Title: Tech Neutrality in Australian Signature Law

Author: Dane Weber

EAP Date (approved for print): 5 February 2016

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Tech Neutrality in Australian Signature Law
DANE WEBER*
Abstract
Throughout civilisation, people have used various methods to signify or evidence their
intent, from oral agreements to the symbolic passing of dirt. Widespread literacy has
enabled signatures to become the de jure method of evidencing this intention. As
technology has improved, the methods for giving one’s signature have become widely
varied. What is the definition of a ‘signature’, and how is that reflected in the current
state of technology? What about the future? Should specific technology be incorporated
into law? This paper explores those questions to examine the flexibility of Australia’s
signature laws, and suggests issues for reform.

Introduction
There is perhaps no other concept as ubiquitous in law as that of the humble
signature. In almost every area of law the signature is integral; and if not
integral in substance (such as evidencing agreement to contracts), it is integral
in the process of the administration of law (such as in Court or for Government
department forms). Given the importance of signatures, it is surprising that
there is a dearth of judicial or academic material on what a signature ‘is’.1 The
signature is simply taken for granted as a personal mark someone makes
against something.
The question of what a signature ‘is’ is of increased importance with the
digitisation of human communication. Legal instruments must be applicable in
cyberspace, and the law must adapt as technology changes; technology will not
wait for the law.
The Electronic Transactions Acts were enacted by all Australian jurisdictions
around the turn of the millennium.2 This legislation is designed to address both

*

1

2

LLM (IP&TechLaw), GDLP, LLB (Hons). Solicitor of the Supreme Court of
Queensland and the High Court of Australia.
Sharon Christensen, William Duncan and Roushi Low, ‘The Statute of Frauds in the
Digital Age — Maintaining the Integrity of Signatures’ (2003) Murdoch University
Electronic Journal of Law 44, [1].
Electronic Transactions Act 1999 (Cth); Electronic Transactions Act 2000 (NSW);
Electronic Transactions (Queensland) Act 2001 (Qld); Electronic Transactions Act 2000
(SA); Electronic Transactions Act 2000 (Tas); Electronic Transactions (Victoria) Act 2000
(Vic); Electronic Transactions Act 2011 (WA); Electronic Transactions Act 2001 (ACT);
Electronic Transactions (Northern Territory) Act 2000 (NT).

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writing and signatures in the digital age. Tracing back through history, we can
find examples of the telex3 and fax machine4 challenging signature law. If we
go back far enough in Britain to a time where literacy belonged to the privileged
few, we arrive at a time prior to the Statute of Frauds 1677 (Imp) 29 Cha 2, c 3
(‘Statute of Frauds’) where even the law itself was forbidden from being
committed to writing.5
Signature law has developed over the centuries along with communications
technology. It is imperative that different jurisdictions, in an increasingly
connected and technologically-enabled world, address the validity of
signatures. The law should be technology-neutral in application to address
current and possible future technologies.
This paper will address the purpose of signatures, before exploring the
Australian approach to signature law in the digital age. The paper will
demonstrate that the Australian approach is one of the most flexible
approaches to signature law, but one that requires amendments to match some
international approaches to technological neutrality.

1

The History and Purpose of Signatures

In 1677, the Statute of Frauds was enacted. The major effect of the Statute of
Frauds was to require written agreement for some contracts, such as land
contracts. Before the Statute of Frauds, a ‘feoffment’6 of freehold land was often
transferred through the ceremony of ‘livery of seisin’. This involved the seller
(feoffor) giving the purchaser (feoffee) some twigs or dirt off the land to
symbolise its transfer, often in the presence of witnesses.7 This is now no longer
law in many jurisdictions.8

3

See, for example, Clipper Maritime Ltd v Shirlstar Container Transport Ltd (the
‘Anemone’) [1987] 1 LR 546, 554.

4

See, for example, In Re A Debtor (No 2021 of 1995) [1996] 2 All ER 345, 351.

5

Charles Davidson and Joshua Williams, ‘Conveyancing, its Early History and
Present State’ (1845) 1 Law Review & Quarterly Journal of British & Foreign
Jurisprudence 382, 384.

6

That is, an absolute transfer of land from one party to another.

7

8

Conde B McCullough and John R McCullough, The Engineer At Law: A Resumé of
Modern Engineering Jurisprudence (The Collegiate Press Inc, 1946) 338-9. See also the
apocryphal writings of Widukind of Corvey. ‘Legend goes that a Thuringian,
admiring a Saxon’s golden torc, thought himself clever by trading some dirt from
Thuringia for the Saxon’s jewellery. The Saxon happily accepted… and thus Saxony
conquered Thuringia, effecting livery of seisen by force.’
See, for example: Property Law Act 1974 (Qld).

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1.1 When Signatures Are Required
Most requirements are legislative and inherit the old provisions of the Statute
of Frauds or involve governmental processes. For example, in Queensland, the
successor to the Statute of Frauds is the Property Law Act 1974 (Qld). Section 56
of that Act requires guarantees to be in writing and signed, and section 59
requires contracts for the sale of land to be in writing and signed.9 Less common
is the requirement for the sale of goods to be in writing and signed for
transactions over $20. This does not exist in any Australian jurisdictions except
Tasmania and Western Australia.11
10

Wills also require signatures: for example, Queensland’s Succession Act 1981
(Qld), section 10.12 Trusts, on the other hand, can be made as a bare trust,
requiring merely intention, subject matter, and objective.13 However, if they
deal with property or are made as testamentary trusts, they must be in writing
and signed in accordance with the respective governing property and wills
statute.14
Statutory declarations and affidavits also require signatures in addition to the
administration of an oath or affirmation: for example, Queensland’s Uniform
Civil Procedure Rules 1999 (Qld),15 the Federal Circuit Court Rules 2001 (Cth)16 and
the electronic filing initiatives of the Federal Court, Family Court, and Federal
Circuit Court of Australia.

