Electronic Signature Laws & Regulations - Australia

Electronic signatures (or e-signatures) are common in Australia and regularly used for business transactions. Australian laws regarding electronic transactions start from the basis that all types of electronic signatures are just as enforceable and admissible as traditional “wet” signatures, providing that they meet three conditions. They must:

1. Identify the signatory and indicate their intention to sign the relevant document or transaction;
2. Be either as reliable as appropriate for the purpose of the transaction or document to be signed; or proven in fact, either by itself or in conjunction with other evidence, to identify the signatory and their intention to sign the relevant document or transaction; and
3. Show that the person to whom the signature is provided consents to the method of signing used.

Legal Landscape in Australia
Australian laws around electronic transactions are complicated by the federal nature of the country’s government. At the Commonwealth (i.e. national) level, the key legislation is the Electronic Transactions (ET) Act 1999, which applies to transactions governed by Commonwealth laws. The Electronic Transactions Regulations 2020 then set out which transactions and Commonwealth laws are exempt from the Act, and so require a traditional signature. Additionally, each State and Territory in Australia also has its own electronic transactions legislation, which broadly mirror the Commonwealth ET Act but include some specific exceptions that apply when a transaction is governed by the laws of the relevant State or Territory.

Australian state and territorial law
The relevant legislation in each Australian State and Territory is:

• Victoria: Electronic Transactions (Victoria) Act 2000;
• New South Wales: Electronic Transactions Act 2000;
• Queensland: Electronic Transactions (Queensland) Act 2001;
• Western Australia: Electronic Transactions Act 2011;
• South Australia: Electronic Communications Act 2000;
• Northern Territory: Electronic Transactions (Northern Territory) Act 2000;
• Tasmania: Electronic Transactions Act 2000; and
• Australian Capital Territory: Electronic Transactions Act 2001.

As with the Commonwealth ET Act, in some States and Territories regulations set out which transactions and laws are exempt from that State or Territory’s electronic transactions legislation. The types of exemptions are different in each State or Territory.

The main regulations are:

• Victoria: Electronic Transactions (Victoria) Regulations 2010;
• New South Wales: Electronic Transactions Regulation 2017;
• Western Australia: Electronic Transactions Regulations 2012;
• South Australia: Electronic Transactions Regulations 2017;
• Northern Territory: Electronic Transactions (Northern Territory) Regulations 2001; and
• Tasmania: Electronic Transactions Regulations 2011.

The Commonwealth Corporations Act
Any person executing a deed or document under section 126 of the Corporations Act 2001 (as agent of the company) or section 127, may use an electronic signature if the method identifies the person, indicates an intention to be bound and is as reliable as appropriate in the circumstances.

A person can rely on the statutory presumption in section 129(5) of the Corporations Act where a document has been electronically signed. This section provides that a person may assume a company has duly executed a document if the document appears to have been signed by either two directors of the company, a director and a company secretary of the company, or the director of a proprietary company who is the sole director and sole company secretary.

Courts on Electronic Signatures
Various court cases in Australia have upheld the validity of documents signed electronically. However, the threshold for the “reliability” requirement is reasonably low. For example, the courts have upheld the use of a stylus or finger on a computer trackpad to produce a signature similar in appearance to one sent by fax. Thus, when doing business with other jurisdictions where e-signature validity may be assessed differently or for specific compliance requirements, use of certificate-based digital signatures, such as cloud signatures, should be considered as part of the workflow risk management strategy.

Special Considerations

In Australia, there are several use cases that generally require a traditional signature. Additionally, there are several instances that require additional consideration for e-signatures legal compliance such as when transacting with public sector entities as well as specific state or territory law that may apply to certain use cases or transactions.

Transacting with public sector entities
Under the Commonwealth ET Act, if you provide an electronic signature to a Commonwealth government department or agency, the method of providing that signature must meet the department’s specific information security requirements.

Use Cases that Generally Require a Traditional Signature
The exemptions differ in each jurisdiction. However, in general, there are five categories of transactions that are exempt:

1. Legal proceedings:

• The Commonwealth ET Act cannot be relied on for validation of the use of an electronic signature in relation to the practice and procedure of a court or tribunal, including all matters in relation to which rules of court may be made.
• The New South Wales Regulations provides that documents that must be or are permitted to be lodged, filed, signed, produced, or retained in relation to legal proceedings cannot be signed or executed electronically.
• The Queensland Regulations provide that documents that must be or are permitted to be filed, signed, produced, or retained in relation to a court or tribunal for a proceeding cannot be signed or executed electronically.

2. Personal service:

• In New South Wales and Queensland, documents that must be or are permitted to be served personally or by post cannot be signed or executed electronically.
• In South Australia, documents that must be or are permitted to be served personally cannot be signed or executed electronically. However, this exception does not apply to certain prescribed legal proceedings. Prescribed legal proceedings include proceedings in relation to:
  • summary or indictable offences under the Summary Procedure Act 1921 (SA);
  • the enforcement of a sentence for an offence;
  • enforcement and recovery of fines;
  • the issue and recovery of expiation fees;
  • court orders of a restrictive nature made under the Summary Procedure Act 1921 (SA); or
  • court orders made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
• In Victoria, transactions that must be effected by personal service and documents that must be served personally cannot be signed or executed electronically.
• In Western Australia, transactions that must be effected by personal service, and information or documents that must be served personally, cannot be signed or executed electronically.
• In the Northern Territory, information that must be given or documents that must be served personally cannot be signed or executed electronically.
• In Tasmania, transactions that must be effected personally, and information or documents that must be served personally cannot be signed or executed electronically.

3. Powers of Attorney:

• In Western Australia, transactions, requirements, or permissions in relation to creating an instrument appointing an enduring power of attorney or an attorney to manage a person’s affairs cannot be signed or executed electronically.
• In Tasmania, transactions in relation to the creation of an instrument appointing an enduring guardian or an attorney to manage a person’s affairs cannot be signed or executed electronically. Further, requirements or permissions in relation to enduring guardians or powers of attorney cannot be executed or signed electronically.
• The Northern Territory Regulations provide that transactions in relation to the creation or revocation of a power of attorney cannot be signed or executed electronically. Further, laws that require or permit a person to give, record or retain information in writing in relation to the creation or revocation of a power of attorney, or produce or sign an instrument creating or revoking a power of attorney cannot be signed or executed electronically.

4. Wills:

• In Victoria, transactions, requirements or permissions in relation to the creation, execution or revocation of a will, codicil or other testamentary instrument can be signed or executed electronically. However, all participants must be located in Victoria during the witnessing process.
• Electronic execution of wills has not been widely adopted in Victoria as it is largely untested by the court. It remains best practice to execute a will by wet signature as significant legal issues may arise if the electronic signing procedures are not followed correctly.
• Electronic execution of wills is not permitted in the remaining Australian States and Territories.

5. Witnessing:

• The witnessing requirements in each State and Territory are complex and differ in each jurisdiction.
• In New South Wales and South Australia, documents that must or are permitted to be verified, authenticated, attested, or witnessed by or under a person’s signature who is not the author of the document cannot be signed or executed electronically. In NSW, there are certain exceptions and requirements for electronic witnessing. In South Australia, this exception does not apply to transactions in relation to the disposition of land, an interest in land or prescribed legal proceedings. Prescribed legal proceedings are discussed further above.
• In Queensland, documents that must be or are permitted to be attested, authenticated, verified or witnessed by a person who is not the author of the document cannot be signed or executed electronically.]
• In Western Australia, transactions, or requirements that a document must be verified, authenticated, attested, or witnessed under a person’s signature who is not the author of the document cannot be signed or executed electronically.