JP) or commissioner of declarations, notary public or other person mentioned in the regulations
  • the witness completes a certificate that is kept with the document
  • the witness sees the person sign in real time
  • the person signing signs each page of the document
  • the witness is satisfied that the signing person is making the document freely and voluntarily

Confirmation of witnessing, in addition to the required certificate, can be done by signing each page of a counterpart or scanned copy of the document signed by the original signatory, as soon as possible.

There are additional variations for affidavits and statutory declarations.

Documents other than Wills and enduring powers of attorney can also be signed electronically provided the method used to identify the signatory and their intend to be bound is reliable, in the circumstances.

Deeds can be signed electronically without a witness provided that the document is clearly identified as a deed. This applies to both individuals and companies, and for companies, where a second director or secretary is to sign, they can sign a counterpart.

Signing documents in South Australia (SA) during covid

While South Australia made amendments to make meetings by electronic means easier, rather than expanding the ability to apply electronic signatures to documents they simply expanded the categories of professional people documents could be sworn or attested in front of.

Witnessing documents by audio visual means is expressly excluded.

Some alterations were made for property related transactions in June 2020.

Signing documents in Tasmania (TAS) during COVID

Rather than specifying document, in Tasmania the legislation is focused on actions taken. So where a document requires a physical actions such as the making, taking, receiving, swearing, signing or witnessing of a document, those actions can be completed electronically, or by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness attests to the signing by signing the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Tasmanian legislation.

Signing documents in Victoria (VIC) during COVID

Victoria expanded the categories of people who could take oaths and affidavits first, before then introducing broader measures for the use of electronic signatures. Timing is very important in Victoria. A witness must apply their signature on the same day as the person signing the document.

Witnessing is permitted by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it on the same day
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Victorian regulation.

There are specific rules around attachments, counterparts and copies of documents that must be met to comply with Victorian requirements.

Under the Victorian Oaths Act a person can electronically write anything on a document, sign, initial or date it electronically under the COVID rules. There is also provision for Wills to be signed and witnessed by audio visual link, provided that the actions result in one document with all signatures and statements relevant to any signing by electronic means, and that all actions are taken on the same day.

Signing documents in Western Australia (WA) during COVID

Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness is satisfied that the document signed and the document witnessed are the same
  • the witness signs the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with s.23 of the WA legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Want more information?

Where documents do need to be signed in a particular way, or witnessed, to be enforceable, then it’s important you understand the requirements that apply in the place of the person signing if you want to be able to rely on those documents in the future. 

If you need help with deeds, agreements, Wills or powers of attorney and worry about what COVID rules apply, contact us. 

Event Release Forms: Everything Yours Should Include

Event Release Forms: Everything Yours Should Include

Event Release Forms: Everything Yours Should Include

event release forms: everything yours should include

As a small business owner, do you run events, co-host events, sponsor events or plan to run events to help propel your business forward faster?

The advantages of holding events are obvious. Not only will you be meeting new people and adding new prospects to your client list, but it is also a good opportunity for you to gain valuable insights and understand the market better. Events can be face-to-face or online or a combination of both.

Events come in many shapes and sizes – meetings, conferences, online classes, training sessions, networking sessions, product launches, fundraising events and many more. No matter what type of event it is, one thing that you should always consider having is an Event Release Form.

Essentially, an Event Release Form is a contract or agreement for participation in an event. Like all other contracts, its purpose is to protect your business interests and limit your liabilities, but also to protect the interests of your participants. Just like running a business, you do not want to expose yourself or your valuable clients to any unnecessary risks when running an event.

Hand-shake contracts are great in theory. If you have ever been in a situation where you believed everyone was on the same page and later found out that there was a miscommunication, then you probably understand the importance of having a written contract.

Setting the rules for participation just before the start of an event can remind everyone of their expectations and obligations.

WHAT is the purpose of an event release form?

The event release form is to:

  • introduce the purpose of the event, eg. education only
  • remind participants of what is excluded, eg. not providing legal advice
  • require participants to take responsibility for their own behaviour, mental and physical health during the event
  • make parents or guardians aware of their responsibility for any child they bring
  • alert participants to the fact that other products or services might be promoted for sale
  • refer to privacy obligations
  • cover your rules for recording of the event by you and your participants
  • limit your liability

when do you provide an event release form?

For a face-to-face event, you want participants to read and sign your form before they enter the event venue. 

For an online event, you want participants to check a box agreeing to your release before they can access the event online.

how long should you keep an event release form?

You should keep a copy of your event release forms for as long as your business operations suggest you may have a risk to the business arising from that event.  Generally speaking, financial claims are barred 6 years after becoming aware of a right to claim and personal injury claims are barred 3 years after becoming aware of a right to claim.  Many businesses keep documents for 7 years for accounting reporting purposes.

can you use an event release form for multiple events?