1.2 The Signature’s Purpose
It has been stated, at least in the context of the Statute of Fraud’s requirements
for signatures, that a signature’s purpose is that it:
• …identifies the signature;

9

See also for example Conveyancing Act 1919 (NSW), s 23C; Law of Property Act 1936
(SA), s 29; Conveyancing and Law of Property Act 1884 (Tas), s 60; Property Law Act 1958
(Vic), s 53; Property Law Act 1969 (WA), s 34.

10

Sale of Goods Act 1896 (Tas), s 9.

11

Sale of Goods Act 1895 (WA), s 4.

12

See also for example: Wills Act 1968 (ACT), s 9; Succession Act 2006 (NSW), s 6; Wills
Act (NT), s 8; Wills Act 1936 (SA), s 8; Wills Act 2008 (Tas), s 8; Wills Act 1997 (Vic), s
7; Wills Act 1970 (WA), s 8.

13

Michael Evans, Equity & Trusts (LexisNexis Butterworths, 2 ed, 2009) 383.

14

Ibid.

15

Uniform Civil Procedure Rules 1999 (Qld), r 432.

16

Federal Circuit Court Rules 2001 (Cth), r 15.26.

nd

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• evidences the party’s approval of the contents of the document; and
• provides integrity for the contract between the parties ensuring the
reliability and admissibility of the parties’ agreement in a court.17
In sum, a signature is designed to evidence a party’s intention in the context of
which it is signed.
This ‘intention’ may be multi-faceted, and does not have to relate to the original
person who signs a document. When those original signatures require
attestation by a witness (who affixes their own signature to evidence the
authenticity of the original signature, and thus the original signor’s intention
or approval of its contents,18 as with, for example, deeds),19 ‘intention’ can take
many forms. For example:
• Transfers of land. In Queensland, contracts for the transfer of land must
be in writing and signed,20 but the actual instruments used to register
transfers of land must also be witnessed.21 Beyond authentication, the
witness must also ensure that the person whose signature they are
witnessing is entitled to sign the instrument. This is to prevent the
registration of forged documents.22
• Wills. Wills are notable for often requiring not one, but two witnesses to
be present.23 Apart from the obvious need for protection, given the

17

18

Sharon Christensen, William Duncan and Roushi Low, ‘The Statute of Frauds in the
Digital Age – Maintaining the Integrity of Signatures’ (2003) Murdoch University
Electronic Journal of Law 44, [9].
See for example Tim Travers, ‘On-Line Signing Made Simple’ (2004) 1 Digital
Evidence & Electronic Signature Law Review 44, 45; William Blackstone, Commentaries
on the Laws of England (University of Adelaide, 1 & 2 ed, 2014) Book 2, Chapter
20<http://ebooks.adelaide.edu.au/b/blackstone/william/comment/complete.ht
ml> (accessed 23 November 2015).
st

19

20

21

22

23

nd

Property Law Act 1974 (Qld), s 45(2).
Property Law Act 1974 (Qld), s 59; Imperial Acts (Substituted Provisions) Ordinance 1986
(ACT), sch 1; Conveyancing Act 1919 (NSW), s 54A; Law of Property Act (NT), s 10; Law
of Property Act 1936 (SA), s 26; Conveyancing and Law of Property Act 1884 (Tas), s 36;
Property Law Act 1958 (Vic), s 53; Property Law Act 1969 (WA), s 33.
Land Title Act 1995 (Qld), s 161; Land Titles Act 1925 (ACT), s 73; Real Property Act
1900 (NSW), s 46; Land Title Act (NT), s 159; Law of Property Act 1936 (SA), s 41;
Conveyancing and Law of Property Act 1884 (Tas), s 63; Transfer of Land Act 1958 (Vic),
s 45; Transfer of Land Act 1893 (WA), s 145.
Sharon Rodrick, ‘Forgeries, False Attestations and Impostors: Torrens System
Mortgages and the Fraud Exception to Indefeasibility’ (2002) 7 Deakin Law Review 97,
102.
Succession Act 1981 (Qld), s 10(4); Wills Act 1968 (ACT), s 9; Succession Act 2006
(NSW), s 6; Wills Act (NT), s 8; Wills Act 1936 (SA), s 8; Wills Act 2008 (Tas), s 8; Wills
Act 1997 (Vic), s 7; Wills Act 1970 (WA), s 8.

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nature of the document, in divesting one’s estate upon death, it has been
suggested that this impresses the solemnity of the moment upon the
testator, ensuring that the will is not being entered into haphazardly or
without the capacity to form the requisite intent.24 Attestation in this
regard has said to be evidentiary, cautionary and protective.25
• Powers of Attorney. Given the nature of handing one’s personal power
over to another, the intention of attestation is protective, often forcing
the witness to ensure that the person making a power of attorney has the
capacity to understand what is being entered into.26
• Affidavits. Like a will, the purpose of attestation for an affidavit is to
impress upon the deponent the solemnity of the moment by binding the
deponent’s conscience under penalty of perjury.27 This is because an
affidavit is evidence which is given under oath,28 and the witness must
administer this oath.29
The fact that attestation exists through the use of signatures gives weight to
‘intent’ being of greater general applicability than ‘approval’. The more flexible
use of evidencing ‘intention’ rather than ‘approval’ is perhaps of more
universal effect. Consider Romer LJ’s words in Goodman v J Eban:30
The first reaction of many people, I think, would be that the impression
of a name produced by a rubber stamp does not constitute a signature,
and, indeed, in some sense, is the antithesis of a signature. When,
however, the matter is further considered in the light of authority and
also of the function which a signature is intended to perform one arrives,
I think, at a different result.
The best example of where intention does not manifest is the provision of a
celebrity autograph to a fan. Such an autograph does not evidence any

