Australia’s business communications evolution – the shift from paper to pixels

The Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Cth)  received Royal Assent on 14 September 2023.

The Act amends the Corporations Act 2001 (Cth) and other Commonwealth legislation, facilitating more modern and accessible communication between consumers, businesses and regulators.

This article provides an overview of some of the key changes.

Key takeaways

The key changes to Australia’s business communications regime include:

• allowing all documents required or permitted to be signed under the Corporations Act to be signed in wet-ink or electronically
• allowing most documents required or permitted to be sent under the Corporations Act to be sent in hard copy or electronic form
• removing the requirement for companies to send documents to a member where the contact details for that member are known to be incorrect
• replacing requirements in Treasury laws to publish notices in newspapers with a requirement that notices be published in an accessible and reasonably prominent manner
• allowing directors’ meetings to be called or held using any reasonable technology without requiring directors to consent to the technology.

Most of the changes came into effect on 15 September 2023.

The changes to the publication requirements will come into effect on a day to be fixed by Proclamation. If this does not occur within six months of 14 September 2023, they will come into effect on the day after the end of that period.

Signing documents

All documents required or permitted to be signed by a person under the Corporations Act can now be signed in wet‑ink or electronically.

These reforms build on the changes to the Corporations Act made by the Corporations Amendment (Meetings and Documents) Act 2022 (Cth) in February 2022 to allow companies to electronically sign documents under sections 126 and 127 of the Corporations Act (see our discussion here).

Importantly, the method of electronically signing a document still needs to identify the person signing, indicate their intention to be bound, and be appropriate in the circumstances. Most common electronic signing methods, including electronic signing platforms like DocuSign, are capable of satisfying these requirements.

Sending documents

Most documents required or permitted to be sent under the Corporations Act, other than those that are lodged with ASIC, the Registrar or the Takeovers Panel, can now be sent in hard copy or electronic form.

This applies to a requirement or permission to send a document, whether the expression ‘send’, ‘give’, ‘serve’, ‘dispatch’ or any other expression is used.

As a result of these changes, further changes have been made to the provisions in the Corporations Act dealing with takeover bids and compulsory acquisitions. These further changes include:

• a new provision requiring the target to provide the bidder with the postal and electronic addresses of the security holders known to the target, as well as any elections made by the security holders
• a new civil penalty provision that applies if a bidder uses or discloses such information for a purpose that is not related to the takeover bid or compulsory acquisition
• new provisions in relation to when a document is taken to have been sent.

Incorrect contact details

The Act provides relief from the requirement for companies to send documents to members where the company knows that the members’ contact details are incorrect. The relief is subject to the following conditions:

• the sender is a company, responsible entity of a registered scheme, corporate director of a corporate collective vehicle, or a disclosing entity, and the recipient is a member of the sender
• the sender has received notification, in relation to each of the addresses for the recipient that are known to the sender, that indicates that the address is not current
• the sender reasonably believes that none of the addresses are current
• the sender is unable, after exercising reasonable diligence, to ascertain a current address for the recipient.

For the relief to remain effective, the sender must attempt to contact the recipient in the period from six to 18 months after meeting the conditions for relief.

Publishing notices

Notices that were required or permitted to be published in newspapers can now be published in technology neutral manners. Broadly, the notices must be published in a manner that results in them being accessible to the public and reasonably prominent.

Directors’ meetings

Directors’ meetings can now be called or held using any reasonable technology. This removes the requirement for directors to consent to the technology. However, a company’s constitution may still require directors to consent to the technology.

Please contact a member of our corporate advisory team if you have any questions about the changes to Australia’s business communications regime.