eSignature Legality
in Australia
- Identify the signatory and indicate whether they intend to sign the relevant document or transaction.
- Be either as reliable as the transaction or document to be signed requires; or be proven in fact, either alone or in combination with other evidence, to identify the signatory and their intent to sign the relevant document or transaction.
- Clearly show that the recipient to whom the signature has been provided consented to the signing method used.
Key Conditions: Electronic signatures are considered reliable if they meet these four conditions under the Commonwealth Act and other state legislations:
Identification
The signatory has to be identified and has to indicate their intention to sign the document and/or perform the transaction.
Reliability
The method used to identify the signatory should be reliable and appropriate. The same is determined by considering all the relevant circumstances and the purpose for which such e-signatures on the document are being obtained.
Concent
The counterparty, who is receiving such e-signature consents to the requirement of document being affixed electronically and further asserts such method is appropriate and approved.
Special Considerations
For public sector entities
Corporations’ Amendment (Meetings and Documents) Bill 2021 – An update on electronic execution of documents and virtual meetings
- Section 110(1) - Part 1.2AA will apply to a document (including a deed) to be signed by a person exercising the powers of a company under section 126 or section 127, according to section 110(1).
- Section 110(2) - Part 1.2AA also applies to a document (including a deed) required or permitted to be signed by a person under the Corporations Act that relates to a meeting of members of a company or a registered scheme, a resolution to be considered by the directors or members of a company without a company, or a meeting of the directors
- Section 110A – which allows a person to sign an electronic version of a document using electronic means if the method of signing complies with section 110A. (2).
- Section 110B – prohibits ASIC (Australian Securities and Investments Commission) from refusing to receive or register a document that has been signed in accordance with section 110A on the grounds that it is unsigned.
Australian state and territorial law
- 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.
- 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: Transactions Regulations 2011.
Documents that can be electronically signed
- HR
- Procurement
- NDAs (provided it is an agreement not a deed)
- Software licensing
- Healthcare
- Insurance
- Education
- Technology sector; and
- Documents to be recorded, though it depends on where they are to be recorded.
- Corporate Resolutions
- Banking
- Lending
- Chattel Paper
- Consumer Transactions
- Government Filings
- Real Estate; and
- Documents to be Notarized
Enforceability of electronically signed document:
- Converting documents to agreements (by reviewing the wording of the document and necessitating consideration) where they are not required to be in the form of a deed.
- Requiring the parties to mutually consent to (and maintaining evidence of such consensus)
- the use of electronic communication to comply with statutory information-giving requirements
- the use of electronic signatures in the contract's execution; and
- When one of the parties is a corporation, include the following clause in the agreement
- The signer's warranty that they are duly authorized to electronically sign the contract; and
- A condition requiring, if requested, evidence of authority to execute the contract be provided within a certain period.
DISCLAIMER:
Certinal is making available the information and materials in this article for informational purposes only and is meant to help companies understand eSignature’s application in a legal framework. Laws change rapidly and Certinal makes every reasonable effort to keep the content of this article current, hence Certinal makes no claims or representations that the information contained in this article is true, accurate, correct, or current. The law is different from jurisdiction to jurisdiction, and even similar laws may be interpreted differently in different courts or in different places. Since these factors differ according to individuals and businesses, Certinal is not liable for any consequence of any action taken by any third party relying on material/ information provided under this article. The contents hereof should not be construed as legal advice in any manner whatsoever. In cases you require any assistance; you must seek independent legal advice.