24

25

26

27

Andrew Lang, ‘Formality v Intention – Wills in an Australian Supermarket’ (1985)
15(1) Melbourne University Law Review 82, 88.
John H Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88(3) Harvard
Law Review 489, 492-5.
Powers of Attorney Act 1998 (Qld), s 44(4), (6); Powers of Attorney Act 2006 (ACT), s 22;
Powers of Attorney Act 2003 (NSW), s 19; Powers of Attorney Act (NT), s 6; Powers of
Attorney and Agency Act 1984 (SA), s 6; Powers of Attorney Act 2000 (Tas), ss 9, 30;
Powers of Attorney Act 2014 (Vic), ss 33, 36; Guardianship and Administration Act 1990
(WA), s 104.
See, for example: R v Borg (Ruling No 1) [2012] VSC 26, [46]-[58].

28

For an example of the form of declaration, see Oaths Act 1867 (Qld), s 14.

29

Queensland Law Reform Commission, The Oaths Act, Report No 38 (1989), 40.

30

Goodman v J Eban [1954] 1 QBD 550, 563.

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‘approval’ or ‘intent’ in relation to whatever was autographed. It is merely
decorative.
Thus the intention of the signatory is integral to deciding whether any method
to create a signature will be treated as one. The following words from the US
case of Howley v Whipple31 are astonishingly accurate in their premonition of
today’s signature laws:
It makes no difference whether that operator writes the offer or the
acceptance … with a steel pen an inch long attached to an ordinary
penholder, or whether his pen be a copper wire a thousand miles long.
In either case the thought is communicated to the paper by use of the
finger resting upon the pen; nor does it make any difference that in one
case common record ink is used, while in the other case a more subtle
fluid, known as electricity, performs the same office.
In 1869, so long as ‘the thought [was] communicated’, the way in which it was
done was immaterial. Of course, that decision could never have contemplated
the existence of computers or the internet, but it did recognise how ‘intent’ was
the rationale behind the authority of the signature, rather than the form it took.
As will be discussed below, the importance of ‘intent’ is reinforced by the
approach to other methods of signing by the courts and legislature.

1.3 Other Methods of Signing
One example of another method of signing is the way which bodies corporate
under Australian law may execute documents with a common seal.32 Apart
from common seals for bodies corporate, a seal or stamp has also been used as
a personal signature.33
Messages sent through telex were also said to constitute signatures in writing
for the purpose of the Statute of Frauds,34 and the ‘tested telex’ also satisfied

31

Howley v Whipple, 48 NH 487, 488 (1869).

32

Corporations Act 2001 (Cth), ss 123, 127; Body Corporate and Community Management
Act 1997 (Qld), ss 34, 59.

33

See, for example, Goodman v Eban [1954] QB 550 which involved the use of a rubber
stamp embossed with the name of the signatory firm on a solicitor’s bill, and Jenkins
v Gaisford, Re Jenkins (decd)’s goods (1863) 164 ER 1208 in which a codicil of a will was
stamped by an agent using an engraving as the signor was infirm and could not do
so himself.

34

See, for example, Clipper Maritime Ltd v Shirlstar Container Transport Ltd (the
‘Anemone’) [1987] 1 LR 546, 554 where ‘…the answerback of the sender of a telex
would constitute a signature, whilst that of the receiver would not since it only
authenticates the document and does not convey approval of the contents’.

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those requirements,35 which was a primitive form of a ‘digital signature’ which
will be discussed later. Faxes can also have the effect of a signature,36 as well as
simply clicking ‘I agree’ on a website.37
Emails have consequently been found to constitute signatures at times. The UK
case of J Pereira Fernandes SA v Mehta38 involved a guarantee, which was
required to be signed. The header of the email indicated that it was from the
respondent’s email address, which the Court held satisfied section 4 of the
Statute of Frauds, which requires a memorandum of note in writing. However,
the Court found that the header itself did not constitute a signature, as it was
automatically inserted by the software, and not at the respondent’s instruction.
The Court concluded that, had the respondent put his name in the text of the
email (or even a scanned image of his handwritten signature), then such an
action would sufficiently have indicated his intention to be bound.39
Aside from technology being used in place of signatures, there exists specific
signature technology. This technology not only ‘signs’ the document, but also
verifies the authenticity of the signor and ensures the integrity of the document.

35

See, for example, Standard Bank London LTD v The Bank of Tokyo [1995] 2 LR 169, 175
where the tested telex also encoded the telex so that only the intended recipient
could read it.

36

See, for example, In Re A Debtor (No 2021 of 1995) [1996] 2 All ER 345, 351 where
Laddie J made the following observation:
Once it is accepted that the close physical linkage of hand, pen and paper is
not necessary for the form to be signed, it is difficult to see why some forms
of non-human agency for impressing the mark on paper should be acceptable
while others are not.
…it is possible to instruct a printing machine to print a signature by
electronic signal sent over a network or via a modem. … The fax received at
the remote station may well be the only hard copy of the document. It seems
to me that such a document has been ‘signed’ by the author.

