The introduction of electronic transactions legislation has made it easier to comply with statutory requirements to sign and produce documents, provide written information, and store records. The legislation allows electronic communications (eg emails) and electronic records to be used in place of paper in a range of circumstances, and gives an extended meaning to the concepts of ‘writing’ and ‘signature’.
Each Australian state and territory, as well as the Commonwealth, has its own electronic transactions legislation. The Commonwealth legislation – Electronic Transactions Act 1999 (Cth) (ETA) – applies to all Insurance Contracts Act 1984 (Cth) (ICA) and Insurance Contracts Regulations (Cth) (ICR) provisions dealing with ‘writing’ and ‘signing’, as well as ICA and ICR requirements to produce and store documents and retain information. This article outlines how parties can use emails and electronic records to comply with ICA and ICR requirements. All references below to ‘Commonwealth entity’ include references to an agent of that entity.
Giving information in writing – without paper
Where the ICA or ICR require information to be given in ‘writing’ to anyone other than a Commonwealth entity, the information can be given in an email, or any other form of electronic communication, provided the recipient consents: ETA s 9. Where information must be provided in ‘writing’ to a Commonwealth entity, this can be done using any electronic format that meets any IT or other requirements that the Commonwealth imposes: ETA s 9.
Signing communications – without a pen
Where the ICA or ICR require a ‘signed’ communication to be given to anyone other than a Commonwealth entity, a ‘signature’ can be provided using any method that:
- identifies the signatory and shows their intention in relation to the communication; and
- the recipient of the communication consents to: ETA s 10.
Where the ‘signed’ communication must be given to a Commonwealth entity, this can be done using any method that:
- identifies the sender and shows their intention in relation to the communication; and
- meets any IT requirements imposed by the Commonwealth: ETA s 10.
This means that, depending on the circumstances, it may be possible to ‘sign’ an email or other electronic communication by typing the sender’s name at the bottom of the communication: see eg A-G (SA) v Corporation of the City of Adelaide  HCA 3 and Legal Services Board v Forster  VSC 102.
Where the ICA or ICR require production of a document that exists in a paper form to anyone other than a Commonwealth entity, the document can be produced in electronic format if the person receiving it consents: ETA s 11. Where the document is to be produced to a Commonwealth entity, this can be done by producing an electronic form of the document that meets any IT or other requirements that the Commonwealth imposes: ETA s 11.
Recording information in writing
Where the ICA or ICR require information to be recorded in ‘writing’, it can be recorded electronically provided any storage device requirements (prescribed by the ICA or ICR) are met, and it is reasonable to expect (at the time it is recorded) that the information will be readily accessible for future use: ETA s 12.
Retaining written documents
Where the ICA or ICR require documents that exist in paper form to be retained for a particular period, the document can be retained in electronic format if, at the time the electronic format is created, it is reasonable to expect that the information will be readily accessible (in that format) and the method of generating the electronic format provides a reliable means of maintaining the integrity of the information: ETA s 12.
There are obviously a number of operational, risk and other factors to be considered when deciding whether to use electronic communications and records. The ETA provisions outlined above do not mandate the use of electronic communications and records, but simply provide organisations with the option of using them. The ETA provisions also apply to many other Commonwealth statutes, but do not presently apply to similar requirements under the Insurance Act 1973 (Cth) or Life Insurance Act 1995 (Cth) or regulations made under those Acts.
The ETA also impacts on the use of electronic transactions in the formation and performance of contracts governed by the laws of an Australian state or territory. It does this by supplementing common law contract principles and providing greater certainty about when and where electronic communications are sent and received. This will be covered in a future article.