Tech Neutrality in Australian Signature Law

7/25/2019 Tech Neutrality in Australian Signature Law

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Tech Neutrality in Australian Signature Law

DANE WEBER*

Abstract

Throughout civilisation, people have used various methods to signify or evidence theirintent, from oral agreements to the symbolic passing of dirt. Widespread literacy hasenabled signatures to become the de jure method of evidencing this intention. Astechnology has improved, the methods for giving ones signature have become widelyvaried. What is the definition of a signature, and how is that reflected in the currentstate of technology? What about the future? Should specific technology be incorporated

into law? This paper explores those questions to examine the flexibility of Australiassignature laws, and suggests issues for reform.

Introduction

There is perhaps no other concept as ubiquitous in law as that of the humblesignature. In almost every area of law the signature is integral; and if notintegral 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 Governmentdepartment forms). Given the importance of signatures, it is surprising thatthere is a dearth of judicial or academic material on what a signature is.1Thesignature is simply taken for granted as a personal mark someone makesagainst something.

The question of what a signature is is of increased importance with thedigitisation of human communication. Legal instruments must be applicable incyberspace, and the law must adapt as technology changes; technology will notwait for the law.

The Electronic Transactions Acts were enacted by all Australian jurisdictionsaround the turn of the millennium.2This legislation is designed to address both

* LLM (IP&TechLaw), GDLP, LLB (Hons). Solicitor of the Supreme Court ofQueensland and the High Court of Australia.

1 Sharon Christensen, William Duncan and Roushi Low, The Statute of Frauds in theDigital Age Maintaining the Integrity of Signatures (2003) Murdoch UniversityElectronic Journal of Law 44, [1].

2 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 canfind examples of the telex3and fax machine4challenging signature law. If wego 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 beingcommitted to writing.5

Signature law has developed over the centuries along with communicationstechnology. It is imperative that different jurisdictions, in an increasinglyconnected and technologically-enabled world, address the validity ofsignatures. The law should be technology-neutral in application to addresscurrent and possible future technologies.

This paper will address the purpose of signatures, before exploring theAustralian approach to signature law in the digital age. The paper willdemonstrate that the Australian approach is one of the most flexibleapproaches to signature law, but one that requires amendments to match someinternational 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 ofFrauds was to require written agreement for some contracts, such as landcontracts. Before the Statute of Frauds, a feoffment6of freehold land was oftentransferred through the ceremony of livery of seisin. This involved the seller

(feoffor) giving the purchaser (feoffee) some twigs or dirt off the land tosymbolise its transfer, often in the presence of witnesses.7This is now no longerlaw in many jurisdictions.8

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1.1 When Signatures Are Required

Most requirements are legislative and inherit the old provisions of the Statute

of Fraudsor involve governmental processes. For example, in Queensland, thesuccessor to the Statute of Fraudsis the Property Law Act 1974(Qld). Section 56of that Act requires guarantees to be in writing and signed, and section 59requires contracts for the sale of land to be in writing and signed.9Less commonis the requirement for the sale of goods to be in writing and signed fortransactions over $20. This does not exist in any Australian jurisdictions exceptTasmania10and Western Australia.11

Wills also require signatures: for example, Queenslands 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 writingand signed in accordance with the respective governing property and willsstatute.14

Statutory declarations and affidavits also require signatures in addition to theadministration of an oath or affirmation: for example, Queenslands UniformCivil Procedure Rules 1999(Qld),15the Federal Circuit Court Rules 2001(Cth)16andthe electronic filing initiatives of the Federal Court, Family Court, and FederalCircuit Court of Australia.

1.2 The Signatures Purpose

It has been stated, at least in the context of the Statute of Frauds requirementsfor signatures, that a signatures 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; WillsAct(NT), s 8; Wills Act 1936(SA), s 8; Wills Act 2008(Tas), s 8; Wills Act 1997(Vic), s7; Wills Act 1970(WA), s 8.

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

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evidences the partys 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 partys intention in the context ofwhich it is signed.

