Exemptions to the ETA

The Electronic Transactions Act 1999 (ETA) covers most electronic processes under Commonwealth law. However, there are some exemptions.

What does an ETA exemption mean?

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 ETA exemption is that a person cannot rely on the exempted provisions in the ETA to complete the process.

If the ETA is exempted, it does not necessarily mean that you have to use paper methods. There may be other rules or laws that can allow, restrict or modify the use of electronic methods, without reference to the ETA.

This may be a matter of legal interpretation, so it can sometimes be necessary to seek legal advice.

When the Commonwealth ETA doesn't apply

There are several situations where the ETA might not apply, some of which are summarised below. 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. This will depend on surrounding circumstances, so you may need to seek legal advice.

Commonwealth legislation exemptions

Government agencies and legislation have exempted the ETA from Commonwealth law in several ways, including by:

  • Listing the exempted legislation in the Electronic Transactions Regulations 2020 (Regulations). For example, the Regulations exempt sections of the ETA from the Corporations Act 2001.
  • Setting out the exempted legislation in the ETA itself, including in any of the ETA's schedules. For example, schedule 1 to the ETA exempts sections of the ETA from various legislative requirements.
  • With other legislation that overrides a specific section of the ETA, such as one of the consent provisions. For example, section 474.40 of the Criminal Code Act 1995 says that certain notices from the eSafety Commissioner do not require ‘consent' from the receiving party.

If the ETA has been exempted from Commonwealth law, there can still be other ways to permit the use of electronic methods. For example, the Commonwealth Statutory Declarations Act 1959 exempts the ETA sections relating to electronic signatures under the Regulations. However, e-signatures can still be used, so long as they comply with the requirements under the Statutory Declarations Act.

Australian state and territory laws

The Commonwealth ETA only applies to Commonwealth laws, and does not apply to processes under state or territory law.

Instead, each state and territory has enacted their own Electronic Transactions Act, which confirm how electronic tools can be used to carry out paper-based processes under state and territory laws.

State and territory electronic transactions Acts

Each state and territory ETA are, in general, very similar to the Commonwealth ETA. However, each ETA may be slightly different to the Commonwealth ETA, and may be subject to different exemptions.

Contract terms that override the ETA

The ETA says that you can use electronic communications for transactions or communications that are related to a contract governed by Commonwealth law.

However, parties to a contract might agree on different ways of handling electronic or paper processes, which may override the conflicting sections of the ETA.

Example: A contract between Norah and Theodore contains a clause that requires Norah to periodically send written information to Theodore. Another clause says that all written information must be given in paper form. This second clause may override the ETA, which generally allows information to be sent electronically.

Assistance with ETA exemptions

It can sometimes be challenging to check whether there is an exemption to the ETA, and what the exemption means for the excluded process.

In addition, this page contains guidance and summary information, and not comprehensive legal advice.

If you require more detailed information, or if this is an important question for you, you can:

  • review the information on this page to help guide your enquiries
  • ask for the other party's position on the use of electronic processes – for example, whether the person you are dealing with will accept an electronic signature
  • review the relevant legislation
  • seek legal advice if necessary.