Electronic signing is here to stay – Queensland

June 9, 2022

In Queensland, New South Wales and federally, legislation has been passed providing for remote company meetings, electronic signing and the witnessing of certain documents over audio-visual link (AVL) in the wake of the COVID-19 pandemic.

After initially being put in place to deal with the necessary physical distancing at the beginning of the pandemic lockdowns, these legislative provisions will now permanently aid in the efficiency and accessibility of creating and signing various legal documents.

We will cover these changes in three parts including:

• Part 1 – Queensland
• Part 2 – New South Wales
• Part 3 – The Corporations Act and companies

In this bulletin we cover Part 1 – Queensland.

In Queensland the Justice and other Legislation Amendment Act 2021 (QLD) (the Act) took effect on 30 April 2022 and it makes permanent a number of the legislative reforms implemented in 2020. This legisation modernises the ways in which certain documents are able to be created and signed particularly, general powers of attorney for businesses, affidavits, statutory declarations, deeds and particular mortgages. These documents can now be signed electronically and if they require witnessing, this may occur via AVL.

The following are some of the key changes identified for particular documents.

General power of attorney for businesses  

The new legislation provides that a general power of attorney may be made even if it isn’t sealed or stated to be sealed and it may be made in the form of an electronic document and can be electronically signed, in counterparts and without a witness.

Note this does not apply for an enduring power of attorney.

Affidavits and Statutory declarations

An affidavit or declaration may now be in the form of an electronic document and can be electronically witnessed over AVL by a special witness. A special witness is one of the following:

• an Australian legal practitioner; or
• a government legal officer who is an Australian Lawyer who witnesses documents in the course of their government work; or
• a notary public; or
• a Justice of the Peace or a Commissioner of Declarations employed by the law practice that prepared the document.

When witnessed in person, affidavits and statutory declarations can still be electronically signed and can be made in counterparts, meaning each party may sign a separate copy of the same document, if they are being witnessed by a special witness. However counterparts cannot be used where the document is being physically signed in the physical presence of a witness.

Deeds

Previously, deeds were required to be executed on paper and signed and witnessed in person.  The Act removes these requirements and allows for a deed to be in the form of an electronic document that may be electronically signed. The Act allows deeds to be made in counterparts and by split execution, meaning that the signatories can sign an identical copy of the deed without the need to be signing a document that also contains the signature of any other person who is to sign the document.

The Act removes the requirement that an individual’s signature be witnessed on a deed and the requirement that deeds be sealed or stated to be sealed has been replaced with the requirement that the deed contain a clear statement that it is executed as a deed.

Corporations are no longer required to use their common seal on a deed, however if they wish to, the application of the seal may be witnessed in person or by AVL.

An individual may now sign a deed on behalf of a partnership without a witness.

Mortgages lodged under the Electronic Conveyancing National Law

When a mortgage is lodged through e-conveyancing, the mortgagee must obtain and hold a duplicate of the lodged mortgage signed by the mortgagor, this is known as a ‘same terms’ mortgage. The Act allows for this ‘same terms’ mortgage to be made as an electronic document and it may be signed electronically by both the mortgagor or mortgagee without the need for any witnessing.

Wills and Enduring Powers of Attorney

In Queensland the temporary laws that were previously in place allowing wills, enduring power of attorney documents and advance health directives to be witnessed remotely have expired. As such these documents must now be executed on paper and in the physical presence of the required witnesses.

How we use technology at Fox and Thomas

Fox and Thomas act for clients all over Australia and internationally, particularly throughout regional and rural Queensland and New South Wales. We are acutely aware of the difficulty many clients face in signing legal documents when they live remotely.

We regularly meet with clients by videoconference and employ various apps and programs to assist our clients to sign documents validly and with the use of technology wherever possible.

To discuss your options in signing documents by AVL or meet with us by videoconference, please contact a member of our team.