May 14, 2021 Catherine Lygoe

Use of Electronic Signatures in Australia for Binding Entities

Use of Electronic Signatures in Australia

Australian Law has recognised the use of electronic signatures as a valid method of binding entities to agreements since 1999 (the Electronic Transactions Act was enacted then – ETA).

Why do people seek signatures?

As evidence of agreement or accession to terms. A contract can be binding despite it not being signed, but sometimes the law will require signatures, or will imply certain things where a signature exists.

The ETA has two guiding principles:

  1. Paper and electronic transactions are treated equally by the law, and
  2. The law does not discriminate between different forms of technology used.

This means where normally a handwritten signature would be required/desired, an electronic signature can be used.

An electronic signature is valid as long as:

  • The method is used to identify the person and to indicate their approval of the transaction;
  • The method is as reliable as appropriate for the purpose of the transaction; and
  • The signature recipient consents.

There is no requirement for an “actual” signature. “Digital” signatures which identify individuals through codes and other forms of encryption are considered a form of electronic signature.

Therefore where a “signature” is required/desired, the signature can be “analogue” or “electronic”; and either can be relied upon.

LABform’s Multi-PIN eSignature: Legally-Binding with Superior Enforceability

The LABform Multi-PIN eSignature process ensures the highest levels of enforceability providing:

  • A clear, tamper-proof audit trail that tracks all signer actions
  • Secure encryption so information can be read and signed only by nominated signatories
  • Unique signatures created for each user
  • Industry-leading choice of advanced User Authentication methods, including email, date of birth and unique four-digit PIN
  • Date/Time and Internet Protocol Address stamping for every step in the process

Using this eSignature methodology, LABform has processed hundreds of thousands of applications across many Australian financial services organisations providing multiple products and services.

Supplementary analogue signature requirements

Legacy processes, upstream product providers and activities such as fund withdrawals and future account maintenance sometimes call for an analogue signature to be collected, or collected for the purposes of comparing to an original specimen.  LABform supports this by providing additional functionality such as:

  • Custom signature specimen Adobe PDF outputs that dynamically render out required signatory boxes
  • Request for upload of non-certified ID scans showing signatures (e.g. Australian driver license)
  • Product terms and conditions of the account onto an Adobe PDF signing page for supplementary execution by analogue signature within a prescribed timeframe to upload after completing the application (not necessarily holding the account fulfilment process)
  • Dynamic links within instructive emails to access uploading facilities (it is widely accepted that scanned analogue signature uploads negate the need for originals to be posted)

Exceptions to the recognition of eSignatures

Exceptions relate to particular statutes, the most notable of these is the Corporations Act – meaning that electronic signatures made pursuant to s.127 of that act will not get the benefits set out under that section.

This does not mean the underlying agreement is non-binding as a matter of contract law, but it does impact the benefits normally gained by analogue signature under s.127 of the Corporations Act.

If a signature is required as a matter of law (generally statute imposed) and that law is exempted from the ETA, then electronic signatures will not be an effective method of signature.

To illustrate the s.127 issue further, a company can be bound contractually even where it has not signed pursuant to s.127 of the Corporations Act, but anyone accepting an electronic signature for a company will not be able to rely upon the benefits of s.127 notwithstanding a statement that the party has signed pursuant to that section.

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