37

See, for example, Christopher Tay, ‘Contracts, Technology and Electronic
Commerce: The Evolution Continues’ (1998) 9(2) Journal of Law, Information and
Science 177. It is possible to envision, for example, automated systems between
businesses monitoring stock and automatically ordering and shipping stock,
entering into contracts without human intervention.

38

J Pereira Fernandes SA v Mehta [2006] EWHC 813 (Ch) 1543.

39

Ibid 1552 [30].

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The signature technology often the subject of regulation40 is public key
cryptography.41
Public key cryptography requires the involvement of trusted third-parties to
maintain a database of ‘public keys’, called ‘Public Key Infrastructure’ (‘PKI’).42
In this system, there exist corresponding ‘private’ keys and ‘public’ keys. These
are simply digital files created by mathematical formulae, and the private and
public keys are related through those formulae. When a document is encrypted
with a public key, only its corresponding private key can decrypt it, and vice
versa. The chances of mathematically deriving one key from its partner is
practically impossible, depending on the strength of encryption.
Despite its regulation and development as secure signature technology,
empirical research on the usage of PKI in Australia reveals a large amount of
ignorance on the use of digital signatures from both consumers and business.43
In general parlance, the terms ‘electronic’ and ‘digital’ signatures are often used
as synonyms, however there is a distinction in the technology used. In many
cases an ‘electronic’ signature is merely a digitised copy of a physical signature,
or another analogue such as typing one’s name. The signatures sent by fax
machines and telex are analogous. However these forms of electronic signature
will generally not evidence whether:
• … the party placing the signature on the document was actually the
person stated;
• … the person placing the signature on the document actually approves
of its terms; or whether

40

41

42

43

See, for example, United Nations Commission on International Trade Law, Model
Law on Electronic Signatures, GA Res 80, UN GAOR, 6th Comm, 56th sess, Agenda Item
161, UN Doc A/RES/56/80 (24 January 2002). Please also see Kate Reid, ‘Contractual
Risk and Internet Commerce’ (2000-2001) 11(2) Journal of Law, Information and Science
133 for a discussion around the time the Electronic Transactions Acts were being
implemented in Australia, and how regulation for PKI was necessary given the
prevalence of Electronic Data Interchange (EDI) in electronic business transactions.

From here on, a reference to a ‘digital signature’ is a reference exclusively to public
key cryptography, whereas a reference to an ‘electronic signature’ is a wide term to
encompass all signatures in electronic form.
For an explanation of the key concepts of cryptography, refer to Roger Clarke,
‘Cryptography issues in plain text’ (1996) 3(2) Privacy Law & Policy Reporter 24, 2427.
Aashish Srivastava, ‘Businesses’ Perception of Electronic Signatures: An Australian
Study’ (2009) 6 Digital Evidence and Electronic Signature Law Review 46, 48-49.

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Tech Neutrality in Australian Signature Law

• … the signature was not forged, placed on the document by another
party, or removed from another document to be placed on the different
document.44
Conversely ‘digital’ signature can, in the appropriate circumstances, evidence
those three points. For the first and third points, only the person with the
private key can attach their digital signature, and the digital signature can
verify the document’s integrity. For the second point, this is a matter of fact; a
digital signature can be used to approve of its terms, however it can also be
used simply to ensure authenticity.

1.4 The Need for Technological Neutrality
The acceptable form of a signature has expanded significantly through history
and it is not possible to fully predict further evolution of signature technology.
Indeed there are currently a range of technologies that intend to make
signatures electronic, such as biometric data and systems which capture the
signatory’s handwritten signature metrics.45
With the internet allowing global communication and the world opening up
into a global marketplace, the law relating to electronic signatures must be
neutral to technology. The law should provide for the freedom of signatories
to evidence their intention in any way they think is practical, necessary, or
otherwise appropriate for the purposes of signing, with appropriate regulation.
If the law was to choose one signature technology over another it would impact
on freedom to contract, create technological monopolies or create a ‘retarding
effect’ on technological development.46
In response to those problems international and domestic law has moved
towards ‘technological neutrality’. The Commonwealth Government defines
that term as follows:
Technology neutrality means that the law should not discriminate
between different forms of technology — for example, by specifying
technical requirements for the use of electronic communications that are
based upon an understanding of the operation of a particular form of
electronic communication technology.47

44

45

46

47

Sharon Christensen, William Duncan and Roushi Low, ‘The Statute of Frauds in the
Digital Age – Maintaining the Integrity of Signatures’ (2003) Murdoch University
Electronic Journal of Law 44, [17].
Chris Reed, Internet Law: Text and Materials (Cambridge University Press, 2 ed, 2004)
145.
nd

See, for example, Wolfgang Drechsler and Vasilis Kostakis, ‘Should Law Keep Pace
With Technology? Law as Katechon’ (2014) 34(5-6) Bulletin of Science Technology
Society 128.
Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).

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Australian Approach

The Australian approach to electronic signatures is embodied in the (roughly)
uniform Electronic Transactions Acts (‘ETA’) of the Commonwealth48 and each
State49 and Territory.50 The requirements are roughly similar between each
jurisdiction and the legislation is intended to be technologically neutral.51 These
Acts, in summary, provide that an electronic signature will meet a requirement
for a signature (or will apply consequences for the absence of a signature) if:
1. A method was used to:
a. Identify the signor; and
b. Indicate the signor’s intention or approval of the information
communicated;
2. And the method:
a. Having regard to all relevant circumstances and any relevant
agreement, was reliable as was appropriate for which the information
was communicated;52 or
b. Proved in fact to have identified or indicated the signor and their
intention or approval, by itself or together with further evidence;
3. And the person to whom the signature is required to be given gives
their consent.

