In most cases, the use of electronic signatures is legally binding in Australia. However, there are some important exceptions that you should be aware of.
Certain documents still require the use of “wet ink” signatures, though, new technologies and the need for e-signatures during the pandemic mean e-signatures are here to stay. It’s important to understand the law surrounding the use of electronic signatures.
This article, by our contract lawyer, explains when and how electronic signatures can be legally binding in Australia.
Key takeaways
- The Electronic Transactions Act 1999 (Cth) provides the national framework for their validity
- Each state and territory has corresponding legislation that aligns with the federal law
- Certain documents, such as real estate transactions and some family law documents, may still require traditional signatures
- Electronic signatures must meet three key criteria: identification of the signer, intent to sign, and reliability of the signing method
What Are Electronic Signatures?
An electronic signature is an electronic symbol, process, or mark used to indicate agreement to a document or contract. Common methods include:
- typing a name into a document
- using an image of a physical signature
- signing with a stylus or finger on a touchscreen
- using e-signature software like DocuSign or Adobe Sign
- biometric identification methods
Legal Framework for Electronic Signatures in Australia
Federal Legislation: Electronic Transactions Act 1999
The Electronic Transactions Act 1999 (Cth) ensures that transactions are not invalid simply because they occur electronically. For an electronic signature to be legally valid, it must:
- identify the person signing the document
- indicate the person’s intent to sign
- be reliable and appropriate for the circumstances
State and Territory Legislation
Each state and territory has enacted legislation that mirrors the federal framework:
Jurisdiction | Legislation | Key Requirements |
New South Wales | Electronic Transactions Act 2000 (NSW) | Consent to electronic signing must be obtained |
Victoria | Electronic Transactions (Victoria) Act 2000 | Identification, intent, and reliability are required |
Queensland | Electronic Transactions (Queensland) Act 2001 | Aligns with federal law; additional provisions for deeds and statutory declarations |
South Australia | Electronic Communications Act 2000 (SA) | Focuses on authenticity and intent |
Western Australia | Electronic Transactions Act 2011 (WA) | Requires reliable methods of identity authentication |
Tasmania | Electronic Transactions Act 2000 (Tas) | Similar to federal standards |
Australian Capital Territory | Electronic Transactions Act 2001 (ACT) | Mirrors federal requirements |
Northern Territory | Electronic Transactions (Northern Territory) Act 2000 | Aligns with federal law |
Exceptions: When Are Electronic Signatures Not Valid?
While electronic signatures are widely accepted, certain documents may still require traditional signatures. These include:
- real estate transactions and land transfers
- some family law documents (e.g. binding financial agreements)
- testamentary documents such as wills
- documents requiring notarisation or personal service
While some financiers still require wet ink signatures on independent solicitors certificates, many banks are now agreeing to the use of e-signatures.
Practical Tips for Using Electronic Signatures
To ensure the validity of an electronic signature:
- confirm that all parties consent to electronic signing
- use reliable e-signature software that meets legal standards
- ensure the method of signing identifies the signer and demonstrates their intent
- verify whether the document type requires additional formalities under state or federal law
Learn more about who can sign execution clauses in our article.
Frequently Asked Questions
What documents can be signed electronically?
Most contracts, agreements, and forms can be signed electronically, including:
- Non-disclosure agreements (NDAs)
- Employment contracts
- Commercial lease agreements
- Loan agreements
- Insurance policies
Wondering if your document can be signed electronically? Contact us to ensure your contracts are legally enforceable.
What documents cannot be signed electronically?
Documents that generally require traditional signatures include:
- Wills and testamentary documents
- Real estate transactions
- Documents requiring notarisation or personal service
Electronic signatures are increasingly used for tenancy and lease agreements across Australia. However, traditional signatures may still be required for property transfers or land title registrations.
Are electronic signatures valid across all Australian States and Territories?
Yes, electronic signatures are valid across all jurisdictions in Australia, provided they meet the requirements of the relevant legislation.
Make sure your business stays compliant with Australian electronic signature laws and get expert legal advice now.
Can deeds be signed electronically?
Yes, deeds can be signed electronically in some states, such as Queensland, provided they comply with specific legislative requirements.
In Queensland, under the Justice and Other Legislation Amendment Act 2021 (Qld), deeds can now be signed electronically in Queensland using an “Accepted Method.” This eliminates the need for physical signing and witnessing in most cases.
How can I ensure my electronic signature is legally enforceable?
To ensure enforceability, use a reliable signing method that identifies the signer, demonstrates intent, and is appropriate for the circumstances. It’s also important to obtain consent from all parties involved.
Australian courts have upheld the validity of electronic signatures in several instances, provided the legal requirements of identification, intent, and reliability are met. In Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119, the Queensland Supreme Court confirmed that an email exchange with an electronic signature, that included an offer and acceptance was sufficient to create a binding contract.