This intention may be multi-faceted, and does not have to relate to the originalperson who signs a document. When those original signatures requireattestation by a witness (who affixes their own signature to evidence theauthenticity of the original signature, and thus the original signors intentionor approval of its contents,18as with, for example, deeds),19intention can takemany forms. For example:

Transfers of land. In Queensland, contracts for the transfer of land mustbe in writing and signed,20 but the actual instruments used to registertransfers of land must also be witnessed.21 Beyond authentication, thewitness must also ensure that the person whose signature they arewitnessing is entitled to sign the instrument. This is to prevent theregistration of forged documents.22

Wills. Wills are notable for often requiring not one, but twowitnesses tobe present.23 Apart from the obvious need for protection, given the

17 Sharon Christensen, William Duncan and Roushi Low, The Statute of Frauds in theDigital Age Maintaining the Integrity of Signatures (2003) Murdoch UniversityElectronic Journal of Law44, [9].

18 See for example Tim Travers, On-Line Signing Made Simple (2004) 1 DigitalEvidence & Electronic Signature Law Review44, 45; William Blackstone, Commentarieson the Laws of England(University of Adelaide, 1st& 2nded, 2014) Book 2, Chapter20 (accessed 23 November 2015).

19 Property Law Act 1974(Qld), s 45(2).

20 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; Lawof 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.

21 Land Title Act 1995(Qld), s 161; Land Titles Act 1925(ACT), s 73; Real Property Act1900 (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.

22 Sharon Rodrick, Forgeries, False Attestations and Impostors: Torrens SystemMortgages and the Fraud Exception to Indefeasibility (2002) 7 Deakin Law Review97,102.

23 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; WillsAct 1997(Vic), s 7; Wills Act 1970(WA), s 8.


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nature of the document, in divesting ones estate upon death, it has beensuggested that this impresses the solemnity of the moment upon thetestator, ensuring that the will is not being entered into haphazardly or

without the capacity to form the requisite intent.24 Attestation in thisregard has said to be evidentiary, cautionary and protective.25

Powers of Attorney. Given the nature of handing ones personal powerover to another, the intention of attestation is protective, often forcingthe witness to ensure that the person making a power of attorney has thecapacity to understand what is being entered into.26

Affidavits. Like a will, the purpose of attestation for an affidavit is toimpress upon the deponent the solemnity of the moment by binding the

deponents conscience under penalty of perjury.27

This is because anaffidavit is evidencewhich is given under oath,28and the witness mustadminister this oath.29

The fact that attestation exists through the use of signatures gives weight tointent being of greater general applicability than approval. The more flexibleuse of evidencing intention rather than approval is perhaps of moreuniversal effect. Consider Romer LJs words in Goodman v J Eban:30

The first reaction of many people, I think, would be that the impressionof 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 andalso 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 acelebrity autograph to a fan. Such an autograph does not evidence any

24 Andrew Lang, Formality v Intention Wills in an Australian Supermarket (1985)

15(1)Melbourne University Law Review82, 88.25 John H Langbein, Substantial Compliance with the Wills Act (1975) 88(3) Harvard

Law Review489, 492-5.

26 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 ofAttorney 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.

27 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 merelydecorative.

Thus the intention of the signatory is integral to deciding whether any methodto create a signature will be treated as one. The following words from the UScase of Howley v Whipple31 are astonishingly accurate in their premonition oftodays signature laws:

It makes no difference whether that operator writes the offer or theacceptance with a steel pen an inch long attached to an ordinarypenholder, 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 thefinger resting upon the pen; nor does it make any difference that in onecase common record ink is used, while in the other case a more subtlefluid, known as electricity, performs the same office.

In 1869, so long as the thought [was] communicated, the way in which it wasdone was immaterial. Of course, that decision could never have contemplatedthe existence of computers or the internet, but it did recognise how intent wasthe 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 theapproach 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 Apartfrom common seals for bodies corporate, a seal or stamp has also been used asa personal signature.33

Messages sent through telex were also said to constitute signatures in writingfor the purpose of the Statute of Frauds,34 and the tested telex also satisfied

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

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those requirements,35which was a primitive form of a digital signature whichwill be discussed later. Faxes can also have the effect of a signature,36as well assimply clicking I agree on a website.37

Emails have consequently been found to constitute signatures at times. The UKcase of J Pereira Fernandes SA v Mehta38 involved a guarantee, which wasrequired to be signed. The header of the email indicated that it was from therespondents email address, which the Court held satisfied section 4 of theStatute 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 wasautomatically inserted by the software, and not at the respondents instruction.The Court concluded that, had the respondent put his name in the text of theemail (or even a scanned image of his handwritten signature), then such anaction would sufficiently have indicated his intention to be bound.39

Aside from technology being used in place of signatures, there exists specificsignature technology. This technology not only signs the document, but alsoverifies the authenticity of the signor and ensures the integrity of the document.

