The BoldSign mobile app is now available. Visitthis link for more details and give it a try!
The BoldSign mobile app is now available. Visitthis link for more details and give it a try!
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The BoldSign mobile app is now available. Visitthis link for more details and give it a try!
The BoldSign mobile app is now available. Visitthis link for more details and give it a try!
Electronic signatures have streamlined the process of validating agreements, enhancing the speed and efficiency of deal closures in Australia and globally. These digital mechanisms facilitate the rapid and environmentally conscious signing of documents, cutting down on paper consumption and expediting business operations. Nevertheless, when implementing electronic signatures within Australia, it is essential to grasp the critical factors involved.
Users must choose an electronic signature service compliant with Australian laws, notably the Electronic Transactions Act, which grants electronic signatures an equivalent legal standing to traditional handwritten signatures. Note that some documents require handwritten signatures, and legal rules may differ by area, so consider legal advice.
The chosen electronic signature provider must ensure security with encryption, authentication, and audit trails to prevent unauthorized access and maintain document authenticity. Services such as BoldSign offer these safeguards to meet compliance and protection standards.
To summarize, electronic signatures offer considerable advantages and are widely recognized; however, adherence to legal regulations, ensuring robust security, and selecting a user-friendly platform are all essential for successful deployment in Australia.
With the quick advancement of technology, there has been a greater need for a modern technique to approve signatories to a document. This necessity has greatly predisposed the idea of having an electronic signature. Electronic signatures can be defined as the legal concept capturing one’s intention to be bound by the contents of a given document or transaction relevant to the offline copy of it1.
An electronic signature can be in any form of electronic mark linked to an electronic document or process. This includes:
From an international law angle, electronic signatures were regulated by the Model Law of Electronic Commerce of the United Nations of 1996 (MLEC), approving electronic signatures as authentic as wet ink signatures. Nevertheless, the policy remained technologically neutral and did not mandate the use of technology. To this effect, member States were to develop their framework3. Each country has its laws. Specifically, the focus is Australia on this page.
In 2020, as the pandemic emerged, there was an urgent demand for electronic documentation and electronic signatures, especially from businesses previously excluded from electronic signature requirements under the Corporation Act 2001, which mandated the use of traditional wet ink signatures for numerous corporate activities. This change was prompted by the strict movement limitations and quarantine measures imposed on people. Consequently, legal modifications were enacted to accommodate the rapid shift towards digital solutions.
The use of electronic signatures in completing transactions within Australia is regulated by the Electronic Transactions Act [1999]. Generally, electronic signatures are recognized as legally equivalent to traditional wet ink signatures in Australia. At the federal level and across its territories, they are uniformly classified as electronic signatures.
Under Australian laws, The ETA does not define an electronic signature but states that it is legal and enforceable if it meets specific requirements. The requirements that an entity must meet for it to be deemed fit to use electronic signature are such as
This goal is achieved by developing a distinct signature using methods exclusively accessible to the signer, such as a private key and sensitive information, to authenticate their identity. This process may include a consent prompt for the individual who intends to add their signature.
The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a Personal Identification Number (PIN), an email address, or a company registration number.
A mechanism must be established to obtain the signer’s approval to execute the document electronically, ensuring its legal legitimacy. This can be done through a consent prompt to the terms of the electronic system and completion using electronic signature.
Electronic data can be used to affix signatures and provide counter signatures on a diverse array of documents, such as:
Specific exemptions as to the use of electronic signatures vary in each jurisdiction. However, in general, there are specific classes of transactions that are exempt from being executed electronically that is [Section 6A]:
| Transactions that can be used [Under the federal laws] [subject to the jurisdiction laws] |
Exempted transactions. [Under Section 6A of the federal Electronic Transactions Act] |
|---|---|
|
|
Australian territories have initiated unique legislative actions regarding electronic signature usage. These regional laws augment the comprehensive system set by Australia’s federal legislation, adding extra rules and conditions to improve the regulation of electronic signatures in these areas. Through these efforts, the territories seek to create a more detailed and refined regulatory approach to managing digital signing processes. This is intended to cater to regional needs and promote a trustworthy and secure setting for conducting electronic dealings.
There are several different laws enacted across all the jurisdictions in Australia destined to address both the writing and signatures in the digital age, as shown below4.
