Legislative Update - Electronic contracts and electronic signatures under Australian law

In the wake of the COVID19 pandemic, supplemental electronic signature legislation to the Commonwealth’s Corporations Act 2001 (“Corporations Act”) (s127) and the Commonwealth Electronic Transactions Act 1999 and its State and Territory equivalents (together, “ETAs”), that is focused on deeds and corporations has been passed to facilitate even broader use of electronic signatures by making it easier to electronically sign documents and witness the signing of documents by audio-visual link. These measures, however, currently:

• are only available for a temporary period;

• have not been passed in every State and Territory;

• only apply in certain circumstances;

• are inconsistent between States and Territories; and

• do not resolve all the uncertainties in this area.

Unless such legislation is converted in some form into permanent legislation, uncertainties will continue to apply to deeds and corporations. There is encouraging momentum that these temporary reforms are beginning to be extended and there are active discussions as to whether such reforms should be made permanent.

To help summarise the current state of the law of deeds and under the corporations act in light of the emergency legislation, the table below sets out at a high level whether the law of an Australian jurisdiction permits an agreement or deed to be in electronic form and electronically signed while the temporary COVID-19 legislation applies.

To help further promote these legal reforms related to deeds and the corporations act and assist in increasing business certainty, facilitating a greater ease of doing business, promoting online commerce and reducing transaction costs, the Australian Banking Association, together with other organisations including King & Wood Mallesons and DocuSign, are engaging with the Commonwealth and the States and Territories, to advocate for the temporary COVID-19 legislative reform becoming permanent. In addition, this group is urging the Australian government to explore ways to further harmonise the States and Territories laws to ensure greater consistency in laws applying electronic signing, witnessing and attesting of documents, throughout the country. For more details on these advocacy efforts, see the resources set out below.

Where to go to find out further information

• Promoting greater usage of electronic contracts and electronic signatures under Australian law

• General Australia electronic signature information

• King & Wood Mallesons

• Australian Banking Association - A new digital economy

• On-Demand Webinar - Electronic contracts and electronic signatures under Australian law – the case for reform

If you have any question please contact us.