Electronic signatures in Australia

Section 10 of the Electronic Transactions Act 1999 sets out when a signature requirement under a Commonwealth law may be met electronically. In broad terms, the method must:

• Identify the person and indicate their intention regarding the information being communicated.
• Be as reliable as appropriate for the purpose, considering the circumstances, or be proven in fact to have performed those functions.
• Meet any required method when the signature is being given to a Commonwealth entity.
• Be used with the consent of the person to whom the signature is required to be given. Under the Act, consent may be express or may reasonably be inferred from the person's conduct.

The Act does not make one signing method appropriate for every transaction. A method that is reasonable for a routine internal approval may not provide the evidence or assurance needed for a high-value agreement, regulated process or disputed transaction.

The Electronic Transactions Regulations 2020 specify particular Commonwealth laws or provisions of Commonwealth laws to which specified provisions of the Electronic Transactions Act 1999 do not apply. These exemptions mean that the electronic-signature framework must be checked against the specific legislation governing the transaction. Other legislation may also prescribe how a particular document must be signed, witnessed, lodged or retained.

Australian states and territories have their own electronic-transactions legislation. Although these laws share similar principles, their application and exceptions are not necessarily identical. A process suitable for one type of agreement may therefore be unsuitable for another, particularly where a state authority, court, land registry or other public body is involved.

The Corporations Act 2001 contains technology-neutral signing provisions in Part 1.2AA. These provisions apply to documents, including deeds, required or permitted to be signed under the Corporations Act, including documents executed by or on behalf of a company under sections 126 and 127. Where the relevant requirements are satisfied, documents may be signed electronically. Other legal or constitutional requirements may still need to be considered.This means the old statement that company documents under the Corporations Act can only be signed with wet ink should not remain on the page. However, organisations still need to confirm that the method used satisfies the Act and any other requirements applying to the document.

Additional advice may be appropriate when a transaction involves:

• A deed or a document requiring witnessing.
• Wills, powers of attorney and other estate-planning documents are subject to specific formalities that can vary between Australian jurisdictions.
• An affidavit, statutory declaration or other document used in legal proceedings, where specific legislation, court rules or procedural requirements apply. A document that must be lodged with a government body, court or land registry.
• A transaction governed by specific industry legislation.
• Parties, governing laws or signing requirements in more than one country.

This list is not exhaustive. The relevant legal requirements should be checked before the signing process is configured, rather than after a document has already been executed.

Before choosing a signing method, consider:

• Which Commonwealth, state or territory law applies.
• Whether the document is excluded or subject to a prescribed process.
• Whether the recipient agrees to the electronic method.
• Whether the applicable law requires the recipient's consent to the electronic method.
• How the signer will be identified and their intention recorded.
• Whether the person signing has the authority or capacity required to execute the document.
• What evidence will be available if the signature is questioned.
• How the document and its supporting records will be retained.
• Retention requirements should be assessed separately under the legislation governing the document and under applicable privacy laws. Electronic retention should preserve the document's integrity and ensure that it remains accessible for the required period.
• Whether applicable privacy laws impose additional requirements on the collection, use, storage, security or cross-border disclosure of personal information, including requirements that may apply when information is accessed or processed outside Australia or moved outside of Australia. The appropriate process should reflect the importance of the document, the likelihood of dispute and the consequences of accepting a signature from the wrong person.

If your organisation is reviewing how to introduce or improve electronic signing, contact SigniFlow to discuss the available options. The technology selected should be assessed alongside the legal requirements applying to the document and transaction.

Important legal notice

This page provides general information and is not legal advice. Electronic-signature requirements vary according to the applicable law, document and circumstances. Obtain advice from a qualified Australian legal professional before relying on an electronic signing process for a particular transaction.