48

49

50

51

52

Electronic Transactions Act 1999 (Cth).

Electronic Transactions Act 2000 (NSW); Electronic Transactions (Queensland) Act 2001
(Qld); Electronic Transactions Act 2000 (SA); Electronic Transactions Act 2000 (Tas);
Electronic Transactions (Victoria) Act 2000 (Vic); Electronic Transactions Act 2011 (WA).
Electronic Transactions Act 2001 (ACT); Electronic Transactions (Northern Territory) Act
2000 (NT).
Sharon Christensen, ‘Formation of Contracts by Email – Is It Just the Same as the
Post?’ (2001) 1(1) Queensland University of Technology Law and Justice Journal 22, 2324.
This is almost identical to Article 6(1) of United Nations Commission on
International Trade Law, Model Law on Electronic Signatures, GA Res 80, UN GAOR,
6 Comm, 56 sess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002).
th

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Tech Neutrality in Australian Signature Law

The same legislative intention is embodied in the Commonwealth53 and each
State54 and Territory55 version of the ETA. Though where all jurisdictions’ subsections (2) (and Queensland’s section 15) do not affect the operation of another
law which requires anything specific, the Commonwealth version’s sub-section
(1)(c) is worded differently, in that if a signature is required to be given to a
Commonwealth entity, if there are information technology requirements, those
requirements must be met.
Each jurisdiction’s ETA also provides exceptions, whether under the relevant
Act,56 or under the associated Regulations57 (excluding the Australian Capital
Territory and Northern Territory). These exceptions most often relate to
documents involved in court proceedings or other documents requiring thirdparty attestation or authentication (for example, witnessing documents or
administering oaths or affirmations).
These definitions are very broad and, unlike the Model Law on Electronic
Signatures,58 are drafted for general application to be technologically neutral.

2.1 Technology and
Transactions Acts

Consent

in

Australia’s

Electronic

What will constitute an electronic signature in Australian law? This question
requires considering not only what technology will be accepted, but also how
consent will be dealt with.
A name typed at the end of a signature is common, and is considered to be an
electronic signature under the ETAs. In Faulks v Cameron,59 one party typing
‘Regards, Angus’ at the foot of an email was considered to satisfy the Northern
Territory ETA for the purposes of the De Facto Relationships Act (NT).

53

54

55

56

57

58

59

Electronic Transactions Act 1999 (Cth), s 10(1).

Electronic Transactions Act 2000 (NSW), s 9(1); Electronic Transactions (Queensland) Act
2001 (Qld), s 14(1); Electronic Transactions Act 2000 (SA), s 9(1); Electronic Transactions
Act 2000 (Tas), s 7(1); Electronic Transactions (Victoria) Act 2000 (Vic), s 9(1); Electronic
Transactions Act 2011 (WA), s 10(1).
Electronic Transactions Act 2001 (ACT), s 9(1); Electronic Transactions (Northern
Territory) Act 2000 (NT), s 9(1).
Electronic Transactions (Queensland) Act 2001 (Qld), sch 1.
Electronic Transactions Regulations 2000 (Cth), sch 1; Electronic Transactions Regulation
2012 (NSW); Electronic Transactions Regulations 2002 (SA); Electronic Transactions
Regulations 2011 (Tas); Electronic Transactions (Victoria) Regulations 2010 (Vic);
Electronic Transactions Regulations 2012 (WA).
United Nations Commission on International Trade Law, Model Law on Electronic
Signatures, GA Res 80, UN GAOR, 6th Comm, 56th sess, Agenda Item 161, UN Doc
A/RES/56/80 (24 January 2002).
Faulks v Cameron (2004) 32 Fam LR 417, 426 [64].

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In the High Court in Attorney-General (SA) v Corporation of the City of Adelaide,60
a legal practitioner was required to sign a certificate of validity for a Council
by-law. The certificate itself was not signed, but the legal practitioner stated his
name in the accompanying email which the certificate was attached to. Despite
the certificate being unsigned, the certificate ‘unequivocally signified’ the legal
practitioner’s view that the by-law was valid. The legal practitioner’s name in
the electronic document was taken to be a signature pursuant to the South
Australian ETA, thus satisfying regulation 19 of the Local Government (General)
Regulations 1999 (SA).
A relatively recent case of important note in the Commonwealth jurisdiction is
Getup Ltd v Electoral Commissioner (‘Getup’).61 Prior to the 2010 Federal Election,
advocacy group Getup ran a campaign to encourage people to vote. They
facilitated this by providing a website, ‘ozenrol.com.au’, where people could
register online to vote. The website provided a signature tool where one could
use a digital pen, finger or mouse. Ms Trevitt, the second applicant in Getup,
had enrolled in this way. A delegate of the Electoral Commissioner rejected this
application.
It was argued that the signature was compromised, by being comprised of
‘broken lines (or dots and dashes)’ or being pixelated, rendering it unreliable.62
However the Commissioner had previously accepted faxes, and scanned PDFs
and scanned JPEG signatures sent by email.63 In fact, documentation supplied
by the Electoral Commissioner suggested that claimants use the lowest
resolution of 100 DPI (dots per inch).64
Even though these files could easily be manipulated, the Electoral
Commissioner has been shown to accept them in the past.65 One may draw two
important conclusions. First, that faxes, emailing JPEG images, and an
electronic signature tool such as a stylus or other method will satisfy the
Commonwealth ETA for being as reliable as was appropriate66 — especially
compelling given the importance of voter registration. Second, that by
accepting these submissions in prior circumstances, the requirement for
consent, both for the electronic signatures and the method of their signing, was
fulfilled.67
Consent therefore need not be explicit. Consent can be implicit, whether it is
through tacit consent or prior acceptance. Thus, Australia’s approach appears

60

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 295 ALR 197, 205 [23][24].

