Snapshot
- A digital signature on an electronic document is the equivalent of a wet signature on a paper document. The ‘attribution rule’ allows a client to be bound by a subscriber’s digital signature, so each party in the transaction can be assured of the document’s validity.
- By giving a certification, subscribers give assurances that they have acted in good faith. If examined, subscribers must be able to demonstrate compliance at the time of signing.
- The ‘right to deal’ is an obligation on all subscribers to take ‘reasonable steps’ to verify, sight, and keep supporting evidence that their client is a legal person who has the right to deal with the subject land.
The first of this two-part series on e-conveyancing essentials discussed the ‘VOI’ and client authorisation, the conveyancing rules and exceptions to the standing requirement to lodge electronically, plus some key differences between priority notices and caveats (see: ‘Essential concepts for electronic conveyancing’ 58 The Law Society of NSW Journal, Aug 2019, 84-85). Here, the authors go on to discuss the ‘attribution rule’, certification rules, and the right to deal.
The ‘attribution rule’
In a paper settlement, standard practice is for documents (including registry dealings) to be signed with a wet signature. When settlement takes place using an Electronic Lodgment Network (‘ELN’), documents are digitally signed by a subscriber or signer using a digital signature. Once a client authorisation has been given, there is no further requirement for the client to sign registry dealings to settle electronically – the subscriber is authorised to digitally sign in the ELN on the client’s behalf. Under the Electronic Conveyancing National Law (NSW) (‘ECNL’), a digital signature is defined as ‘encrypted electronic data that is intended for the exclusive use of a particular person as a means of identifying that person as the sender of an electronic communication or the signer of a document’. In other words, a digital signature is the electronic equivalent of an individual person’s wet signature on a paper document.
