09 October 2020

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

Parties are increasingly entering into transactions and contracts electronically
(whether by typing their names on documents via emails, signing with a stylus
on a tablet, clicking a click to accept button within a computer browser, or
electronic signing via a cloud platform such as DocuSign eSignature). These
methods are accepted by businesses and Australian courts alike as a valid,
secure and efficient way of doing business in Australia.

While Australian law generally and broadly recognises that contracts can be
reliably signed by electronic means, there currently are specific areas where
particular uncertainties remain: signing deeds, signing by companies and
witnessing. Such uncertainties in these areas largely arise because the law
unfortunately has not kept pace with the progress of technology. Many of
the rules around signatures were created when contracts were signed on
paper (eg “wet” signatures). Such rules continue to apply despite significant
technological advances that provide for signatures to be even more reliable
and secure through electronic means. These uncertainties impact the use
of electronic signatures by imposing certain unnecessary additional costs
and delays in doing business by requiring parties to sign contracts the old-fashioned
way, with paper and ink.

This article outlines these very specific areas where uncertainties remain that
negatively impact everyday business and how the Australian legal framework
can be clarified in a simple manner to allow contracts to be entered into with
electronic signatures consistently with the otherwise ubiquitous approach of
electronic signatures in Australian’s digital economy.

Check out our recent insights:

COVID-19: Practical tips on how to sign contracts electronically
An update: More practical tips on signing contracts electronically
Signing contracts electronically just got easier in NSW
Signing contracts electronically just got easier for companies

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