61

Getup Ltd v Electoral Commissioner (2010) 268 ALR 797.

62

Ibid 801 [16].

63

Ibid 801 [17].

64

Ibid 801 [17].

65

Ibid 802 [21].

66

Ibid 802 [22].

67

Ibid 802 [21].

EAP 12

Tech Neutrality in Australian Signature Law

to be not only technologically neutral, but also provides that unless explicitly
requested or required by law to be in physical writing, an electronic signature
will suffice.

2.2 Digital Signatures in Australian Law
Currently, digital signatures and PKI technology remain untested by the
Australian courts. To the extent that the term ‘digital signature’ is dealt with, it
is done so in the context of being used interchangeably with ‘electronic
signature’. For example a signature block in an email may be referred to both
as a ‘digital’ and ‘electronic’ signature.68
However, that is not to say that digital signatures would be invalid under
Australia’s ETAs. The major issue in determining whether a digital signature
could be covered by the ETA is the issue of properly identifying the signor. As
has been rightly pointed out, how can a digital signature identify someone if
the parties have not met, especially if they are overseas?69 Consequently it can
be argued that, in those uncertain circumstances, digital signatures issued by a
certification authority in the context of PKI could provide the requisite
‘identification’70 and thus satisfy the ETA.

2.3 Gatekeeper and Electronic Conveyancing
Despite being unaddressed in Australian case law for general use, digital
signatures are considered valid in other areas of Australian law.
The first is the Gatekeeper71 PKI system. Gatekeeper is a PKI system for the
delivery of online government services, offering accreditation to those that
comply with its requirements, such as the Australian Post Office. Depending
on the level of security required, obtaining a Gatekeeper-compliant digital
signature requires a range of in-person identity checks with an accredited
service provider. However, this is for the provision of online government
services, not for the purposes of everyday signature use.72

68

69

70

71

72

Searene Whitsunday [2012] QBCCMCmr 585, [18]-[20]; Searene Whitsunday [2013]
QBCCMCmr 219, [26]-[34].
Yee Fen Lim, ‘Digital Signature, Certification Authorities and the Law’ [2002]
Murdoch University Electronic Journal of Law 29, [47].
Sharon Christensen, ‘Electronic Land Dealings in Canada, New Zealand and the
United Kingdom: Lessons for Australia’ (2004) Murdoch University Electronic Journal
of Law 37, [47].
Department
of
Finance,
Gatekeeper
(Public
Key
Infrastructure)
<http://www.finance.gov.au/policy-guides-procurement/gatekeeper-public-keyinfrastructure/> (accessed 1 December 2015).
Another example is ‘Auskey’, a digital signature that owners of an ABN may install
on their computer to verify access to government services on behalf of that business.

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Vol 24(1) 2015-2016

Secondly, electronic conveyancing is the area gaining the most ground in the
use of digital signatures. The Electronic Conveyancing National Law73 (the
‘National Law’) is the product of ARNECC, the Australian Registrars’ National
Electronic Conveyancing Council, comprising each Australian State and
Territory’s Land Registry officials. Currently, the National Law is in effect in
New South Wales, the Electronic Conveyancing (Adoption of National Law) Act
2012 (NSW) (‘the NSW Law’). The NSW Law adopts the National Law (see its
Appendix). South Australia’s law contains the National Law in its appendix,74
whereas the legislation in Queensland,75 Tasmania76 and Victoria77 adopt the
Appendix of the NSW Law as if it were enacted in their respective jurisdictions.
Section 7 of the National Law allows documents to be lodged electronically if
they are in the approved form, and also by means of an ‘ELN’, an Electronic
Lodgment Network. Section 13 simply provides that an ELN is a system for
lodging registry instruments. This will involve a PKI system of digital
signatures used by ‘subscribers’. ‘Subscriber’, under section 3(1), means ‘a
person who is authorised under a participation agreement to use an ELN to
complete conveyancing transactions on behalf of another person or on their
own behalf’. This would usually be a solicitor’s firm, whose identity and
particulars would need to be authenticated before they could participate in the
ELN and lodge documents electronically.
A digital signature of a subscriber under section 12 will be binding, regardless
of circumstances of fraud. This is the concept of ‘non-repudiation’, and a digital
signature can only be repudiated under section 12(4) if the signature was
created by someone not authorised, and if it was not by a failure to comply with
the participation rules or for a lack of reasonable care.
Most importantly, under section 9, a digitally-signed electronic document in
compliance with the National Law will satisfy all requirements for execution,
signing, witnessing, attestation or sealing. They are then equivalent to
handwritten signatures. In either case, the progressive implementation of
electronic conveyancing across Australia will normalise the use of digital
signatures in person-to-person dealings and provide a precedent for their legal
validity.
Once fully implemented, there will no doubt be disputes arising and thus case
law determining issues of digital signatures, without the term being used
interchangeably with electronic signatures.

73

74

ARNECC,
Electronic
Conveyancing
National
Law
<http://www.arnecc.gov.au/publications/electronic_conveyancing_national_law
> (accessed 1 December 2015).
Electronic Conveyancing National Law (South Australia) Act 2013 (SA), s 4.

75

Electronic Conveyancing National Law (Queensland) Act 2013 (Qld), s 4.