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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 keycryptography.41

Public key cryptography requires the involvement of trusted third-parties tomaintain a database of public keys, called Public Key Infrastructure (PKI).42In this system, there exist corresponding private keys and public keys. Theseare simply digital files created by mathematical formulae, and the private andpublic keys are related through those formulae. When a document is encryptedwith a public key, only its corresponding private key can decrypt it, and viceversa. The chances of mathematically deriving one key from its partner ispractically 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 ofignorance on the use of digital signatures from both consumers and business.43

In general parlance, the terms electronic and digital signatures are often usedas synonyms, however there is a distinction in the technology used. In manycases an electronic signature is merely a digitised copy of a physical signature,or another analogue such as typing ones name. The signatures sent by faxmachines and telex are analogous. However these forms of electronic signaturewill generally not evidence whether:

the party placing the signature on the document was actually theperson stated;

the person placing the signature on the document actually approvesof its terms; or whether

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the signature was not forged, placed on the document by anotherparty, or removed from another document to be placed on the differentdocument.44

Conversely digital signature can, in the appropriate circumstances, evidencethose three points. For the first and third points, only the person with theprivate key can attach their digital signature, and the digital signature canverify the documents integrity. For the second point, this is a matter of fact; adigital signature can be used to approve of its terms, however it can also beused 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 makesignatures electronic, such as biometric data and systems which capture thesignatorys handwritten signature metrics.45

With the internet allowing global communication and the world opening upinto a global marketplace, the law relating to electronic signatures must beneutral to technology. The law should provide for the freedom of signatoriesto evidence their intention in any way they think is practical, necessary, orotherwise 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 retardingeffect on technological development.46

In response to those problems international and domestic law has movedtowards technological neutrality. The Commonwealth Government definesthat term as follows:

Technology neutrality means that the law should not discriminatebetween different forms of technology for example, by specifyingtechnical requirements for the use of electronic communications that arebased upon an understanding of the operation of a particular form ofelectronic communication technology.47

44 Sharon Christensen, William Duncan and Roushi Low, The Statute of Frauds in theDigital Age Maintaining the Integrity of Signatures (2003) Murdoch UniversityElectronic Journal of Law44, [17].

45 Chris Reed, Internet Law: Text and Materials(Cambridge University Press, 2nded, 2004)145.

46 See, for example, Wolfgang Drechsler and Vasilis Kostakis, Should Law Keep PaceWith Technology? Law as Katechon (2014) 34(5-6) Bulletin of Science TechnologySociety128.

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2 Australian Approach

The Australian approach to electronic signatures is embodied in the (roughly)

uniform Electronic Transactions Acts(ETA) of the Commonwealth48and eachState49 and Territory.50 The requirements are roughly similar between eachjurisdiction and the legislation is intended to be technologically neutral.51TheseActs, in summary, provide that an electronic signature will meet a requirementfor 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 signors intention or approval of the information

communicated;2. And the method:

a. Having regard to all relevant circumstances and any relevantagreement, was reliable as was appropriate for which the informationwas communicated;52or

b. Proved in fact to have identified or indicated the signor and theirintention 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 Electronic Transactions Act 1999(Cth).

49 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).

50 Electronic Transactions Act 2001(ACT); Electronic Transactions (Northern Territory) Act2000(NT).

51 Sharon Christensen, Formation of Contracts by Email Is It Just the Same as thePost? (2001) 1(1) Queensland University of Technology Law and Justice Journal22, 23-24.

52 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,6thComm, 56thsess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002).


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The same legislative intention is embodied in the Commonwealth53and eachState54and Territory55version of the ETA. Though where all jurisdictions sub-sections (2) (and Queenslands section 15) do not affect the operation of another

law which requires anything specific, the Commonwealth versions sub-section(1)(c) is worded differently, in that if a signature is required to be given to aCommonwealth entity, if there are information technology requirements, thoserequirements must be met.

