Electronic Signatures and Witnessing from a Social Distance in Queensland Electronic Signatures and Witnessing from a Social Distance in Queensland

Electronic Signatures and Witnessing from a Social Distance in Queensland

26 May 2020 | COVID-19 Insights

In the context of COVID-19 and with much of the population still working from home, industry today relies more than ever on being able to transact business digitally. The legal profession is no exception.

The COVID-19 Emergency Response Act 2020 (Qld) was passed and received assent on 23 April 2020 – this Act gave the Queensland Government power to make regulations relating to the signing, witnessing, certification, and filing of documents (per section 9).

On 22 May 2020, the Queensland Government implemented regulations allowing the electronic signatures and witnessing of certain documents (the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020).

Pre-COVID-19 Law in Queensland

Under Schedule 1 of the Electronic Transactions Act (Queensland) Act 2001 (Qld) certain documents cannot be signed electronically. These included documents that needed to be:

  • Filed with a Court or Tribunal.
  • Served personally or by post.
  • Authenticated, verified, or witnessed.

For all other documents, electronic signatures were valid provided that the person signing had applied an electronic mark with the intention of giving the document authenticity, the method of signature was reliable and appropriate for the purposes of the electronic communication, and the parties have consented to the use of electronic communication and signatures.

Current Law in Queensland

The (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020) prescribes modified arrangements for the electronic signing and witnessing of many different kinds of documents.

The new arrangements for some of the most commonly signed documents include: 

For affidavits

  • They can be effectively witnessed if the witness, signatory, or other person is present by audio visual (AV) link; and
  • The signatory’s oath or affirmation is administered by a special witness (defined as an Australian legal practitioner, or a Justice of the Peace (JP) or Commissioner for Declarations (CD) approved by the Chief Executive or a JP/CD employed by a law practice or notary public, or an employee of the Public Trustee if the document is prepared by the public trustee); and
  • The affidavit’s jurat must state that the document was made or signed electronically (if applicable), made signed and witnessed in accordance with this regulation, and acknowledge that knowingly making a false statement in the affidavit may be an offence punishable by imprisonment.
  • An affidavit can be made in the form of an electronic document.

For statutory declarations

  • They can be effectively witnessed if the witness, signatory, or other person is present by audio visual (AV) link; and
  • The signatory’s oath or affirmation is administered by a special witness (see above); and
  • The document must include a statement that the document was made or signed electronically (if applicable), made signed and witnessed in accordance with this regulation and acknowledge that knowingly making a false statement in the affidavit may be an offence punishable by imprisonment.
  • A statutory declaration can be made in the form of an electronic document.

For deeds

  • A deed can be in the form of an electronic document.
  • A deed does not have to be sealed or stated to be sealed.
  • A corporation does not need to use a seal or common seal to sign a deed.
  • A deed signed by an individual does not need to be witnessed.
  • A corporation may sign a deed in a way consistent with the Corporations Act 2001 (Cth) as amended by the Corporations (Coronavirus Economic Response) Determination (No.1) 2020 (Cth), that is, it may be signed by two directors, one director and one secretary, a person who is both director and secretary of a corporation or a duly authorised agent. This Determination also amended Section 127(1) of the Corporations Act to allow the electronic signature and execution of documents.
  • An individual or a corporation may sign a deed by the signing of counterparts or true copies. These counterparts need to contain the same content but do not need to contain the signatures of any other person signing the document.
  • The deed must include a conspicuous statement that the instrument is a deed.

The making, signing, or witnessing of affidavits, statutory declarations and deeds must be done in accordance with Part 4 of the Wills and Enduring Documents Regulation. This Part imposes various requirements for witnesses, special witnesses and the procedure for signing documents electronically and can be found here.1

 

[1] A helpful summary of the requirements can also be found here.

 

Author

Robert Samut

Robert Samut

Principal

Mitchell Page

Mitchell Page

Solicitor