Electronic Signatures in Australia

In Australia, electronic signatures are governed by combination of Federal and state laws. At the Federal level, electronic signatures are governed by the Electronic Transactions Act 1999, and at the state level there are several corresponding statutes that stipulate further requirements that have to satisfied for electronic signatures to be valid. The general view is that if the requirements of the ETAs are satisfied, contracts can be executed electronically with a low risk of invalidity in a Court of law.

What Constitutes a valid signature?

According to the laws stipulated in the ETA, an electronic signature will be valid if three requirements are met:

• Identity: The person signing must be identified as well as their consent to the content of the document. This is can be satisfied through the use of an electronic signature accompanied by typed text setting out at least out the signatory's name.
• Reliability: The method of signing should be reliable through the use of user authentication before signature insertion, and/or digital certificates, setting out the time and place a signature was inserted.
• Consent:both parties must agree that the document can be executed using electronic signatures.

Admissibility of Electronic signatures

A valid electronic signature in Australia has the same weight as a traditional signature done in wet-ink. The validity of the electronic signature is based mainly on the rules stipulated in the ETAs. Nevertheless, Australia operates on the basis of the common law, and such, there are some instances in which an electronic signature would be considered valid even when these rules are not followed. For example, a document signed electronically on behalf of a corporation may still be validly executed under Australian common law. The Corporations Act 2001 indicates that a corporation may execute a document without using a common seal, and in such circumstances the corporation would be exempt from ETAs. The ETAs therefore also serve as indication and certainty and clarity as it relates to electronic signature.

Limitations

There are some documents that cannot be signed electronically. Such documents include documents that need to be witnessed (Ex. deeds), signatures of witnesses in some states, as well as Wills, Power of Attorney, Real estate agreements and, Migration or citizenship documents