Measures for electronic execution of documents extended into 2022

Due to continual work from home arrangements and difficulties posed by travel restrictions, both federal and state governments are extending temporary laws to allow documents to be signed electronically. However, the permanent implementation of these changes are still up in the air.

Federal Amendments

In August, the Federal Parliament passed the Treasury Laws Amendment (2021 Measures No.1) Bill 2021, which has extended the temporary measures for electronic signing until next year.

It amends section 127 of the Corporations Act to allow for signing of a copy or counterpart of a document, meaning that signatories do not need to sign the same document, as long as each copy or counterpart of the document includes the entire contents of the document.

It also means a document does not require a “wet ink” signature, as long as an accepted method is used to identify the person signing electronically and it indicates that person's intention in relation to the contents of the document. If a document is executed by the affixing of a common seal, the witnessing may take place via audio-visual link (e.g. Zoom).

The method used to electronically sign the document must be reliable, taking into account the circumstances and the nature of the document (programs like DocuSign or AdobeSign would likely satisfy this requirement).

These amendments are due to expire on 31 March 2022. There is not permanent legislation to allow electronic signing, however government consultations are ongoing.

Queensland Amendments

Queensland temporary measures for COVID-19 have been further extended to 30 April 2022 with the assent to the Public Health and Other Legislation (Further Extension of Expiring Provisions) Amendment Act 2021.

The State Government is now looking to make certain measures permanent with the Justice Legislation (COVID-19 Emergency Response—Permanency) Amendment Bill 2021. If this bill passes, the changes we have seen over Covid will remain in place permanently.

This amendment extends the temporary Covid measures to allow for more flexibility when signing legal documents. These arrangements allow for electronic signing and audio-visual witnessing for documents such as affidavits, statutory declarations, general powers of attorney for businesses and deeds. As with the Federal laws, the signing will have to be done with an accepted method.

Documents that will not qualify for electronic signing include enduring powers of attorney, wills, general powers of attorney by individuals and sole traders and some Titles Office documents.

The passing of this bill will hopefully provide more clarity on which particular documents can be electronically signed and how they can be authenticated by witnesses.

While it may have taken a global pandemic to see electronic signing laws streamlined, it is a positive to see the law adapting to the times and simplifying the execution processes for businesses around the country.

Director Identification Number applications are open: here’s what you need to know

On 1 November 2021, applications opened for directors to apply for a director identification number (DIN). This is a new regime in Australia and it is vital that all company directors are aware of how to obtain one.

What is a DIN?

A DIN is a unique 15-digit identifier given to a director, or someone who intends to become a director that will be kept by the individual permanently. The introduction of DINs was in response to a government effort to combat illegal phoenix activity. It is hoped that in the event of liquidation or administration, it will be easier to trace a director’s activities over time and prevent fraudulent director identities.

Who must apply?

The requirement to have a DIN extends to all persons appointed as a director, or an alternate director for companies registered under the Corporations Act, this includes foreign corporations trading in Australia. The application can be commenced through the Australian Business Registry Services website. It is free and can be done via the myGovID app.

When to apply?

Applications are open now and there are strict deadlines. For those who became directors before 31 October 2021, the deadline is 30 November 2022. If you become a director between 1 November 2021 and 4 April 2022, it must be done within 28 days of appointment. However, for those who get appointed after 5 April 2022, it will have to be done before your appointment.

Directors who fail to apply for a DIN by the deadline could face criminal or civil penalties of up to 5,000 penalty units (currently $1.1 million dollars).

With an estimated 2.1 million company directors in Australia, this requirement will affect a number of Australians.

International Bar Association releases report showing persistent mental health stigma in the legal profession

The report released last month by the International Bar Association (IBA), shows mental health issues are particularly prevalent in the legal profession and that many employers are not equipped with the skillset to proactively support individuals.

The report titled: Mental Wellbeing in the legal profession: a global study, did over 3200 surveys from around the world in law firms, bar associations and in-house legal departments. The overall findings paint a sobering picture. Despite increased awareness of mental health impacts within the profession, there remains significant work to be done to improve mental wellbeing within the profession.

Researchers used a World Health Organisation index which measured various factors to form a score out of 100 per cent, under which an individual who scores below 52 per cent is likely to need a formal assessment of their wellness concerns.

Demographic Discrepancies

There was an overall average score of 51 per cent, meaning the average individual who was surveyed is likely to need a formal assessment of their wellness. However, there were also noticeable differences in scores depending on certain factors. While men scored on average around 56 per cent, women only scored around 47 per cent. There were also clear discrepancies in age, with those aged 25-29 ranking on average at 43 per cent while those aged 60+ ranked at 64 per cent. Ethnic minorities also scored on average 47 per cent compared to their counterparts at 51 per cent.

The most commonly cited negative factors were stress, intense time demands, poor work life balance and high pressure. The positive factors were cited to be a sense of purpose, interesting work and connecting with others.

Room for improvement for employers

The report has revealed that despite increased awareness of mental health issues, many employees do not feel like they can have these discussions with their employer. When surveyed, 41 per cent cited a fear for potential impact on their career, including 32 per cent who indicated a fear of differential treatment, were they to raise such concerns.

These fears can be viewed in the wake of findings that while three quarters of workplaces had wellbeing initiatives in place, a third were actually providing funding and only 16 per cent said that all senior management had been given specific training on mental wellbeing.

Employers have a significant role to play in this discussion. Those who scored higher than the average for mental wellbeing indicated that their organisation had responded effectively to issues they had raised. However, where individuals indicated their firm or organisation did not respond effectively, levels of individual mental wellbeing were lower than average.

Not addressing mental health concerns can have significant impacts on the employer too as 46 per cent of respondents had considered taking time off, 26 per cent made a mistake and 32 per cent felt unable to perform due to mental health issues.

Reflection/Future Challenges

Covid-19 has increased the levels of awareness of mental wellbeing among firms. When those surveyed were asked what lessons the industry should learn from the pandemic, the top responses were more flexible working practices (more work from home, better work-life balance) and more of a wellbeing focus.

The IBA concluded by stating there is the: “unprecedented opportunity that we have as a profession to focus on mental wellbeing in the post-Covid era, as well as the enormous groundswell of support and interest in this subject that is emerging worldwide. The challenge now is to continue building on this work in order to build the supportive, inclusive, and well-led profession that we all want to be part of.”

The IBA report set out 10 principles for both institutions and individuals to better combat wellness issues in the legal profession, prioritising the need for good policies and training to help combat negative mental health.

On 27 October, our Practice Manager Justice Fletcher attended an ALPMA Seminar titled: Leading Wellbeing in the Legal Profession. This session focused on equipping leaders with the tools to develop a workplace framework to create a mentally healthy team have the skillset to proactively support and assist it.

Justine said she found the session: “very informative ... with shocking statistics on mental wellbeing in the legal industry and how mental illness is now the number one cause of personal leave in Australia”

The key takeaway from this is to ensure all employers are equipped to proactively support those struggling with mental health and for individuals to know how to look after yourself and don’t be afraid to speak up if you need help.