Does ticking “I accept” on an online form count as signing?

What the Act asks of a signature

The Electronic Transactions Act 1999 (ETA) says that electronic signatures (often called e-signatures) are just as valid as traditional paper or “wet ink” signatures for most Commonwealth processes. The Act does not require a specific method to make an electronic signature, as long as the method identifies the signer, and indicates their intention to approve whatever they have communicated.

Section 10 of the Act, read whole, is the test a method has to meet:

1. a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and
2. the method used was either: as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or proven in fact to have fulfilled the functions described in the first point, by itself or together with further evidence; and
3. if the signature is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the method used be in accordance with particular information technology requirements, that requirement has been met; and
4. if the signature is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity, the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method.

The department's summary of the same test: the method used must be connected to an electronic communication, and must be either as reliable as appropriate in the circumstances, or proven to be accurate.

If you are signing a document to send to someone who is not a Commonwealth government entity, like a private individual or business, you might need their consent for you to use the electronic signature method. That consent does not always need to be explicitly given; it can be inferred or indicated from previous situations. The Act itself says consent includes consent that can reasonably be inferred from the conduct of the person concerned. In some circumstances, the Act gives people choice about whether to accept electronic signatures.

Four ways to sign, side by side

These are four ways the department's page lists, as things an electronic signature could be, depending on the circumstances:

• A tick box: done by clicking an “I accept” box on an online form before submitting.
• A drawn signature: drawn onto a screen or uploaded from a picture, before being sent electronically.
• By email: made by emailing a signature, or a statement of acceptance.
• A signing platform: made and sent through a digital signing platform.

The test does not change with the method. For any of the four, s 10 asks whether the method identifies the person and shows their intention; whether it is as reliable as appropriate, or proven in fact to have done those two things; where the recipient is, or acts for, a Commonwealth entity that sets information technology requirements for the method, whether they are met; and, where the recipient is neither a Commonwealth entity nor acting for one, whether the recipient consents to the method.

Two of those conditions have examples of their own on the department's page. Identity could be shown by a typed name, a personal mark, a personal email, or use of an online ID verification method. Intention could be shown by a clear agreement, signing on the dotted line, or something extra in the context of a response.

Why “digital signature” is not the Act’s word

“Digital signature” is not a term used in the ETA, and can mean different things in different circumstances. For example, some people may intend it to mean the same as a standard e-signature, but other people may intend it to mean an electronic signature with extra security features. If you have been asked for a “digital signature” specifically, you may need to clarify what is required with the person you are dealing with.

Where the Act does not reach

The ETA covers most electronic processes under Commonwealth law. However, there are some exemptions. An exemption is when the ETA does not apply to a process under Commonwealth law, such as a requirement to make a signature, or send written information. There is no consistent rule for what an exemption does. Instead, the effect of an exemption is that a person cannot rely on the exempted provisions in the ETA to complete the process.

An exemption does not necessarily mean paper methods. There may be other rules or laws that allow, restrict or modify the use of electronic methods, without reference to the ETA. For all situations, it is necessary to separately check whether the exemption permits, or restricts, the use of electronic tools to carry out the excluded process. Where the ETA is exempted, you should check with the relevant organisation or department to see if they accept electronic signatures.

One exemption example sits next to this guide: the Commonwealth Statutory Declarations Act 1959 exempts the ETA sections relating to electronic signatures under the Regulations, and there can still be other ways to permit the use of electronic methods. How a Commonwealth statutory declaration is signed electronically is in the statutory declarations guide.

The Commonwealth ETA applies only to Commonwealth laws, and does not apply to processes under state or territory law. Each state and territory has its own Electronic Transactions Act.

When to ask a lawyer

If you are unsure whether the person or organisation you are dealing with accepts electronic signatures, it can be helpful to contact them to see. If still in doubt, or if the question is important to you, you should seek assistance or legal advice.