Welcome
Quarter 1 down
It is hard to believe that we are already a Quarter into to 2021! Summer is officially over and here in Melbourne we seemed to have jumped straight into Winter.
We have all definitely come a long way since this time last year when the whole country had just gone into lockdown. Every-day life looks something akin to normal which, most importantly, includes being able to head back to the MCG to watch live footy!
It has been a busy Quarter as we continue to work both from home and in the office. Our Alliance Service is continuing to progress and if you are interested in signing up please get in touch.
Our next step as a team is to organise how we can have Jackie cross the Western Australian border safely so the whole team can meet together in person for the first time. Here’s hoping this has been achieved before our next newsletter.
Best Wishes
Andrew, Jackie, Roxie & Yee
Client spotlight
Each newsletter we profile one of our clients doing amazing things.
In this edition, we’re proud to feature Studiosity.
Studiosity partners with universities, schools, public libraries and education institutions across Australia, New Zealand, and the UK to deliver individual moments of support and confidence, at previously impossible scale. Now with more than 1.3 million students worldwide with access, their mission is to ensure that every learner everywhere has access to quality, individual learning support when its needed.
From their unique standpoint – established and trusted in the education industry, yet as agile as a startup, Studiosity is able to deliver on that mission by using stringent recruitment processes to harness the best and brightest minds across various time zones, and connect them with students in need on-demand, via their own seamless technology and thoughtful UX design.
In early 2021 Studiosity completed an investment from Online Education Services (part of the Seek Group) and CVC Emerging Companies Fund through the sale of a minority stake. We advised Studiosity through this process and were pleased to help them complete a successful transaction.
What else is keeping us busy
Here’s some other projects we’ve worked on with our clients over the last few months.
- Helping many clients with capital raising – term sheets, SAFE notes and issues of ordinary and preference shares to VC investors
- Advising several clients on potential purchases and sales of businesses
- Software / SaaS contract terms
- Lots of reseller and distribution agreements, teaming agreements
- Heads of Agreement / MoUs for development agreements and joint ventures
- Intellectual property licences, assignments and other transactions – including spin-outs from Universities into new companies
- Preparing, reviewing and advising on lots of commercial contracts
If you’re looking for similar solutions please get in touch.
Legal briefing
Electronic Signing of Documents
In May 2020 the Government introduced The Corporations (Coronavirus Response Determination (No. 3) 2020 (No. 3 Determination) in response to the Covid-19 Pandemic. This explicitly allowed for documents to be signed electronically and in counterparts under section 127 of the Corporations Act 2001 (Cth) (Corporations Act). This resulted in directors and/or company secretaries being able to use electronic signatures to sign on behalf of a company without having to sign the same document.
On 21 March 2021 the relief provided under No.3 Determination expired. A Bill has been introduced into Parliament to extend the relief, however it has not been enacted. This means that companies can no longer rely on the relief and must comply with the Corporations Act as it existed before May 2020.
There are Australian laws that explicitly allow for electronic signatures to be used to sign a contract, and these have been interpreted widely by the Courts to uphold contracts. There is however a technical argument about whether under section 127 a company can sign a document (with two directors or a director and a company secretary) electronically and in separate documents.
The conservative view is that ‘wet ink’ signatures are required under this section and that both individuals must sign the same hard copy document. This specific question however remains untested before the Courts. We think the risk of a Court ruling that an agreement is invalid just because it was signed electronically on separate documents is low (but not zero).
The Government intends to extend the protection under No.3 Determination until at least September 2021 (we hope permanently). If common sense prevails, this will be passed with retrospective effect to resolve any uncertainty.
If you would like advice on steps you could take to address this issue please get in touch.
Online Meetings and Electronic Document Execution
In response to the Covid-19 Pandemic the relief under No. 3 Determination also allowed a Company to hold virtual meetings (including AGMs). This included quora, votes, notices of meeting and the asking of questions being facilitated electronically.
As No. 3 Determination expired on 21 March 2021, companies will have to revert to holding meetings that comply with the Corporations Act and the company’s Constitution, which could result in the holding of a physical in-person meeting being the most reliable option. Hybrid meetings (in-person plus virtual) may be permitted but companies will need to ensure that their Constitution allows this kind of meeting.
Thankfully, ASIC has announced that it will adopt a ‘no action’ position in relation to companies convening and holding virtual meetings between 21 March 2021 and 31 October 2021. In order to provide a level of certainty ASIC has said its ‘no action’ position will:
- support holding meetings virtually using appropriate technology;
- allow notices of meeting to be electronically circulated; and
- allow public companies an extra two months to hold their AGM.
You can read the full ‘no action’ position from ASIC here.
Privacy Act Review
In November 2019 the Australian Government launched a review of the Privacy Act 1988 (Cth) (Privacy Act) with an Issues Paper being released in October 2020. The review is considering stakeholder views on specific issues, submissions that are made in response to the Issues Paper and previous reports and research on privacy issues.
The Government has indicated that a discussion paper will be released in 2021 where there will be further opportunity for stakeholder and industry to provide specific feedback and comments. It has been stated that this review will be made public after it is given government consideration.
The Office of the Australian Commissioner (OAIC) has made submissions and broadly supports the review of the Privacy Act given the increasing amount of data held by businesses and the global nature of the digital economy.
It is likely that this review will result in changes and implications for Australia’s privacy regime that will affect the majority of Australian organisations and industries and strengthen individuals’ rights.
We will give further updates when the discussion paper is released and further submissions are made.
Diversions
A selection of things taking up time outside work:
- All Our Shimmering Skies, Trent Dalton – a beautiful follow up to his first novel Boy Swallows Universe, set in Darwin 1942 when the Japanese bombs fall. (Roxie)
- Ordineroli Speaking, Neroli Meadows – a wonderful podcast for anyone who loves sport and human stories that celebrate resilience and vulnerability. (Roxie)
- Vietnamese Noodles with Lemongrass Chicken – This is our family favourite! It’s simple, healthy and full of flavour. You can cook the Chicken on the BBQ (or fire pit) for a more authentic taste. Free recipe here (Yee)
- Gary Barlow Crooner Sessions – YouTube – Gary has been doing one a week during lock down in the UK, joined by various music industry heavyweights. This one with Kelly Hansen from Foreigner is a particular favourite: click here (Jackie)
