E-Signature Regulations

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Unlike the EU, there is no legislated or government-endorsed list of trusted e-signature entities in Australia. However, various e-signature technologies are widely used, such as DocuSign.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Under common law, Australian courts broadly accept electronic signing. Each jurisdiction’s ETA further clarifies this position. The ETAs differ slightly but generally, the electronic signing method used for most standard contracts should identify the signatory and indicate their intention to execute the document electronically. The signing technology used must also be “as reliable as appropriate” in the circumstances. Lastly, each signatory must consent to the other’s electronic execution.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Australian law generally recognises that most contracts can be validly signed by electronic means. However, there are three main areas where electronic signing can be prohibited: deeds, signing by companies and witnessing. Some jurisdictions such as Victoria have allowed electronic signing of deeds and audio-visual witnessing due to COVID-19 while others have done so temporarily (e.g. NSW). Companies can also temporarily execute documents electronically until April 2022.

What is the e-signature law enforceable in your jurisdiction?

Electronic signatures are governed by the common law as well as the Electronic Transactions Act 1999 (Cth) and its equivalents in each state (the “ETAs”). Each state and territory also has its own Oaths and Affirmations Act which governs the electronic signing and witnessing via audio-visual link of wills, powers of attorney, affidavits and other significant documents. Recent changes to the Corporations Act 2001 (Cth) also temporarily allow the electronic execution of documents by companies.

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