Electronic signing by individual trustees - state and territory requirements
Whilst the Corporation Act 2001 has been updated permanent to allow for directors & other officeholders to sign deeds under s.127 electronically, this is not a universal approach for all types of SMSFs - i.e. only applies to funds with a corporate trustee. Where the fund has individual trustees, we must revert to the various state and territory laws to determine whether such documents can be signed (and witnessed) electronically.
The table below provides you with the current state of play for signing of deeds where individual trustees exist are as follows:
| State/Territory | Can a deed be signed electronically | Relevant legislation |
| Queensland | √ Yes – witness not required | Property Law Act 1974 (Qld)Electronic Transactions (Queensland) Act 2001 (Qld) |
| New South Wales | √ Yes – witness is required (in person or audio-visual link) | Conveyancing Act 1919 (NSW)Electronic Transactions Act 2000 (NSW) |
| Northern Territory | X – Not permitted | N/A |
| Western Australia | X – Not permitted | N/A |
| South Australia | X – Not permitted | The Electronic Communications Act 2000 (SA) does not apply to documents that must be witnessed (such as a deed). |
| Australian Capital Territory | X – Not permitted | N/A |
| Victoria | √ Yes – witness not required |
Electronic Transactions (Victoria) Act 2000
(Vic) |
| Tasmania | X – Not permitted | N/A |
Note: this table is effective as at February 2023
Practical challenges
As with most legislative amendments, the recent changes bring about a number of practical questions, such as:
- “if the deed is governed by Queensland law but I am residing in NSW, can I sign electronically”? and
- “If the deed is governed by Queensland law but one party resides in South Australia and the other party resides in the Northern Territory, can all parties sign electronically?”
The answer to both these questions is yes.
If the document is governed by a state that allows for electronic signing, the individual can sign electronically complying with that state’s laws irrespective of where they reside. It depends on the governing laws of the document itself whether electronic signing is permitted.
It is important to comply with the relevant state’s requirements to ensure you sign properly when using electronic methods.
If you are unsure whether you can sign or witness a document electronically, you should seek independent legal advice (which you can access via Smarter SMSF's legal partner, Hill Legal) to ensure you are complying with the applicable legislation. Improperly signing a document, such as deed, may affect the legal enforce-ability of that deed.