Given the need for citizens to comply with social distancing requirements, the COVID-19 pandemic has seen governments implement legislative changes to allow for the greater use of technology in creating, signing and witnessing a variety of documents. In Queensland, new regulations now allow for documents including deeds, affidavits, declarations, general powers of attorney and mortgages to be made and executed electronically as well as for documents to be witnessed through audio visual link.

While the changes provide welcome relief and clarity in the current climate, it is important to note that these amendments are only temporary and are set to expire on 31 December 2020.

Background

Queensland’s COVID-19 Emergency Response Act 2020 permitted the creation of regulations to modify or suspend legislative or common law requirements in respect of (among other things) the making, execution, witnessing, and verification of documents.

On 15 May 2020, regulations were initially passed under the Justice Legislation (COVID-19 Emergency Response — Wills and Enduring Documents) Regulation 2020 allowing the witnessing of wills and enduring documents (i.e. enduring powers of attorney or advance health directive) to be satisfied if the witness is present through audio visual link.

On 22 May 2020, the Justice Legislation (COVID-19 Emergency Response — Wills and Enduring Documents) Amendment Regulation 2020 was passed which, while also changing the name of the regulation to the Justice Legislation (COVID-19 Emergency Response — Documents and Oaths) Regulation 2020 (Regulation), has expanded the types of documents that can be made and signed electronically as well as be witnessed through audio visual link.

Documents that can be signed and witnessed through audio visual link

Provided certain requirements are met (discussed below), the execution and witness process in respect of wills, enduring documents, affidavits, declarations, oaths and affirmations and general powers of attorney for an individual can now be satisfied via audio visual link. This includes witnessing execution of documents by a signatory or alternatively, witnessing the direction of a signatory via audio visual link for a substitute signatory to sign the document in front of a physical witness and witnessing the subsequent execution of the relevant document. It is important to note that any recording of the signing or witnessing of a document can only be made with the consent of the signatory, witness and, if applicable, the substitute signatory.

In the case of affidavits and declarations, the signatory’s oath or affirmation for the affidavit is to be administered by audio visual link by a special witness.

Documents that can be made and executed electronically

In a move that eliminates the uncertainty created by other legislative amendments throughout other Australian jurisdictions, the Queensland Regulation has confirmed that a deed:

• Can be executed electronically (i.e. through the insertion of an electronic signature)
• Can take the form of an electronic document, eliminating the requirement for a deed to be written on paper or parchment
• Can be executed by signing a counterpart or a true copy of the instrument. This includes the ability for directors and company secretaries of a company to sign in counterparts for the  company
• Signed by a company does need to be signed under its common seal
• Signed by an individual does not need to be witnessed
• Does need not include an explicit clause about the methodology used for electronically executing the instrument

In addition, the Regulation provides that:

1. Affidavits and declarations can be made in the form of an electronic document and signed electronically provided that they are made, signed and witnessed in accordance with the Regulation. Affidavits and declarations much each contain certain information as set out in the Regulations.
2. General powers of attorney may be:
   1. Made in the form of an electronic document and can be signed electronically
   2. Made for a corporation whether or not in the presence of a witness
   3. Made even if it is not sealed or stated to be sealed
   4. Signed for a corporation in counterpart

General powers of attorney for an individual must still be witnessed. As mentioned above, witnessing of these documents can occur via audio visual link by a special witness.

Finally, the consent of a signatory, witness or any other person is not required for any of the above documents to be made and signed electronically.

Provisions relating to mortgages

Under the Regulation, mortgages can now be signed electronically by or for the mortgagor and do not need to be witnessed provided the:

1. Mortgage is lodged under section 7 of the Electronic Conveyancing National Law (Queensland) (i.e. through PEXA)
2. Mortgagee (i.e. the lender), holds a document that grants a mortgage by the mortgagor (i.e. borrower), that:
   a. Is on the same terms and conditions as the lodged mortgage
   b. Complies with the requirements contained in section 11 of the Property Law Act 1974 for instruments to be in writing

Requirements for signing and witnessing documents by audio visual link

If a person directs another to sign a document by audio visual link, then the witness must:

• Be a special witness (e.g. an Australian legal practitioner or a notary public), or if there are two or more witnesses, at least one must be a special witness
• Observe the person direct the other person to sign the document
• Be satisfied that the substitute signatory is permitted to sign the document according to the Regulations
• Take reasonable steps to verify the identity of the person signing the document
• Be satisfied that the person instructing the individual to sign the document is doing so freely and voluntarily

In addition to the above, the requirements for a document to be witnessed by audio visual link are:

1. That the witness must be a special witness or if there are two or more witnesses, at least one must be a special witness
2. The audio visual link must enable the witness to be satisfied, by the sounds and images made by the link, that the person is signing the document
3. The witness observes the signatory or substitute signatory signing the document in real time
4. The signatory or substitute signatory must sign each page of the document
5. The witness must be satisfied that the signatory is freely and voluntarily signing the document

Please note that point (4), does not apply to affidavits or a declaration.

The Regulations do not expressly state whether a witness is required to reside or be located in Queensland. However, the definition of ‘audio visual link’ contemplates audio and visual communications between persons at difference places without reference to this occurring within Queensland and further, the provisions relating to witnesses and special witnesses are broad and do not make reference to the location of a witness.

A witness is also required to verify particular matters (e.g. the identity of the signatory) and in certain circumstances, must sign a certificate in accordance with the Regulations. If an official version of a document is to be lodged or deposited in the land registry, this certificate must be lodged or deposited with the official version.

If you require assistance in understanding the new regulations or are unsure as to the requirements for having your document signed and witness, please reach out to your Dentons contact and we can assist.