Legality Statement

We are Legally Compliant

Electronic (digital) signatures are welcomed in the majority of countries around the world as a way to transition beyond a paper-based environment for document contracts. Ezsignature.com.au (esignatures) provides you with a legally binding e-signature solution (Service) for your individual and business contract requirements. ESignatures complies with the requirements outlined in the following:

Electronic Transactions Act 1999
New South Wales: Electronic Transactions Act 2000
Victoria: Electronic Transactions Act 2000
Queensland: Electronic Transactions Act 2001
Western Australia: Electronic Transactions Act 2011
Southern Australia: Electronic Transactions Act 2000
Northern Territory: Electronic Transactions Act 2001
Australian Capital Territory: Electronic Transactions Act 2001
Tasmanian: Electronic Transactions Act 2000

In addition to the outlined Australian laws, ESignatures also comply with the requirements of the U.S. Electronic Signature in Global and National Commerce Act of 2000 (ESIGN) and the Uniform Electronic Transactions Act (UETA).

What constitutes an electronic signature in Australia?

The ETA [Electronic Transactions Act of 1999 (Cth)] does not define an electronic signature, but states that an electronic signature is legal and enforceable if it meets the following three requirements (which also apply under each Local ETA):

A method (e.g., the type of electronic signature) is used to identify the signer and to indicate the signer’s intention to sign the document;
The method used is as reliable as appropriate for the purposes of the communication or is proven to identify the person and indicate their intention; and
The signer consents to the method used (with such consent allowed to be expressed or inferred from the circumstances).

Does Australia recognize a SignNow electronic signature as a valid type of electronic signature?

Yes, provided the above requirements are met.

Specifically, customers can use the Ez Signature’s default Electronic Record and Signature Disclosure template to meet the requirement for obtaining consent from a signatory. However, it is the sole customer’s responsibility to make sure that the text of the disclosure is valid for the customer’s transaction and, if necessary, customize the consent or create their own.
If you have any questions about using the EZ Signature’s Electronic Record and Signature Disclosure template, contact our support team.

Do parties need to consent to use electronic signatures in Australia?

As noted above, the person must consent to the method being used, which, unless otherwise required by law, can be inferred by conduct, or included as an express consent. Further, some transactions require formal consent procedures to be met. For example, formal consent is required for consumer loans regulated by the National Credit Code (“NCC”).

What are the key factors pertaining to the enforcement of electronic signatures in Australia?

Generally, under the ETA and ETR (or Local ETA), provided an electronic signature meets certain conditions prescribed by that legislation and specified above, electronic signatures are deemed as enforceable and admissible as handwritten signatures. However, if the authenticity or integrity of the electronic signature is challenged, the party seeking to enforce the electronic signature may need to produce further evidence to establish its validity.

eSignature Legality Guide

The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The information presented on this website may not reflect the most current legal developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues and jurisdictions.

Electronic signatures are legally recognized in Australia and are provided for by the Electronic Transactions Act 1999 (“ETA”) and its implementing regulations, the Electronic Transactions Regulations 2020 (“ETR”), at the federal level as well as by each State and Territory.

E-Signature Legality Summary

Notable Changes in E-Signature Law Since 2020

Types of Permitted Electronic Signature

Types of Non-Permitted Electronic Signature

Documents That May be Signed Electronically

Further Guidance

Seminal Case Law

The ETA specifically sets out requirements for valid electronic signature, consent, and retention of documents for the purposes of Australian Commonwealth law. Generally, these signing, consent, and retention requirements apply when dealing with Commonwealth government bodies or when transacting under certain Commonwealth legislation. Because of the federal nature of Australia, the States and Territories also have their own electronic signature laws (“Local ETA”), which largely follow the ETA, but include different exemptions and limitations. The relevant Local ETA will govern any documents being submitted to the State/Territory government and their instrumentalities.

None

The ETA does not define an electronic signature per se, but does state that an electronic signature is legal and enforceable if it meets the following three requirements, which also apply under each Local ETA:

A method (e.g., the type of electronic signature) is used to identify the signer and to indicate the signer’s intention to sign the document;
The method used is as reliable as appropriate for the purposes of the communication or is proven to identify the person and indicate their intention; and
The signer consents to the method used, with such consent allowed to be express or inferred from the circumstances.

An electronic signature meeting the requirements of ETA (or Local ETA) may be required in certain use cases involving the government or where required by law. Under general common law, electronic signatures that do not meet ETA or Local ETA requirements may still be enforceable. In common law cases, courts likely will still use the ETA requirements as a baseline for what constitutes a valid signature. Courts will focus on the existence of clear and sufficient evidence of the agreed upon terms and conditions and of an intention by both parties to be contractually bound (plus an absence of fraud).

The following documents or types of transactions typically do not allow an electronic signature, and instead, require an ink signature (though the exemptions may vary per each State or Territory):

Documents that are required to be witnessed
Deeds (other than in Victoria, NSW, and Queensland where electronic deeds are now contemplated by the legislation)
Powers of attorney
Wills
Court documents (courts have a separate system for electronic filing where applicable)
Documents to be personally served.

The following transaction types generally are eligible for the use of electronic signatures:

HR
Procurement
NDAs (provided it is an agreement, not a deed)
Software licensing
Healthcare
Insurance
Education
Life Sciences
Technology Sector
Documents to be recorded, though it depends on where they are to be recorded

Also note that the ETA and local ETA prescribe specific record keeping requirements.

Using electronic signatures for the below categories or documents is not necessarily prohibited but additional considerations may be relevant or specified requirements will need to be met to allow for successful execution or usage:

Corporate resolutions
Banking
Lending
Chattel paper
Consumer transactions
Government filings
Documents to be notarized

While the use of electronic signatures is not prohibited for the following transaction types, caution should be exercised before using electronic signatures for the below listed transactions:

Corporate Resolutions
Banking
Lending
Chattel Paper
Consumer Transactions
Government Filings
Real Estate; and
Documents to be Notarized

Some practical considerations to improve the enforceability of a document signed electronically may include:

Where documents are not required to be in the form of a deed, converting them to agreements (by reviewing the wording of the document and requiring some form of consideration);
Requiring the parties to require consent to (and maintaining records of that consent):
- The use of electronic communication for compliance with statutory requirements to give information;
- The use of electronic signatures to execute a contract; and
If any party is a corporation, inserting into the agreement:
- A warranty by the signer that they are duly authorized to sign the contract electronically; and
- If requested, a condition that evidence of authority to execute the contract be provided within a certain period.

Australia is currently considering acceding to the United Nations Convention on the Use of Electronic Communications in International Contracts.

Williams Group Australia Pty Ltd v. Crocker [2016] NSWCA 265

Since Australian courts generally accept that electronic signatures are valid, there is no seminal case articulating the courts’ approach to electronic signatures. Instead, courts focus on the evidentiary weight of the validity of signatures much the same way as they would consider the validity of a document if a document were executed in “wet ink” and had been alleged to have been forged or signed without proper authority. Below is an example of a case that demonstrates the potential issues and risks with electronic signatures, and witnessing of guarantees using an electronic document signing platform, though it does not comment on the validity of electronic signatures and attestations in the context of a deed.

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What constitutes an electronic signature in Australia?

Does Australia recognize a SignNow electronic signature as a valid type of electronic signature?

Do parties need to consent to use electronic signatures in Australia?

What are the key factors pertaining to the enforcement of electronic signatures in Australia?

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eSignature Legality Guide

Williams Group Australia Pty Ltd v. Crocker [2016] NSWCA 265

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