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ISSN-0729-1485
Copyright 2016 University of Tasmania
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Introduction
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
EAP 1
writing and signatures in the digital age. Tracing back through history, we can
find examples of the telex3 and fax machine4 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 feoffment6 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
See, for example, Clipper Maritime Ltd v Shirlstar Container Transport Ltd (the
Anemone) [1987] 1 LR 546, 554.
See, for example, In Re A Debtor (No 2021 of 1995) [1996] 2 All ER 345, 351.
Charles Davidson and Joshua Williams, Conveyancing, its Early History and
Present State (1845) 1 Law Review & Quarterly Journal of British & Foreign
Jurisprudence 382, 384.
EAP 2
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 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, Queenslands 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.
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
11
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, 2 ed, 2009) 383.
14
Ibid.
15
16
nd
EAP 3
17
18
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].
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, 1 & 2 ed, 2014) Book 2, Chapter
20<http://ebooks.adelaide.edu.au/b/blackstone/william/comment/complete.ht
ml> (accessed 23 November 2015).
st
19
20
21
22
23
nd
EAP 4
nature of the document, in divesting ones 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 ones 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
deponents 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 LJs 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
24
25
26
27
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
EAP 5
31
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 solicitors 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.
EAP 6
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
38
39
EAP 7
40
41
42
43
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.
EAP 8
44
45
46
47
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].
Chris Reed, Internet Law: Text and Materials (Cambridge University Press, 2 ed, 2004)
145.
nd
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.
Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).
EAP 9
Australian Approach
48
49
50
51
52
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).
Sharon Christensen, Formation of Contracts by Email Is It Just the Same as the
Post? (2001) 1(1) Queensland University of Technology Law and Justice Journal 22, 2324.
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,
6 Comm, 56 sess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002).
th
EAP 10
th
Consent
in
Australias
Electronic
53
54
55
56
57
58
59
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).
Electronic Transactions Act 2001 (ACT), s 9(1); Electronic Transactions (Northern
Territory) Act 2000 (NT), s 9(1).
Electronic Transactions (Queensland) Act 2001 (Qld), sch 1.
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).
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).
Faulks v Cameron (2004) 32 Fam LR 417, 426 [64].
EAP 11
60
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 295 ALR 197, 205 [23][24].
61
62
63
64
65
66
67
EAP 12
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.
68
69
70
71
72
EAP 13
Secondly, electronic conveyancing is the area gaining the most ground in the
use of digital signatures. The Electronic Conveyancing National Law73 (the
National Law) is the product of ARNECC, the Australian Registrars National
Electronic Conveyancing Council, comprising each Australian State and
Territorys 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 Australias law contains the National Law in its appendix,74
whereas the legislation in Queensland,75 Tasmania76 and Victoria77 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 solicitors 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.
73
74
ARNECC,
Electronic
Conveyancing
National
Law
<http://www.arnecc.gov.au/publications/electronic_conveyancing_national_law
> (accessed 1 December 2015).
Electronic Conveyancing National Law (South Australia) Act 2013 (SA), s 4.
75
76
77
EAP 14
78
79
80
81
Ibid [31].
EAP 15
82
83
84
EAP 16
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 USs UETA, in allowing witnessing signatures to be electronic, and NZs
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
Vehicles86 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 Australias publically administered system of Torrens Title.
The Torrens System was devised to increase certainty and security in transfers
85
86
EAP 17
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 Australias Torrens Title
infrastructure.
Conclusion
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, Australias 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
87
88
Ibid 555.
89
90
EAP 18
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.
EAP 19