Queensland has passed legislation to permanently allow electronic signing of documents in some circumstances.
The provisions extend to signing of deeds, general powers of attorney for businesses, affidavits and statutory declarations made in Queensland.
The Justice and Other Legislation Amendment Act 2021 (Qld) (the Amendment Act) received royal assent on 24 November 2021, and will commence on a date to be fixed by proclamation.
What are the amendments?
The Amendment Act provides changes to other legislation, including amendments to:
- the Property Law Act 1974 (Qld) - with respect to signing of Deeds
- the Oaths Act 1867 (Qld) - with respect to Declarations and Affidavits
- the Powers of Attorney Act 1998 (Qld) - with respect to General Powers of Attorney for a business
It is important to note that the traditional methods of execution of documents in physical format are largely unchanged by the amendments. The Amending Act provides an additional method, rather than a replacement of the traditional methods of signing.
Further, the amendments only apply to documents made under Queensland law. As with any legal document, it is recommended that parties seek appropriate legal advice to ensure that their method of signing is valid under relevant laws.
General "Accepted Method" for electronically signing a document
The Amendment Act inserts a definition of "Accepted Method" into each of the abovementioned Acts. This definition refers to the method by which a document may be signed electronically.
The key requirements for a method of signing to conform to an "Accepted Method" are that the method must:
- identify the signatory, and their intention in relation to the document's contents
- be "as reliable as appropriate" for the circumstances or purpose of the document
- be consented to by all other signatories to the document (in the case of a multi-party document, such as a deed) - consent can be expressly stated, or implied.
For affidavits or declarations, an "Accepted Method" may be defined by applicable Court Rules or Practice Directions. (Note: A court rule or practice direction supersedes the above general "Accepted Method")
Acceptable methods of signing general powers of attorney and court documents may also be subject to further regulations.
The Amendment Act specifically provides that a Deed may now be prepared and signed by electronic means using the "Accepted Method".
Previously, common law required deeds to be prepared and signed in physical form. The Amendment Act also dispenses with the requirement that a deed must be "sealed".
A deed signed by an individual no longer needs to be signed in the presence of a witness.
Corporations may sign a deed electronically in line with standard execution protocols consistent with the Corporations Act 2001 (Cth).
Further, a document may be signed in multiple counterparts provided each counterpart is a complete copy of the document.
Affidavits & Declarations
Where an affidavit or declaration is made or signed electronically, it must be witnessed by a "special witness". (Special witnesses include Australian legal practitioners, notaries public and other persons prescribed under the Act).
The document may be signed electronically in the presence of the witness, or remotely over an audio-visual link (including by using a "substitute signatory").
There are important additional procedural requirements for the electronic signing of affidavits and declarations, including that:
- the affidavit or declaration must contain a statement that it was made and/or signed in electronic form, as applicable
- the witness must take reasonable steps to confirm the name and identity of the signatory
- the witness must include their full name, status as a "special witness", their qualification and place of employment where applicable
If the document is signed via an audio-visual link, the special witness must also:
- observe the signatory direct the subsitute signatory to sign the document (if applicable)
- satisfy themselves in "real time" that the document is signed by the signatory (or substitute signatory)
- satisfy themselves that the signatory is signing (or directing the substitute signatory) freely and voluntarily
- confirm the document as soon as practicable after witnessing it
- give the document, or a true copy or counterpart of it, to the signatory or a relevant person
General Powers of Attorney for Business
The amendments apply to a general power of attorney made in respect of a "business", which is defined as a corporation, partnership or unincorporated association.
Importantly, the amendments do not extend to general powers of attorney executed by sole traders.
It should be noted that, at the time of writing, the Commonwealth Government also has pending legislation regarding the electronic execution of documents by a corporation.
Cover Photo Credit: Kelly Sikkema via Unsplash.
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