Electronic Signing in Australia
Here is a round-up of the current state of electronic execution of documents, as at 16 February 2022.
Victoria has now (since 26 April 2021) passed legislation that permanently allows the electronic execution and witnessing of certain documents.
Under the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (VIC), deeds can be signed and executed in electronic form, and witnessed remotely via audio-visual link by individuals. Also, verification of identity can occur via an audio-visual link.
For certain documents, such as Powers of Attorney and Wills, there are additional requirements to satisfy regarding electronic witnessing, but these additional requirements do not apply to deeds.
New South Wales
The Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) was assented to on 29 November 2021 (“The Act”).
The Act amends the Electronic Transactions Act 2000 (NSW) to permanently allow documents to be witnessed in real time over an audio-visual link. Documents that may be witnessed by audio visual link include wills, powers of attorney, deeds and agreements. People outside of NSW may also use the remote witnessing provisions for documents required to be signed under or governed by NSW law.
The Act makes permanent the temporary electronic witnessing measures that expired on 31 December 2021.
Signing must be witnessed in real time and the witness must be reasonably satisfied they are signing the same document or an exact copy. The witness must also endorse the document with a statement that they have complied with these requirements and specify the method used to witness the signature.
The Justice and Other Legislation Amendment Act 2021 (Qld) (the Act) received royal assent on 24 November 2021, and will commence on a date to be fixed by proclamation. The Act permanently allows electronic signing of documents in some circumstances.
The Act provides that a Deed may now be prepared and signed by electronic means using the “Accepted Method” (refer below).
A deed signed by an individual no longer needs to be signed in the presence of a witness, and it does not have to be sealed. Also, a document may be signed in multiple counterparts provided each counterpart is a complete copy of the document.
The key requirements for a method of signing to conform to an “Accepted Method” are that the method must:
- identify the signatory, and their intention in relation to the document’s contents;
- be “as reliable as appropriate” for the circumstances or purpose of the document; and
- be consented to by all other signatories to the document (in the case of a multi-party document, such as a deed) – consent can be expressly stated, or implied.
Additional requirements apply to the electronic signing of affidavits and declarations.
In Western Australia, the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) allows witnessing of documents under certain legislation to take place by audio-visual means, at least until 31 December 2022. However, this legislation may not apply to deeds or agreements.
Under the Electronic Communications Act 2000 (SA), electronic signatures are generally considered to be legally binding if an appropriate reliable method is used to identify the person signing and their intention to accept or adopt the document, and the receiving party consents to the use of an electronic signature.
However, there has not really been any further legislation passed in South Australia in relation to electronic signing, or in relation to witnessing.
There is no currently applicable state legislation or regulations in Tasmania that impacts on the validity of electronic signing.
Australian Capital Territory
In ACT, the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT) permits witnessing and attestation of certain documents (including affidavits, Wills, health directions and powers of attorney, but not deeds or agreements) by audio-visual link.
There is no currently applicable state legislation or regulations in the Northern Territory that impacts on the validity of electronic signing.
Corporations Amendment (Meetings and documents) Bill 2021 was passed on the 10 February 2022, which make “permanent several temporary COVID-19 measures that enabled businesses to conduct ‘virtual’ or ‘hybrid’ meetings and allowed them to execute documents electronically”.