Australia Electronic Signature Compliance Explanation

Are electronic signatures legal in Australia? What laws primarily regulate electronic signatures?

Electronic signatures are legal in Australia, and Australian electronic signatures are primarily regulated by the Electronic Transactions Act 1999 (hereinafter referred to as “ETA”) and its implementing regulations, the Electronic Transactions Regulations 2020 (hereinafter referred to as “ETR”).

What are the validity requirements for electronic signatures in Australia?

ETA does not define electronic signatures themselves, but it clearly states that if an electronic signature meets the following three requirements, it is legal and enforceable. These requirements also apply to each local ETA:

1. A method (e.g., the type of electronic signature) is used to identify the signatory and indicate the signatory’s intention to sign the document;

2. As reliable as possible for the purpose of the transaction or document to be signed; or proven by facts (either by itself or together with other evidence) to identify the signatory and their intention to sign the relevant document or transaction;

3. The signatory agrees to the method used, and such agreement can be expressly given or inferred from the specific circumstances.

In certain use cases involving government or legal requirements, electronic signatures that comply with ETA (or local ETA) requirements may be required. Under common law, electronic signatures that do not meet ETA or local ETA requirements can still be enforced. In common law cases, the court may still use ETA requirements as a baseline for constituting a valid signature. The court will focus on whether there is clear and sufficient evidence to prove the terms and conditions agreed upon by both parties

In which scenarios can electronic signatures be used in Australia?

Electronic signatures can be used in the following documents or scenarios, but are not limited to:

• Human resources
• Procurement agreements
• Confidentiality agreements (provided they are agreements rather than contracts)
• Software licensing
• Healthcare
• Insurance
• Education
• Life sciences
• Technical department documents
• Documents that need to be recorded, although this depends on the location of the record

In which scenarios should caution be exercised when using electronic signatures in transactions in Australia?

Although the following types of transactions do not prohibit the use of electronic signatures, caution should be exercised when using electronic signatures in the following transactions:

• Corporate resolutions
• Banking
• Lending
• Personal property documents
• Consumer transactions
• Government documents
• Real estate
• Documents that require notarization