You should require participants to complete a new form each time they attend an event, even if the one participant attends a variety of events you have on offer. A multi-day event, where it is clearly still the one event, will not need a daily release form, or a release form for each session, just a release for the event itself.

do you need separate event release forms for children?

It is easier to create a release form that have room to name one or more children who have come with their parent or guardian, and which binds the parent or guardian in respect of each child. You don’t need to have separate forms.

what if a participant does not want to be filmed?

If a participant doesn’t want to be included in photos or videos, then consider allocating a part of the room that is not going to be filmed or photographed and ask that they sit in that area, explaining that seating elsewhere will be caught on film. For online participants, you can ask that they keep video turned off to avoid being captured or use technology to exclude them.

Postproduction editing tends to be complicated and expensive. Practical measures before filming make permissions easier to manage.

what if we want to restrict participants from recording the event?

Your terms and conditions before registering for the event should specify that recording will be prohibited, then the Event Release Form should also state that recording is prohibited and participants may be removed if caught, and an announcement should also be made at the beginning of the event. As an alternative, some event organisers are now arranging specific digital interactive activities during the event to encourage participants to share it live on social media or ask questions during the event. 

is the event release form the same as event terms and conditions?

Your Event Release Form is NOT the same as the terms and conditions your participant signed up to before they purchased or registered for your event. Event terms and conditions are more comprehensive and need to be provided before the point of purchase, and agreed to by the participant, to be binding.

Event terms and conditions will cover in detail the things like:

1. What are you offering, and what are you not providing? 

Introduce what the event is about and what services you will be providing. This is to help set clear expectations for participants and prevent any disputes from arising as a result of ‘unmet’ expectations.

If you are running a physical event, will you be providing venue or catering? If catering, is it limited to tea and coffee or a full buffet lunch? If you are running an online event, will you be providing preparatory or post event audio or visual materials such as videos or PowerPoint slides?

For example, if you are an online fitness trainer, depending on how you offer your courses, you may want to state that you will be engaging your participants in activities but will not be giving any dietary advice. You may also want to state that it is the participant’s responsibility to have a safe space and the appropriate equipment to hand to carry out any techniques to be demonstrated during the course.

2. payment terms

If you are charging a fee for people to attend your event, then your terms and conditions should include payment terms. Include any payment options you are offering, such as the ability to pay by instalments and what payments methods are available.

For example, you may want to provide the option to participants to pay in full by direct deposit to your nominated bank account before attending the event, rather than by credit card.

3. cancellation or refund policy 

Things do not always go as planned. In the middle of 2019 very few people would have predicted that face-to-face conferencing would be put on hold for most of 2020 due to COVID restrictions. Venues do occasionally burn down. Guest presenters do sometimes drop out due to personal reasons. You may end up having to postpone or even worse, cancel your event.

If you don’t want to give refunds, your terms and conditions need to be clear about what you will do if you have to postpone an event. As long as the postponement was outside your control and you remain ready, willing and able to give credit toward a future event, or ensuring a space is available in the next, or one of the next 3 scheduled events, your may not be legally obliged to give a refund.

But what if your participants are the ones that want to cancel or withdraw from your event?

You should set out clearly in what circumstances you participants’ cancellation would be a ‘valid’ cancellation, which would entitle them to a refund. Factors for you to consider include the reason for their cancellation (eg. change of mind, medical reasons) and how long before the event they notify you of their intention to cancel. You should also specify in what circumstances a refund will be made in full, when it will be made in part and whether an administration fee will be deducted.

Having a clear cancellation policy can deter participants from simply changing their mind about attending.

4. disclaimer

When you make a statement to the effect that you are not responsible for something, then you are making a disclaimer. Its purpose, of course, is also to protect you from potential disputes or legal issues.

If you do not want your participants to be under the impression that all information you provide will be accurate and therefore safe to rely on, then you need to say that. If expect your participants to take responsibility for their own health and wellbeing at your event, then that needs to be spelt out.

5. limitation of liability and indemnity

The last thing you want is to have someone bring a legal action against you for a loss they claim to have suffered by attending your event. A limitation of liability and indemnity clause is to protect you from being held responsible for losses or damages that were not caused as a result of your negligence.

6. intellectual property

The materials that you make available to your participants are likely to be your intellectual property and valuable assets of your business. It is important to correctly identify your intellectual property and draft effective clauses to protect it from being misused or exploited by your participants against your wishes.

7. personal information

You are collecting personal information from your participants when they register for your event or provide you with their contact details in any other way. To ensure that you are complying with your privacy obligations, you need to have a privacy policy and link that to your terms and conditions.

If you wish to take photos or videos of your participants during your event and later use that footage to market your business, you will also need your participants’ consent and release, because images can also be personal information.

Want more information?

If you plan to conduct online or offline events, consider what terms and conditions and release forms you need to protect you and your business. Contact Onyx Legal and we can work with you to prepare documents tailored to your business.