Have you ever asked yourself – can a deed be signed electronically by an individual? Well, if you have then this post will cover everything you need to know.
Over the last few years, the COVID-19 pandemic has accelerated the process of digitising transactions, communication, and legal documents and processes. One of the biggest changes has been the liberalisation of signature requirements to allow different types of documents to be e-signed, for instance by using Lawpath’s built-in e-signature function.
However, while the federal Corporations Act 2001 allows companies to validly sign deeds and agreements electronically, the situation with individuals signing deeds is a little more complicated. If you are unsure about how signing documents may apply to you an experienced Lawpath Lawyer would be more than willing to provide legal advice that can safeguard you.
How Does the Law Regulate the Ability of Individuals to E-Sign Deeds?
Electronic signature of deeds by individuals is regulated by state legislation. Though some of this legislation has changed in light of the pandemic, it remains inconsistent across Australia, and subject to change as well as differing interpretation.
Can a deed be signed electronically in all Australian States?
The following table outlines the position of the various states and territories in Australia regarding the electronic signing of deeds.
| State/Territory | Legislative Rules for Signing Deeds |
| Queensland (QLD) | Individuals may validly e-sign deeds without a witness. |
| Victoria (VIC) | Individuals may validly e-sign deeds without a witness. |
| New South Wales | Individuals may validly e-sign deeds with a witness. Witnessing may be conducted through audio-visual link but must follow certain requirements, and the deed must contain a statement that it has been signed in counterpart and witnessed over audio-visual link in accordance with section 14G of the Electronic Transactions Act 2000 (NSW). |
| South Australia | Individuals may generally only sign deeds using wet ink signature. A deed may only be witnessed by a witness who is physically present. |
| Tasmania | Individuals may generally only sign deeds using wet ink signature. A deed may only be witnessed by a witness who is physically present. |
| Western Australia | Individuals may generally only sign deeds using wet ink signature. A deed may only be witnessed by a witness who is physically present. |
| Northern Territory | Individuals may only sign deeds using wet ink signature. A deed may only be witnessed by a witness who is physically present. |
| Australian Capital Territory | Individuals may generally only sign deeds using wet ink signature. A deed may only be witnessed by a witness who is physically present. |
Do I need a witness?
As is evident, only Victoria and Queensland have enacted legislation that allows individuals to electronically sign deeds with the same ease as company representatives would, without a witness to the signature.
New South Wales also allows for electronic execution of documents but requires the signatures to be witnessed following a particular procedure. It is not recommended that a remote witnessing procedure is followed without the help of a lawyer or a professional with experience in electronic form transactions.
In all other states, wet ink signatures are required by legislation. For this reason, the deeds on Lawpath’s platform include warnings stressing the need for caution when signing deeds outside of Victoria and Queensland, and allow for signature by witnesses.
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What If I’m Signing an Agreement, or a Deed on Behalf of a Company?
In all Australian states and territories, electronic signatures of agreements by individuals have the same validity as wet ink signatures. In any event, parties should still be mindful of measures they wish to implement to ensure the identity of individuals and ensure that these agreements accurately reflect the will of the parties, including the witnessing of documents being signed as well as online signature tools such as Lawpath.
To avoid confusion, this article refers to signing by individuals on their own behalf as parties to a deed or agreement. Signatures by individuals as representatives of companies that are parties to a deed or agreement are regulated by sections 126 and 127 of the Corporations Act 2001 (Cth).
How Can I Best Ensure My Signature is Valid?
It is important to be mindful of where and how these rules apply when signing by electronic means. As mentioned before, Queensland and Victoria permit the e-signing of deeds, and in a situation where both parties reside in either state and have elected Queensland or Victoria law as the governing law of the deed (as many Lawpath documents allow), the law clearly allows them to do so.
However, there may be a situation where a deed is being signed electronically by one party in Victoria and another one in South Australia. This raises a question of what the correct state jurisdiction is, a question that a court would have to consider before deciding on the applicable legislation.
Generally, courts will follow the intention of the parties. If parties have outlined in the deed that certain state legislation applies to the deed, then that state’s legislation will be applied. There may be some exceptions, such as where a state’s legislation says that it applies to all deeds signed in that state, or where the parties reside in that state, regardless of the intention of the parties.
In any event, we recommend being safe rather than sorry, and conducting in-person signing of a physical form, or else applying wet ink signatures through the counterpart method.
All of Lawpath’s deeds include rows in the signature section where witnesses may sign. Where Victoria or Queensland users are confident that they do not require a witness in their electronic execution of deeds, the witness rows may be deleted.
Important Reminders
All the guidance of in this article also applies to signatures by attorneys acting on behalf of individuals.
The rules for signing deeds should not be mistaken for the rules for signing statutory declarations and wills. These fall under separate state legislation and must be considered separately.
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