Elder abuse issues raised with electronic execution changes

The bill, which was introduced in February this year, was the first tranche of the government’s modernising business communications legislation aimed at improving the technology neutrality of Treasury Portfolio Laws.

The bill amended the Corporations Act 2001 to allow all documents to be signed or executed electronically; allow certain additional categories of documents to be sent electronically; and amend the criteria with which an entity must comply before they are relieved from their obligations to provide a document to a member, Mr Dunn explained.

While the bill lapsed as a result of the election, Mr Dunn said it is expected the bill will be reintroduced into Parliament as some stage during 2022.

The government has also been consulting with various industries on how the next phase of these measures can be implemented.

“The idea behind this is to allow for all documents that are required to be executed within the Corporations Act to be able to be done and completed in any technology neutral manner,” he explained.

“I was involved in a meeting with Treasury in April about the next phase of this, which is around the SIS regulations.”

Documents such as trustee declarations and consents to act are still required by the SIS Act to be done only in wet ink at this stage because the Electronic Transactions Act does not apply to the SIS Act and SIS Regulations.

“Then you've got your application for membership and resolutions that are then subject to what the deed says,” he noted.

Mr Dunn said the government would likely to see the technology neutrality measures applied broadly to the specific acts and regulations, including the entire SIS Act and SIS Regulations.

“So this is looking at things like the requirement for a written plan for the in house asset rules. It's looking at the requirements for holding of records for a five year or 10 year timeframe and requirements for collectables [in terms of the] written records required around that. We also had a long conversation about investment strategies,” he said.

The only area where there have been some potential issues raised by industry, he said, is in relation to testamentary trust type documents.

One of the things being considered by Treasury as part of its consultation, said Mr Dunn, is whether the signing of death benefit nomination forms will still need to be witnessed by two people.

“Will witnessing still be required under a technology neutrality approach or is the verification of that individual through something like a Docusign sufficient to verify that it is that individual actually completing that task because that’s what a witnessing approach is all about?” he said.

“There is some concern that we could have some kind of elder abuse where the son or daughter or whoever is sitting there clicking through for Mum or Dad or so forth. However, you could equally argue that they could also sit there and get Mum and Dad to sign something anyway in paper form.

“We will have to wait and see what the [legislation] looks like.”

Mr Dunn said he expects that the first bill as part of the modernising business communications measures will soon be reintroduced into Parliament.

“Shortly after that we will see some information about whether [the next phase of these measures] will go through further consultation or whether there will be an exposure draft issued through Treasury,” he said.

“We’ve already had a period of consultation with Treasury and given them some feedback. Treasury have just been waiting for a new government to form [but want]  keep things going. I don't think we're going to see anything controversial that would stop this from continuing to move through.”