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UPDATE (6 August 2021): On 30 June 2021, the modified arrangements for making, signing or witnessing wills and enduring documents expired. As of 1 July 2021, these documents now need to be made, signed and witnessed under the ordinary law – for more information, read here.
Queensland Parliament is considering further extending, until 30 April 2022, a range of legislative measures introduced to respond to the COVID-19 pandemic. These measures are presently due to expire on 30 September 2021. See Public Health and Other Legislation (Further Extension of Expiring Provisions) Amendment Bill 2021 and the parliamentary inquiry page for more information. It includes the proposal to extend the Justice Legislation (COVID-19 Emergency Response— Documents and Oaths) Regulation 2020 which allows the modified requirements or arrangements to continue to apply for the making, signing and witnessing of affidavits and statutory declarations, advance health directives (permitting witnessing by particular nurses), general powers of attorney, deeds and particular mortgages.
Parliament has extended the operation of much of the emergency response legislation from 30 April to 30 September 2021 (or an earlier date if prescribed).
The COVID-19 Emergency Response and Other Legislation Amendment Act 2021 amends the expiry date of certain temporary measures in the COVID-19 Emergency Response Act 2020 (COVID-19 ER Act) and the Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020.
The amendments have the effect of:
- extending the temporary electronic signing and witnessing measures for wills, enduring documents, affidavits, statutory declarations, oaths and affirmations, deeds, general powers of attorney and particular mortgages – see the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 for more detail
- extending the operation of regulation-making powers under the COVID-19 ER Act related to residential tenancies and retail and other relevant leases
- extending the operation of the legislative modification framework of general application across the statute book (the modification framework) which provides for the making of secondary instruments under the following broad global heads of power:
- reducing physical contact between persons
- statutory timeframes
- proceedings of courts/tribunals.
The extension has been achieved by amending the definition of “COVID-19 legislation expiry day” in the COVID-19 ER Act to be “30 September 2021” or an earlier date prescribed by regulation.
Queensland Law Society generally supported the extension of the measures to ensure that the legislative heads of power COVID-19 ER Act were continued, providing the flexibility needed to respond to the ongoing developments of the COVID-19 pandemic.
The extended temporary legislative measures also include provisions relating to:
- the planning framework and environmental approvals
- the operation of bodies corporate
- rights and obligations under negotiated lease agreements and rent relief arrangements for retail shops and commercial leases
- the ongoing operation of the Queensland Small Business Commissioner
- regulation-making powers in relation to the operation of the rooming and accommodation and manufactured homes sectors
- public health-related provisions governing the care of adults with a cognitive or intellectual disability, the delivery of mental health services, and the operation of prisons and youth detention centres
- liquor sales (allowing temporary takeaway liquor sales by operators of licensed venues disrupted by COVID-19 and removing restrictions on artisan distillers’ sales of liquor to the public)
- court-ordered COVID-19 testing and the provision of test results to specified persons
- regulation-making powers regarding physical contact between persons, proceedings of courts/tribunals, and authorisations to do things (such as making statutory declarations, witnessing documents or publishing notices) electronically.
As outlined in the explanatory notes: “The COVID-19 public health emergency declared in January 2020 is ongoing and measures which protect the health, safety and welfare of Queenslanders, mitigate the spread of COVID-19 in the community, and facilitate the continued functioning of Queensland’s institutions and economy to the extent possible are still required.”
The objectives of the Bill are to:
- extend the operation of various legislative measures to respond to other impacts of the COVID-19 public health emergency (COVID-19 legislation), to apply up to 30 September 2021, or on an earlier date as prescribed
- allow local governments to decide, by resolution at a meeting other than a budget meeting, what rates and charges are to be levied for the 2021-22 financial year (including providing for decisions to be revisited later during the year)
- provide for various measures to facilitate the holding of local government by-elections and fresh elections in a way that helps minimise serious risks to the health and safety of persons cause by the COVID-19 public health emergency, including providing for penalty infringement notices to be issued for certain electoral offences, and
- extend the operation of temporary local government and committee meeting provisions which allow such meetings to be held via audio/audio-visual link, allow meetings to be closed to the public for health and safety reasons associated with COVID-19, and require real-time public viewing or listening to meetings where audio-visual links are used.
The COVID-19 Emergency Response and Other Legislation Amendment Act 2021 was assented to on 23 April 2021.
QLS also supports the permanent implementation of a range of the emergency measures and encourages the Government to begin consultation with stakeholders about the permanent implementation of such measures.
We will continue to advocate for the retention of the beneficial aspects of the emergency reforms where those reforms benefit our members and the community by improving access to justice, reducing costs and improving efficiency for both clients and lawyers.
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One Response
Covid may have a silver lining, allowing audio/visual for making, signing or witnessing wills and enduring documents. The audio/visual regime should be extended into the ordinary law for making, signing or witnessing wills, enduring documents, signing and witnessing of affidavits and statutory declarations, advance health directives (permitting witnessing by particular nurses), general powers of attorney, deeds and particular mortgages.
The advantages of audio/visual are: 1 Speed. Documents can be signed on approval, not just when the client can physically meet. 2 Cheaper. No physical travel required. 3. Distance or remoteness. Neither of these are barriers. 4. Access. You are no longer excluded from hospitals or aged care. Clients with capacity can be contacted notwithstanding lockouts. 5. Evidence. You have a recording of the process for subsequent use should questions arise. The disadvantages would be 6. Capacity is harder to determine. 7. Coercion, who else is in the room?
I suggest we all make submissions to the AG & Government for the permanent extension of this technology.