Canyou Electronic Signature
This information is general in nature. Please consult a lawyer for legal requirements when it comes to electronically executing (signing) documents.
Generally, there are three questions that must be explored before a document can be validly electronically signed.
1. What is the relevant law that requires the signature?
The person wanting to sign the document will need to look into what the relevant law that sets out the execution requirement for that document. For example:
- A will requires a signature of the testator and two witnesses.
- A residential tenancy agreement requires a signature in some states to be valid, but an inspection condition report does not in some states.
- Some contracts do not require a signature at all to be valid.
The onus to understand the signing requirements is the responsibility of the creator of the document.
2. Is an electronic signature permitted under that law?
Once the relevant law requiring the signature is determined, the creator of the document needs to be comfortable that that document can be electronically signed in order to be valid. For example, deeds in some states cannot be electronically signed. Land Titles documents in some states cannot be electronically signed either. Most contracts can be electronically signed.
Again, the onus of answering this question should be on the creator of the document.
3. If the answer to question 2 is “yes”, then satisfy the requirements in the relevant “ET Act”.
The “ET Act” is the “Electronic Transactions Act” that exists in every Australian State and Territory and at the Commonwealth Level (in total, 7 Acts). The ET Acts have provisions allowing signatures to be done electronically and fortunately, all 7 Acts are largely consistent in their requirements which are:
Identification - the parties to the document must be able to identify from the method of execution the person signing and confirm that the person signing intends to be bound by the information communicated - to this end, the signatory should include their name at the time of signature and there should be some note before signing which confirms that the person signing intends to be bound by the information communicated.
Reliability - the method used to sign must be reliable, which is objectively determined by considering all relevant circumstances and the purpose for which the signature is required - in other words, an electronic signature provider needs to reliably record the signature.
Consent - the parties to the document being electronically signed must agree to the document being signed electronically.
Please note also, there may be jurisdictional or global incompatibilities. For example, a Deed might be capable of valid electronic execution in NSW, but not WA, yet one party to the Deed might be located in each State. In this case it is up to the document to spell out which laws apply to that document. Similarly, a document might be capable of electronic execution in a jurisdiction in Australia, but not overseas.
For any questions and notices, please contact us at: API Software Pty Ltd t/a Canyou Software ABN 57 650 764 195 Email: email@example.comLast update: 2 Feb 2023 ©