Business Law: 08 December 2022
The rise of various digital platforms and software offering digital signatures has forced governments to update the laws around their use. In most instances, so long as certain minimum standards are met, they are legally valid and binding.
All Australian jurisdictions have enacted largely uniform Electronic Transactions Acts (ETAs). The principal purposes of these Acts include to:
The Commonwealth ETA applies only to transactions to which a Commonwealth law applies. The State and Territory Acts apply in their respective jurisdictions. They do not apply to all legislation or transactions. Each ETA or the Regulations made under it lists legislation or types of transactions that are exempt from the Act. For example:
In general terms, an electronic signature will be deemed to be effective under an ETA if the following conditions are satisfied:
Cloud-based signature platforms such as DocuSign would be considered to satisfy the identification, reliability and consent requirements.
On 26 April 2021, the temporary measures permitting electronic execution and remote witnessing of transactions under the Victorian ETA, as well as statutory declarations, powers of attorney and wills, previously introduced in response to COVID-19, were made permanent. The Act also made permanent measures that expanded the categories of documents that can be electronically executed and permitted split executions under the ETA.
The amendments made by the Act included:
The Act includes an express acknowledgement that these amendments do not otherwise interfere with other laws applying to deeds or mortgages, whether in any other Acts or the common law, including the law of misrepresentation, unconscionability, undue influence or duress.
The Act also provides for witnessing by audio-visual link. The following requirements must be satisfied:
An example of this statement is:
The requirements for witnessing by audio-visual link under section 12 of the Electronic Transactions (Victoria) Act 2000 have been met.
A witness does not need to be physically located within Victoria unless they are otherwise required to be by another applicable Victorian law. For example, under the Wills Act 1997 and the Powers of Attorney Act 2014, the witness (and all other participants) must be located in Victoria during the witnessing process.
The procedures for witnessing by an audio-visual link in other legislation (e.g. The Oaths and Affirmations Act 2018, the Wills Act 1997 and the Powers of Attorney Act 2014) take precedence over the general witnessing provisions in the ETA.
The Corporations Amendment (Meetings and Documents) Act 2022 (Cth) (CA Act) made permanent the temporary relief measures allowing electronic signing and split execution of documents under s.127 of the Corporations Act (effective 23 February 2022).
Electronic execution and split executions (either with wet ink or electronic signature) are permitted. Electronic execution is also expressly allowed where an individual signs as an agent for the company under s.126.
Deeds may be in electronic form and signed electronically under s.127 or through and authorised agent under s.126 The appointment of an individual agent to sign a deed does not need to be by a deed. Delivery is not necessary if a company executes a document as a deed.
Witnessing of the affixation of a common seal can be done remotely. - but witnessing is not otherwise required under the Corporations Act.
Proprietary companies with a sole director and no company secretary can now execute documents under s.127, and a person may make assumptions about due execution under s. 129(5) and (6), where the signatory is the sole director (and there is no company secretary).
Electronic Transactions Regulations 2020 Electronic Transactions (Victoria) Regulations 2020