Each jurisdictions ETA also provides exceptions, whether under the relevantAct,56or under the associated Regulations57(excluding the Australian CapitalTerritory and Northern Territory). These exceptions most often relate todocuments involved in court proceedings or other documents requiring third-party attestation or authentication (for example, witnessing documents oradministering oaths or affirmations).

These definitions are very broad and, unlike the Model Law on ElectronicSignatures,58are drafted for general application to be technologically neutral.

2.1 Technology and Consent in Australias ElectronicTransactions Acts

What will constitute an electronic signature in Australian law? This questionrequires considering not only what technology will be accepted, but also howconsent will be dealt with.

A name typed at the end of a signature is common, and is considered to be anelectronic signature under the ETAs. In Faulks v Cameron,59 one party typingRegards, Angus at the foot of an email was considered to satisfy the NorthernTerritory ETA for the purposes of the De Facto Relationships Act(NT).

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

54 Electronic Transactions Act 2000(NSW), s 9(1); Electronic Transactions (Queensland) Act2001(Qld), s 14(1); Electronic Transactions Act 2000(SA), s 9(1); Electronic TransactionsAct 2000(Tas), s 7(1); Electronic Transactions (Victoria) Act 2000(Vic), s 9(1); ElectronicTransactions Act 2011(WA), s 10(1).

55 Electronic Transactions Act 2001 (ACT), s 9(1); Electronic Transactions (NorthernTerritory) Act 2000(NT), s 9(1).

56 Electronic Transactions (Queensland) Act 2001(Qld), sch 1.

57 Electronic Transactions Regulations 2000(Cth), sch 1; Electronic Transactions Regulation2012 (NSW); Electronic Transactions Regulations 2002 (SA); Electronic TransactionsRegulations 2011 (Tas); Electronic Transactions (Victoria) Regulations 2010 (Vic);Electronic Transactions Regulations 2012(WA).

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In the High Court in Attorney-General (SA) v Corporation of the City of Adelaide,60a legal practitioner was required to sign a certificate of validity for a Councilby-law. The certificate itself was not signed, but the legal practitioner stated his

name in the accompanying email which the certificate was attached to. Despitethe certificate being unsigned, the certificate unequivocally signified the legalpractitioners view that the by-law was valid. The legal practitioners name inthe electronic document was taken to be a signature pursuant to the SouthAustralian ETA, thus satisfying regulation 19 of the Local Government (General)Regulations 1999(SA).

A relatively recent case of important note in the Commonwealth jurisdiction isGetup Ltd v Electoral Commissioner(Getup).61Prior to the 2010 Federal Election,advocacy group Getup ran a campaign to encourage people to vote. Theyfacilitated this by providing a website, ozenrol.com.au, where people could

register online to vote. The website provided a signature tool where one coulduse 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 thisapplication.

It was argued that the signature was compromised, by being comprised ofbroken lines (or dots and dashes) or being pixelated, rendering it unreliable.62However the Commissioner had previously accepted faxes, and scanned PDFsand scanned JPEG signatures sent by email.63In fact, documentation suppliedby the Electoral Commissioner suggested that claimants use the lowestresolution of 100 DPI (dots per inch).64

Even though these files could easily be manipulated, the ElectoralCommissioner has been shown to accept them in the past.65One may draw twoimportant conclusions. First, that faxes, emailing JPEG images, and anelectronic signature tool such as a stylus or other method will satisfy theCommonwealth ETA for being as reliable as was appropriate66 especiallycompelling given the importance of voter registration. Second, that byaccepting these submissions in prior circumstances, the requirement forconsent, both for the electronic signatures and the method of their signing, wasfulfilled.67

Consent therefore need not be explicit. Consent can be implicit, whether it is

through tacit consent or prior acceptance. Thus, Australias 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].


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to be not only technologically neutral, but also provides that unless explicitlyrequested or required by law to be in physical writing, an electronic signaturewill suffice.