The table provides an overview of the excluded transactions across the territories.
| Territory | Prohibited Transactions | Legislation | Unique nature of the laws |
|---|---|---|---|
| Northern Territory |
|
Electronic Transactions Act [2000] Section 7(1) Section 9 (1), (c) |
No government accreditation of electronic signature entities. |
| Queensland |
|
Electronic Transactions Act Schedule 1 |
No government accreditation of electronic signature entities. |
| Tasmania |
|
Electronic Transactions Regulations [2021] Section 10A |
No government accreditation of electronic signature entities. |
| South Australia |
|
Electronic Communication Regulations Section 5 |
No government accreditation of electronic signature entities. |
| Victoria |
|
Electronic Transactions Regulations Section 6 [Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021] |
|
| New-South Wales |
|
Electronic Transactions Act 2000 |
|
| West Australia |
|
Electronic Transactions Regulations 2012. Section 3(1) & 4 Electronic Transactions Act. 2011 |
In deciding whether a name in an email qualifies as an electronic signature for transactional purposes, Judge Pembroke ruled that the presence of the sender’s name in the email fulfills the signing requirement of the relevant clause. The purpose of requiring a signature is to establish the sender’s identity and verify the message’s authenticity. This is effectively accomplished in an email by displaying the sender’s name and the originating email address. The sender’s identity and email address can be quickly and easily confirmed. Arriving at any different conclusion could lead to arbitrary and commercially disruptive outcomes, potentially impacting contemporary trade and commerce in unforeseen and widespread ways. This was the same position in McGuren v Simpson – [2004] NSWSC 35, [22]- and Stuart v Hishon – [2013 NSWSC 766] – where a name below a text in an email was found to be a valid electronic signature.
The individual seeking to register submitted their voting enrollment application for a federal election using a web-based service that allowed for digital signatures using a stylus or finger on a mouse trackpad. Upon printing, the signature appeared somewhat grainy. The Electoral Commissioner dismissed the application because the signature did not meet the necessary standards for future comparative purposes. However, the Court determined that the issues raised by the Commissioner were also relevant to application forms sent through email or fax to the Commissioner’s office. Consequently, the Court ruled that the application’s validity was not compromised by the fact that the signature was obtained through an online medium.
To guarantee the legitimacy of an electronic signature, it is recommended to adhere to the following best practices in addition to meeting all relevant legal criteria:
The legal enforceability of documents executed under section 127 of the Corporations Act 2001 (Cth) via electronic signatures remains unclear. According to section 127, a company can execute documents, including deeds and agreements, when they bear the signatures of two directors, one director and the company secretary, or the sole director, who is also the company secretary in the case of a proprietary company. The statute does not clarify whether these documents require physical signatures in ink, leaving ambiguity around the validity of electronically signed documents. This lack of clarity may lead to additional costs and the need for further investigation to determine if a document has been properly executed, leaving the enforceability of such electronically conducted documents by the courts in question.
In July 2019, the judiciary in Bendigo and Adelaide Bank v. Pickard5 decided that Section 127 contemplates a single static document. Therefore, if the same position is to be maintained, the execution of corporate documents by electronic means will be feasible.
In the case of Mark Edwin Trethewey [2002] VSC 83, Justice Beach of the Victorian Supreme Court ruled that a typed name at the end of a document could serve as a valid will signature under certain conditions. Despite the lack of a handwritten signature and witness presence as per the Wills Act 1997 (Vic), the Court recognized the deceased’s intent for the document to be his will and accepted the typed name as his signature. This decision highlighted the Court’s flexibility in interpreting the Wills Act based on the document’s substance and the testator’s intent, Still such rulings are specific to the facts of each case.
The following elements of compliance available within BoldSign can be used to comply with Australian electronic signature laws:
Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures for this country.
However, Syncfusion’s, officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.
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1 Finocchiaro, G. D., & Bomprezzi, C. (2020). A legal analysis of the use of blockchain technology for the formation of smart legal contracts. MEDIA LAWS, 2020(2), 111-135.
2 Pointcheval, D., & Stern, J. (2000). Security arguments for digital signatures and blind signatures. Journal of cryptology, 13, 361-396.
3 https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce
4 Electronic Transactions Act 1999 (Commonwealth consolidated Acts); Electronic Transactions Act 2000 (New-South Wales); Electronic Transactions (Queensland) Act 2001 (Queensland); Electronic Transactions Act 2000 (South Australia); Electronic Transactions Act 2000 (Tasmania); Electronic Transactions (Victoria) Act 2000 (Victoria); Electronic Transactions Act 2011 (West Australia); Electronic Transactions Act 2001 (Australian Capital Territory); Electronic Transactions (Northern Territory) Act 2000 (Northern Territory).
5 Electronic execution by companies under section 127: Bendigo and Adelaide Bank Ltd v Pickard | Practical Law (westlaw.com)