76

Electronic Conveyancing (Adoption of National Law) Act 2013 (Tas), s 4.

77

Electronic Conveyancing (Adoption of National Law) Act 2013 (Vic), s 4.

EAP 14

Tech Neutrality in Australian Signature Law

3

Technological Neutrality in Australian Signature Law

Australia’s ETA is fairly technologically-neutral, and roughly equivalent to the
US’s Uniform Electronic Transactions Acts (‘UETA’)78 which provides for similar
technological neutrality. The main difference is that whereas the US’s approach
is carte blanche approval, Australia’s ETA contains guidance on what
constitutes an electronic signature without being restrictive. By requiring the
identification of the signor and that the method used be as reliable as the
circumstances require, Australia’s approach remains technologically-neutral
while providing an assurance that electronic signatures will be valid if they
effectively comply with case law on what the purpose of a signatures is.
The guidance provided in Australia’s ETA is not only related to the signature,
but also to the consent of the other person. As technology is constantly
changing, one cannot expect everyone to be on a level playing field. If there
exists a ‘digital divide’79 between parties, the disparity in technology and the
use of an electronic signature in one way may not actually come to the other
person’s attention.
As an example of the lack of distinction between electronic and digital
signatures, consider the case of Searene Whitsunday.80 In that case, ‘digital
signature’ was used in reference to a signature block at the end of an email, and
signing the email rather than the form was an inconsequential ‘minor defect’.81
If ‘digital signature’ instead referred to encryption technology instead of a
signature block at the end of an email, consent must be given greater emphasis
in considering whether its use in lieu of a physical signature is a ‘minor defect’.
If the recipient was unaware of what encryption technology was, they could
not possibly consent to its use as a signature. Consent cannot be implicit if the
recipient of the signature is unaware of its existence.
Consent is integral to technological neutrality. If the method of signing is
widespread, such as with email, then consent can usually be implied by the
circumstances or by prior conduct. However, if the method of signing was
rarely used (such as biometric data involving fingerprints), consent must be
explicit. This demonstrates the importance of consent protecting those who
may not know, or may not have the technology, to accept certain methods of
signing.

78

79

Uniform Electronic Transactions Act (1999), National Conference of Commissioners
on Uniform State Laws.

As in a discrepancy between access to technology within society, or even societies.
See Mahesh Sharma, Digital divide still an issue for low income earners (26 February
2014) The Sydney Morning Herald <http://www.smh.com.au/digital-life/digitallife-news/digital-divide-still-an-issue-for-low-income-earners-2014022633i7l.html> (accessed 1 December 2015).

80

Searene Whitsunday [2013] QBCCMCmr 219.

81

Ibid [31].

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Vol 24(1) 2015-2016

Where Australia’s ETA is lacking in comparison to the US UETA is as regards
to the issue of witnessing (or notarising) documents, which the US UETA
allows the witnessing of electronic signatures. Australian law largely precludes
documents that require witnessing to be done electronically, unless provided
for by the government or deemed as such by law, such as in electronic
conveyancing. As an example of how this could be incorporated in Australia,
New Zealand’s Electronic Transactions Act 2002 (NZ)82 provides a working
example which combines Australia’s guidance on validity of signatures and
requirements for consent with the US UETA’s allowance for the witnessing of
electronic signatures.
It has been argued that, as the electronic signing of a document consists of
electrons within the computer that cannot physically be ‘witnessed’, that unless
there is a ‘trusted path’ an electronic signature cannot validly be witnessed.83
The argument is not particularly strong. It is akin to arguing that the witnessing
of a land transfer document is invalid because a Justice of the Peace was
distracted at the very moment that the pen made contact with the paper. The
circumstances and context are what is important to consent and the witnessing
of that consent by another.
One unaddressed factor in the Getup case was that the enrolment document
was required to be witnessed under section 98AA(2)(c) of the Commonwealth
Electoral Act 1918 (Cth). Unlike the State ETAs, the Commonwealth ETA’s
regulations do not provide a blanket ban on witnessing signatures. Whereas
the States have plenary power, the Commonwealth legislation is framed to its
prescribed heads of power.84
This is why the Schedule to the Electronic Transactions Regulations 2000 (Cth) is
specific in its exclusion of witnessing signatures. As section 98AA(2)(c) of the
Commonwealth Electoral Act 1918 (Cth) is not within the ambit of that Schedule,
it was not subject to the exclusion. As to why that particular provision of the
Commonwealth Electoral Act 1918 (Cth) was not excluded by the Electronic
Transactions Regulations 2000 (Cth), there does not appear to be any
documented reason.

82

83

84

Electronic Transactions Act 2002 (NZ), s 22, 23.
Adrian McCullagh, Peter Little and William Caelli, ‘Electronic Signatures:
Understand the Past to Develop the Future’ (1998) 21(2) University of New South
Wales Law Journal 452, 464-465.

Commonwealth of Australia Constitution, s 51. This is noted in the Explanatory
Memorandum to the Electronic Transactions Bill 1999 (Cth): an option was to enact a
comprehensive Commonwealth-level regime (which might have encountered
constitutional problems), or to work with the States on uniform legislation. The latter
path was chosen: any Commonwealth legislation must still be supported by a head
of power and cannot simply purport to deal with signatures solely; it must be related
to a specific head of power. See also Commonwealth of Australia Constitution, s
51(xxxix).