2.2 Digital Signatures in Australian Law

Currently, digital signatures and PKI technology remain untested by theAustralian courts. To the extent that the term digital signature is dealt with, itis done so in the context of being used interchangeably with electronicsignature. For example a signature block in an email may be referred to bothas a digital and electronic signature.68

However, that is not to say that digital signatures would be invalid underAustralias ETAs. The major issue in determining whether a digital signature

could be covered by the ETA is the issue of properly identifying the signor. Ashas been rightly pointed out, how can a digital signature identify someone ifthe parties have not met, especially if they are overseas?69Consequently it canbe argued that, in those uncertain circumstances, digital signatures issued by acertification authority in the context of PKI could provide the requisiteidentification70and thus satisfy the ETA.

2.3 Gatekeeper and Electronic Conveyancing

Despite being unaddressed in Australian case law for general use, digitalsignatures are considered valid in other areas of Australian law.

The first is the Gatekeeper71 PKI system. Gatekeeper is a PKI system for thedelivery of online government services, offering accreditation to those thatcomply with its requirements, such as the Australian Post Office. Dependingon the level of security required, obtaining a Gatekeeper-compliant digitalsignature requires a range of in-person identity checks with an accreditedservice provider. However, this is for the provision of online governmentservices, not for the purposes of everyday signature use.72

68 Searene Whitsunday [2012] QBCCMCmr 585, [18]-[20]; Searene Whitsunday [2013]QBCCMCmr 219, [26]-[34].

69 Yee Fen Lim, Digital Signature, Certification Authorities and the Law [2002]Murdoch University Electronic Journal of Law29, [47].

70 Sharon Christensen, Electronic Land Dealings in Canada, New Zealand and theUnited Kingdom: Lessons for Australia (2004)Murdoch University Electronic Journalof Law37, [47].

71 Department of Finance, Gatekeeper (Public Key Infrastructure) (accessed 1 December 2015).

72

Another example is Auskey, a digital signature that owners of an ABN may installon their computer to verify access to government services on behalf of that business.


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EAP 14

Secondly, electronic conveyancing is the area gaining the most ground in theuse of digital signatures. The Electronic Conveyancing National Law73 (theNational Law) is the product of ARNECC, the Australian Registrars National

Electronic Conveyancing Council, comprising each Australian State andTerritorys Land Registry officials. Currently, the National Law is in effect inNew South Wales, the Electronic Conveyancing (Adoption of National Law) Act2012(NSW) (the NSW Law). The NSW Law adopts the National Law (see itsAppendix). South Australias law contains the National Law in its appendix,74whereas the legislation in Queensland,75 Tasmania76 and Victoria77adopt theAppendix 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 ifthey are in the approved form, and also by means of an ELN, an ElectronicLodgment Network. Section 13 simply provides that an ELN is a system for

lodging registry instruments. This will involve a PKI system of digitalsignatures used by subscribers. Subscriber, under section 3(1), means aperson who is authorised under a participation agreement to use an ELN tocomplete conveyancing transactions on behalf of another person or on theirown behalf. This would usually be a solicitors firm, whose identity andparticulars would need to be authenticated before they could participate in theELN and lodge documents electronically.

A digital signature of a subscriber under section 12 will be binding, regardlessof circumstances of fraud. This is the concept of non-repudiation, and a digitalsignature can only be repudiated under section 12(4) if the signature wascreated 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 incompliance with the National Law will satisfy all requirements for execution,signing, witnessing, attestation or sealing. They are then equivalent tohandwritten signatures. In either case, the progressive implementation ofelectronic conveyancing across Australia will normalise the use of digitalsignatures in person-to-person dealings and provide a precedent for their legalvalidity.

Once fully implemented, there will no doubt be disputes arising and thus case

law determining issues of digital signatures, without the term being usedinterchangeably with electronic signatures.

73 ARNECC, Electronic Conveyancing National Law (accessed 1 December 2015).

74 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.


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EAP 15

3 Technological Neutrality in Australian Signature Law

Australias ETA is fairly technologically-neutral, and roughly equivalent to the

USs Uniform Electronic Transactions Acts(UETA)78which provides for similartechnological neutrality. The main difference is that whereas the USs approachis carte blanche approval, Australias ETA contains guidance on whatconstitutes an electronic signature without being restrictive. By requiring theidentification of the signor and that the method used be as reliable as thecircumstances require, Australias approach remains technologically-neutralwhile providing an assurance that electronic signatures will be valid if theyeffectively comply with case law on what the purpose of a signatures is.

