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Tech Neutrality in Australian Signature Law
DANE WEBER[*]
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.
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
writing and signatures in the digital age. Tracing back through history, we can find examples of the telex[3] and fax machine[4] 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.
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]
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[10] and Western Australia.[11]
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.
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;
• 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 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
‘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 Whipple[31] 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.
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 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 Mehta[38] 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. The signature technology often the subject of regulation[40] 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
• ... 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.
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]
The Australian approach to electronic signatures is embodied in the (roughly) uniform Electronic Transactions Acts (‘ETA’) of the Commonwealth[48] and each State[49] 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.
The same legislative intention is embodied in the Commonwealth[53] and each State[54] and Territory[55] version of the ETA. Though where all jurisdictions’ sub-sections (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 Regulations[57] (excluding the Australian Capital Territory and Northern Territory). These exceptions most often relate to documents involved in court proceedings or other documents requiring third-party 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.
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).
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 appropriate[66] — 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 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.
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.
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 Gatekeeper[71] 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]
Secondly, electronic conveyancing is the area gaining the most ground in the use of digital signatures. The Electronic Conveyancing National Law[73] (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] Tasmania[76] and Victoria[77] 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.
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.
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.
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 Vehicles[86] 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 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.
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 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.
[*] LLM (IP&TechLaw), GDLP, LLB (Hons). Solicitor of the Supreme Court of Queensland and the High Court of Australia.
[1] 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].
[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).
[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] 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.’
[8] See, for example: Property Law Act 1974 (Qld).
[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, 2nd ed, 2009) 383.
[14] Ibid.
[15] Uniform Civil Procedure Rules 1999 (Qld), r 432.
[16] Federal Circuit Court Rules 2001 (Cth), r 15.26.
[17] 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].
[18] 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, 1st & 2nd ed, 2014) Book 2, Chapter 20 <http://ebooks.adelaide.edu.au/b/blackstone/william/comment/complete.html> (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; 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.
[21] 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.
[22] Sharon Rodrick, ‘Forgeries, False Attestations and Impostors: Torrens System Mortgages and the Fraud Exception to Indefeasibility’ [2002] DeakinLawRw 5; (2002) 7 Deakin Law Review 97, 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; Wills Act 1997 (Vic), s 7; Wills Act 1970 (WA), s 8.
[24] Andrew Lang, ‘Formality v Intention – Wills in an Australian Supermarket’ [1985] MelbULawRw 5; (1985) 15(1) Melbourne University Law Review 82, 88.
[25] John H Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88(3) Harvard Law Review 489, 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 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.
[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.
[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’.
[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].
[40] 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.
[41] 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.
[42] 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, 24-27.
[43] Aashish Srivastava, ‘Businesses’ Perception of Electronic Signatures: An Australian Study’ (2009) 6 Digital Evidence and Electronic Signature Law Review 46, 48-49.
[44] 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].
[45] Chris Reed, Internet Law: Text and Materials (Cambridge University Press, 2nd ed, 2004) 145.
[46] 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.
[47] Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).
[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) Act 2000 (NT).
[51] Sharon Christensen, ‘Formation of Contracts by Email – Is It Just the Same as the Post?’ [2001] QUTLawJJl 3; (2001) 1(1) Queensland University of Technology Law and Justice Journal 22, 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, 6th Comm, 56th sess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002).
[53] Electronic Transactions Act 1999 (Cth), s 10(1).
[54] 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).
[55] Electronic Transactions Act 2001 (ACT), s 9(1); Electronic Transactions (Northern Territory) 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 Regulation 2012 (NSW); Electronic Transactions Regulations 2002 (SA); Electronic Transactions Regulations 2011 (Tas); Electronic Transactions (Victoria) Regulations 2010 (Vic); Electronic Transactions Regulations 2012 (WA).
[58] 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).
[59] Faulks v Cameron [2004] NTSC 61; (2004) 32 Fam LR 417, 426 [64].
[60] Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 295 ALR 197, 205 [23]-[24].
[61] Getup Ltd v Electoral Commissioner [2010] FCA 869; (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].
[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 Law 29, [47].
[70] 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].
[71] Department of Finance, Gatekeeper (Public Key Infrastructure) <http://www.finance.gov.au/policy-guides-procurement/gatekeeper-public-key-infrastructure/> (accessed 1 December 2015).
[72] 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.
[73] ARNECC, Electronic Conveyancing National Law <http://www.arnecc.gov.au/publications/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.
[78] Uniform Electronic Transactions Act (1999), National Conference of Commissioners on Uniform State Laws.
[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 February 2014) The Sydney Morning Herald <http://www.smh.com.au/digital-life/digital-life-news/digital-divide-still-an-issue-for-low-income-earners-20140226-33i7l.html> (accessed 1 December 2015).
[80] Searene Whitsunday [2013] QBCCMCmr 219.
[81] Ibid [31].
[82] Electronic Transactions Act 2002 (NZ), s 22, 23.
[83] Adrian McCullagh, Peter Little and William Caelli, ‘Electronic Signatures: Understand the Past to Develop the Future’ [1998] UNSWLawJl 56; (1998) 21(2) University of New South Wales Law Journal 452, 464-465.
[84] 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).
[85] Getup Ltd v Electoral Commissioner [2010] FCA 869; (2010) 268 ALR 797.
[86] Doherty v Registry of Motor Vehicles (Mass Dist Ct Suffolk Cry, No 97CV0050, 28 May 1997).
[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 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.
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