EAP 16

Tech Neutrality in Australian Signature Law

In Getup, only the issue of signing with a stylus was addressed, and it was
considered to satisfy the Commonwealth ETA.85 The issue of a stylus signature
being witnessed by another stylus signature, however, was not addressed. As
such, the Federal Court proceeded on the basis that the electronic signature was
valid, and considered that the Electoral Commissioner should have accepted
the form despite being electronically signed. The issue of a witnessing
electronic signature went by without comment; and was still considered as
reliable as was appropriate.
The fact that the Federal Court allowed such an electronic signature is
important in electronic signature case law. There are compelling reasons for
some documents still to be excluded, such as wills, powers of attorney, and
affidavits, as there are obligations upon the witness to do more than simply
sign after the original signor. However, there is no compelling reason why
deeds that people may choose to enter into from time to time should be
excluded. For example, under the Electronic Transactions (Queensland) Act 2001
(Qld), two people may not enter into a deed under section 45(2) of the Property
Law Act 1974 (Qld) because the deed must be witnessed. If instead two
companies entered into a deed and executed it under section 127(1) of the
Corporations Act 2001 (Cth) which only requires unwitnessed signatures of
office-holders, electronic signatures might be used for the very same purpose.
This gives a curious result where, if two people wished to enter into a deed,
they could register companies to execute the deed electronically, and that
would be valid.
A solution to this problem would be for the the Australian ETA to draw from
the US UETA and New Zealand ETA respectively. Specifically, the example set
by the US’s UETA, in allowing witnessing signatures to be electronic, and NZ’s
ETA assuring that those witnessing signatures must be as reliable as is
appropriate and that the consent of all parties is obtained. Although there may
be concerns with attesting to the integrity of documents and whether alteration
can be detected, the Electoral Commissioner has already set the precedent:
enrolment forms, when witnessed, will happily be accepted in low-resolution
formats and in formats that can easily be digitally-altered. Affidavits, however,
can be integrated into electronic filing: the US case of Doherty v Registry of Motor
Vehicles86 provides that, when a statement is made ‘under the penalties of
perjury’, the document is thus properly signed, including the requirement for
a witness to administer the oath. Whether a ‘click-wrap’ agreement could serve
such an end is worth further analysis.
The only area where Australian signature law lacks technological neutrality is
in relation to personal dealings is conveyancing. That is perhaps justified by
the peculiarities of Australia’s publically administered system of Torrens Title.
The Torrens System was devised to increase certainty and security in transfers

85

86

Getup Ltd v Electoral Commissioner (2010) 268 ALR 797.
Doherty v Registry of Motor Vehicles (Mass Dist Ct Suffolk Cry, No 97CV0050, 28 May
1997).

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Journal of Law, Information and Science

Vol 24(1) 2015-2016

of land in Australia.87 This was done by creating a central Register in each state,
in which each parcel of land is uniquely identified.88 Unlike other systems that
allowed the registration of deeds for unregistered land,89 the Torrens System
granted the concept of ‘indefeasibility’ of title for registered owners of land.90
Given the various land registries set up in Australia with very specific
requirements for registration, perhaps technological neutrality is not the best
goal for land transfers, as freedom of contract is necessarily restrained by those
requirements. To that end, the Electronic Conveyancing National Law has
enshrined the use of digital signatures within Australia’s Torrens Title
infrastructure.

Conclusion
Although the United States and New Zealand approaches are the most
accommodating of any new technology, the Australian approach also
recognises that such technology is going to be used in practice across society.
Guidelines on validity and reliability and the requirement of consent alleviate
the societal impacts of disparate access to technologies. It also accommodates
technology not yet in existence, or any technology that anyone wishes to use.
Although perhaps not as technologically neutral as those of the United States
or New Zealand, Australia’s electronic signature laws are still very flexible in
not providing legal validity for one type of signature technology over any
other.
The Australian Electronic Transactions Acts allows the validity of signatures to
be based on their merit; based on what is reliable as is appropriate in the
circumstances. However, through a constitutional quirk (and perhaps
oversight), witnessing signatures have been allowed uncontested in Federal
case law.
The law in relation to attestation and electronic signatures requires an analysis.
Loopholes in state legislation disallow people from freely entering into deeds
electronically, but allow companies to do so instead. For deeds at least, there is
no reason why Australian law should not follow the lead of the United States
and New Zealand by giving witness’ signatures the same treatment as original
signatures in the electronic era. Although policy reasons may exclude witness’
signatures for the transfer of powers of attorney, wills, and affidavits from

87

Samantha Hepburn, Australian Property Law (LexisNexis Butterworths, 2008) 553.

88

Ibid 555.

89

90

See, for example: Property Law Act 1974 (Qld), ss 241-249.
Samantha Hepburn, Australian Property Law (LexisNexis Butterworths, 2008) 558.
The effect of this is that once someone is the registered owner of land, short of there
being an equitable interest in the land or any fraudulent conduct, the owner’s title is
indefeasible. It cannot be contested. This is also the case for any encumbrances that
the land may be subject to, such as mortgages or easements. These may be registered
or unregistered, but if registered the encumbrances are granted indefeasibility.

EAP 18

Tech Neutrality in Australian Signature Law

being electronic, Australian law should adopt the United States and New
Zealand approach in judging them on whether they are ‘as reliable as is
appropriate’.
However, for wills, powers of attorney, and affidavits, care must be taken when
considering this venture; although the government is heavily involved in land
transfers and can set up an electronic system, no such government initiative
exists for wills or powers of attorney, which, as such, are not subject to such
extensive regulation. Until such time, affidavits and similar documents subject
to perjury can easily be accommodated into electronic filing systems of courts.
This will be an area of development in the law as governments and legal
systems become less reticent to take part in the digital age.

EAP 19