Section 9
Writing: an email can be the paper
Section 9(1) takes a Commonwealth requirement to give information in writing as met by an electronic communication where, first of all and in all cases:
“at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference”
Electronic Transactions Act 1999 (Cth), s 9(1)(a)
The department puts it in plainer words: information can be sent electronically instead of on paper “so long as it can be reopened and read again”, and the Act does not require any specific method.
The other conditions depend on who receives it. If the receiver is a Commonwealth entity that requires particular information technology or a particular way of verifying receipt, that requirement has to be met. If the receiver is neither a Commonwealth entity nor acting for one, that person has to consent to receiving the information electronically.
“Giving information” is wide. Section 9(5) lists, among other things, making an application, lodging a return, giving a notification, making a request and making a declaration.
Section 10
Signature: a method, not a pen
Section 10(1) treats a Commonwealth signature requirement as met for an electronic communication where a method is used “to identify the person and to indicate the person’s intention in respect of the information communicated”, and that method was either as reliable as appropriate for its purpose in all the circumstances, or proven in fact to have done that job. The same two receiver conditions follow: a Commonwealth entity’s IT requirements, and the consent of anyone who is not a Commonwealth entity.
The department says identity “could be shown by a typed name, a personal mark, a personal email, or use of an online ID verification method”, and that intention “could be shown by a clear agreement, signing on the dotted line, or something extra in the context of a response.” It then gives four forms an electronic signature could take, depending on the circumstances:
Drawn or emailed
“drawn onto a screen or uploaded from a picture, before being sent electronically”
“made by emailing a signature, or a statement of acceptance”
Clicked or platform-made
“done by clicking an ‘I accept’ box on an online form before submitting”
“made and sent through a digital signing platform.”
One term needs care. “Digital signature” is not a term the Act uses, and the department notes it can mean a standard e-signature to one person and a signature with extra security features to another. If someone asks for one, the department suggests clarifying what they need.
Consent
The person receiving it has a say
When the document or the signature goes to a private person or a business rather than a Commonwealth entity, the department says you might need their consent to use the electronic method. The Act defines consent broadly:
“consent includes consent that can reasonably be inferred from the conduct of the person concerned.”
Electronic Transactions Act 1999 (Cth), s 5(1)
So consent need not always be explicit; the department says it can be inferred or indicated from previous situations. Commonwealth entities, for their part, can set their own IT, verification or other requirements for signatures under their legislation.
Exemptions
Where the Act steps back
Section 7A(2) of the Act lets regulations provide that its provisions do not apply to specified laws of the Commonwealth. The Electronic Transactions Regulations 2020 do this in Schedule 1: a provision listed in column 2 of an item “does not apply to the Commonwealth law specified in column 1 of the item.”
| Item and Commonwealth law | Provisions of the Act that do not apply |
|---|---|
| 13 · Bills of Exchange Act 1909 | “Subsection 8(1), Division 2 of Part 2 and sections 14, 14A, 14B and 15” |
| 16 · Cheques Act 1986 | “Subsection 8(1), Division 2 of Part 2 and sections 14, 14A, 14B and 15” |
| 23 · Corporations Act 2001 | “Subsection 8(1), Division 2 of Part 2 and sections 14, 14A, 14B and 15” |
| 24 · Subordinate legislation made under the Corporations Act 2001 | “Subsection 8(1), Division 2 of Part 2 and sections 14, 14A, 14B and 15” |
| 88 · Statutory Declarations Act 1959 | “Section 10” |
Division 2 of Part 2 is where sections 9 (writing) and 10 (signature) sit, alongside sections 11 and 12 on producing and keeping documents. The Act also carves out courts: Part 2A and Division 2 of Part 2 “do not apply to the practice and procedure of a court or tribunal.”
The department explains what an exemption does. It says a person “cannot rely on the exempted provisions” to complete the process, and that it does not necessarily mean paper. Its own example is the Statutory Declarations Act: the signature section is exempted, yet e-signatures can still be used “so long as they comply with the requirements under the Statutory Declarations Act.” The department’s other example is the Corporations Act 2001, from which the Regulations exempt sections of the Act. Both have their own guide here: companies signing documents electronically and statutory declarations signed digitally.
State law
A separate Act in every state and territory
The Commonwealth Act “only applies to Commonwealth laws”. Each state and territory has its own Electronic Transactions Act; the department says they are, in general, very similar, but each may differ slightly and may carry different exemptions. NSW’s Act is the one behind remote witnessing there, set out in witnessing by video in NSW.
Next in the queueThe receipt has its own rule, in the Australian Consumer Law: receipts and proof of purchase.