The guidance provided in Australias 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 thereexists a digital divide79between parties, the disparity in technology and theuse of an electronic signature in one way may not actually come to the otherpersons attention.

As an example of the lack of distinction between electronic and digitalsignatures, consider the case of Searene Whitsunday.80 In that case, digitalsignature was used in reference to a signature block at the end of an email, andsigning the email rather than the form was an inconsequential minor defect.81If digital signature instead referred to encryption technology instead of asignature block at the end of an email, consent must be given greater emphasisin 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 couldnot possibly consent to its use as a signature. Consent cannot be implicit if therecipient of the signature is unaware of its existence.

Consent is integral to technological neutrality. If the method of signing iswidespread, such as with email, then consent can usually be implied by thecircumstances or by prior conduct. However, if the method of signing wasrarely used (such as biometric data involving fingerprints), consent must beexplicit. This demonstrates the importance of consent protecting those whomay not know, or may not have the technology, to accept certain methods ofsigning.

21 O3#B2&+ S"%N*&23#N 4&)31)N*#231 7N* 5ACCC9% `*LB'D*- ='D&$($DJ$ '& ='++B??B'D$(?

'D _DB&'(+ #L*L$ 4*Y?9

79 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 February2014) The Sydney Morning Herald (accessed 1 December 2015).

80 Searene Whitsunday[2013] QBCCMCmr 219.

81 Ibid [31].


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EAP 16

Where Australias ETA is lacking in comparison to the US UETA is as regardsto the issue of witnessing (or notarising) documents, which the US UETAallows the witnessing of electronic signatures. Australian law largely precludes

documents that require witnessing to be done electronically, unless providedfor by the government or deemed as such by law, such as in electronicconveyancing. As an example of how this could be incorporated in Australia,New Zealands Electronic Transactions Act 2002 (NZ)82 provides a workingexample which combines Australias guidance on validity of signatures andrequirements for consent with the US UETAs allowance for the witnessing ofelectronic signatures.

It has been argued that, as the electronic signing of a document consists ofelectrons within the computer that cannot physically be witnessed, that unlessthere 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 witnessingof a land transfer document is invalid because a Justice of the Peace wasdistracted at the very moment that the pen made contact with the paper. Thecircumstances and context are what is important to consent and the witnessingof that consent by another.

One unaddressed factor in the Getup case was that the enrolment documentwas required to be witnessed under section 98AA(2)(c) of the CommonwealthElectoral Act 1918 (Cth). Unlike the State ETAs, the Commonwealth ETAsregulations do not provide a blanket ban on witnessing signatures. Whereasthe States have plenary power, the Commonwealth legislation is framed to itsprescribed heads of power.84

This is why the Schedule to the Electronic Transactions Regulations 2000(Cth) isspecific in its exclusion of witnessing signatures. As section 98AA(2)(c) of theCommonwealth 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 theCommonwealth Electoral Act 1918 (Cth) was not excluded by the ElectronicTransactions Regulations 2000 (Cth), there does not appear to be anydocumented reason.

1: S"%N*&23#N 4&)31)N*#231 7N* ?@@?P`eQ% ? ::% :!9

83 Adrian McCullagh, Peter Little and William Caelli, Electronic Signatures:Understand the Past to Develop the Future (1998) 21(2) University of New SouthWales Law Journal 452, 464-465.

84 Commonwealth of Australia Constitution, s 51. This is noted in the ExplanatoryMemorandum to the Electronic Transactions Bill 1999(Cth): an option was to enact acomprehensive Commonwealth-level regime (which might have encounteredconstitutional problems), or to work with the States on uniform legislation. The latterpath was chosen: any Commonwealth legislation must still be supported by a headof 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, s51(xxxix).


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EAP 17

In Getup, only the issue of signing with a stylus was addressed, and it wasconsidered to satisfy the Commonwealth ETA.85The issue of a stylus signaturebeing witnessedby another stylus signature, however, was not addressed. As

such, the Federal Court proceeded on the basis that the electronic signature wasvalid, and considered that the Electoral Commissioner should have acceptedthe form despite being electronically signed. The issue of a witnessingelectronic signature went by without comment; and was still considered asreliable as was appropriate.

The fact that the Federal Court allowed such an electronic signature isimportant in electronic signature case law. There are compelling reasons forsome documents still to be excluded, such as wills, powers of attorney, andaffidavits, as there are obligations upon the witness to do more than simplysign after the original signor. However, there is no compelling reason why

deeds that people may choose to enter into from time to time should beexcluded. For example, under the Electronic Transactions (Queensland) Act 2001(Qld), two people may not enter into a deed under section 45(2) of the PropertyLaw Act 1974 (Qld) because the deed must be witnessed. If instead twocompanies entered into a deed and executed it under section 127(1) of theCorporations Act 2001 (Cth) which only requires unwitnessed signatures ofoffice-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 thatwould 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 setby the USs UETA, in allowing witnessing signatures to be electronic, and NZsETA assuring that those witnessing signatures must be as reliable as isappropriate and that the consent of all parties is obtained. Although there maybe concerns with attesting to the integrity of documents and whether alterationcan be detected, the Electoral Commissioner has already set the precedent:enrolment forms, when witnessed, will happily be accepted in low-resolutionformats 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 MotorVehicles86 provides that, when a statement is made under the penalties ofperjury, the document is thus properly signed, including the requirement for

a witness to administer the oath. Whether a click-wrap agreement could servesuch an end is worth further analysis.

The only area where Australian signature law lacks technological neutrality isin relation to personal dealings is conveyancing. That is perhaps justified bythe peculiarities of Australias publically administered system of Torrens Title.The Torrens System was devised to increase certainty and security in transfers

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

86

Doherty v Registry of Motor Vehicles(Mass Dist Ct Suffolk Cry, No 97CV0050, 28 May1997).


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of land in Australia.87This was done by creating a central Register in each state,in which each parcel of land is uniquely identified.88Unlike other systems thatallowed 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 specificrequirements for registration, perhaps technological neutrality is not the bestgoal for land transfers, as freedom of contract is necessarily restrained by thoserequirements. To that end, the Electronic Conveyancing National Law hasenshrined the use of digital signatures within Australias Torrens Titleinfrastructure.

Conclusion

Although the United States and New Zealand approaches are the mostaccommodating of any new technology, the Australian approach alsorecognises that such technology is going to be used in practice across society.Guidelines on validity and reliability and the requirement of consent alleviatethe societal impacts of disparate access to technologies. It also accommodatestechnology not yet in existence, or any technology that anyone wishes to use.Although perhaps not as technologically neutral as those of the United Statesor New Zealand, Australias electronic signature laws are still very flexible innot providing legal validity for one type of signature technology over anyother.

The Australian Electronic Transactions Actsallows the validity of signatures tobe based on their merit; based on what is reliable as is appropriate in thecircumstances. However, through a constitutional quirk (and perhapsoversight), witnessing signatures have been allowed uncontested in Federalcase law.

The law in relation to attestation and electronic signatures requires an analysis.Loopholes in state legislation disallow people from freely entering into deedselectronically, but allow companies to do so instead. For deeds at least, there isno reason why Australian law should not follow the lead of the United Statesand New Zealand by giving witness signatures the same treatment as original

signatures in the electronic era. Although policy reasons may exclude witnesssignatures 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 See, for example: Property Law Act 1974(Qld), ss 241-249.

90 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 therebeing an equitable interest in the land or any fraudulent conduct, the owners title isindefeasible. 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 registeredor unregistered, but if registered the encumbrances are granted indefeasibility.


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being electronic, Australian law should adopt the United States and NewZealand approach in judging them on whether they are as reliable as isappropriate.

However, for wills, powers of attorney, and affidavits, care must be taken whenconsidering this venture; although the government is heavily involved in landtransfers and can set up an electronic system, no such government initiativeexists for wills or powers of attorney, which, as such, are not subject to suchextensive regulation. Until such time, affidavits and similar documents subjectto perjury can easily be accommodated into electronic filing systems of courts.This will be an area of development in the law as governments and legalsystems become less reticent to take part in the digital age.

Tech Neutrality in Australian Signature Law

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