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Parliament confirms permanent changes to document execution, DV proceedings

The Justice and Other Legislation Amendment Bill 2021 was passed by the Queensland Parliament yesterday, making permanent many of the legislative reforms implemented last year in response to the COVID-19 pandemic.

Key reforms in the Bill

The Bill makes amendments to a number of pieces of legislation to:

  • Modernise the way certain documents are able to be created. Documents such as affidavits, statutory declarations, general powers of attorney for businesses, deeds and particular mortgages can now be signed electronically and, if there is a requirement for a witness, this can be done via audio video link.
  • Allow nurse practitioners, in addition to doctors, to sign a certificate which forms part of an advance health directive (AHD) stating that the person making the AHD appears to have capacity.
  • Streamline domestic and family violence proceedings by permanently retaining measures adopted under the Domestic and Family Violence Protection (COVID-19 Emergency Response) Regulation 2020 which allow for domestic and family violence matters to be heard via video or audio link, the operation of alternative verification processes for temporary protection orders and electronic filing, where approved by the principal registrar

Other amendments are also made to the Liquor Act 1992, Governors (Salary and Pensions) Act 2003 and the Queensland Building and Construction Commission Act 1991.

Queensland Law Society strongly supported these reforms in a number submissions to the Government and Parliament over the past 18 months. QLS commends the Queensland Government and the Department of Justice and Attorney-General for the steps taken to make these permanent changes.

Commencement

Currently, a number of temporary COVID-19 measures have been extended to 30 April 2022, including the Justice Legislation (COVID-19 Emergency Response— Documents and Oaths) Regulation 2020 (see our earlier article for details).

There are some differences between the provisions of this Bill and the temporary COVID-19 measures.

The amendments to Domestic and Family Violence Protection Act 2012, Domestic and Family Violence Protection Rules 2014, Oaths Act 1867, Oaths Act 1867, Powers of Attorney Act 1998 and Property Law Act 1974, discussed below, will commence on a day to be fixed by proclamation.

There are transitional provisions in the Bill outlining how it will apply to a process or document commenced or created under the temporary COVID-19 legislation.

Until these reforms commence, members are able to use the modified processes under temporary COVID-19 legislation.

Document reforms

The Bill amends the Oaths Act 1867, Powers of Attorney Act 1998 and Property Law Act 1974.

Affidavits and statutory declarations

The Bill allows affidavits, statutory declarations and oaths (except for oaths of office and oaths of allegiance) to be witnessed over AV link by special witnesses or prescribed persons. A ‘special witness’ includes:

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

For affidavits and statutory declarations that are witnessed in person, the Bill allows them to be signed electronically and made in counterparts if they are witnessed by a special witness or a prescribed person (however, counterparts cannot be used where they are physically signed).

For affidavits and statutory declarations that are witnessed over AV link, the Bill allows these documents to be physically signed or electronically signed, and/or made using counterparts, if witnessed by a special witness or prescribed person.

However, electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing (or e-conveyancing) is used. If a statutory declaration is lodged or deposited in the land registry or register of water allocations, it must be physically signed and must otherwise be made, signed and witnessed in accordance with the Oaths Act.

The Bill provides an “accepted method” for electronic signing. This can be prescribed by regulation or stated in a rule or practice direction of a court. If no method is prescribed, an “accepted method” means a method that:

(a) identifies the signatory and the signatory’s intention in relation to the contents of the document, and

(b) is either:

  • as reliable as appropriate for the purpose for which the document is signed, having regard to all the circumstances, including any relevant agreement, or
  • proven in fact to have fulfilled the functions described in (a), by itself or together with further evidence.

The Bill contains a requirement for the signatory to ensure that the “original physical version” of the document is kept (the version signed by the signatory/substitute signatory in wet ink).

The rules of a court and practice directions can specify a minimum retention period for the original physical versions of documents that are used in proceedings. In addition, courts, tribunals and other persons to whom a document is given can require production of the original physical version of a document.

Powers of attorney

The Bill allows powers of attorney for businesses (corporations, partnerships and unincorporated associations, but not sole traders) to be signed electronically, in counterparts and by split execution and without a witness.

The process for electronic signing is similar to the process in the amendments to the Oaths Act.

The Bill also provides that a general power of attorney for an individual under the Powers of Attorney Act or a power of attorney for an individual given under a deed must be a physical document that is signed in the presence of a witness, unless:

  • the document containing the power of attorney given by an individual under a deed is part of a commercial or other arm’s length transaction, and
  • the power of attorney is given for the purpose of the commercial or other arm’s length transaction.

However, if a general power of attorney under the Powers of Attorney Act or a power of attorney under a deed is used for a land or water dealing, it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.

During amendments in committee, it was clarified that a document containing a power of attorney given by an individual under a deed may be characterised as part of a commercial or arm’s length transaction even if the document is executed at a different time, and is separate to, other documents that form part of the transaction.

Deeds

The Bill removes the common law requirement for a deed to be executed on paper, parchment or vellum and provides that deeds can be made in the form of an electronic document and electronically signed when using an “accepted method”.

An “accepted method” for electronically signing is a method which identifies the signatory and the signatory’s intention in relation to the contents of the document, is as reliable as appropriate for the purposes of the document and is consented to by all the signatories to the document.

The Bill allows deeds to be made in counterparts and by split execution. This means that each signatory can sign an identical copy of the deed that need not contain a signature of any other person who is to sign the document. It also means that company officers are no longer required to sign the same physical document.

The Bill removes the requirement for deeds to be sealed or stated to be sealed, but instead requires the deed to contain a clear statement that it is executed as a deed.

The Bill simplifies the execution requirements for corporations and removes the requirement for corporations to use their common seal. If the corporation chooses to use its common seal, the application of the seal may be witnessed in person or by AV link. This approach mirrors the execution requirements for corporations under section 127 of the Corporations Act 2001 (Cth). These amendments apply also to corporations sole.

The Bill also allows an individual to sign a deed on behalf of a partnership or unincorporated association without a witness. The Bill removes the need for witnessing of an individual’s signature on a deed.

The amending provisions will also apply to deeds executed by the State, to clarify that the State can execute deeds.

Mortgages

Electronic conveyancing (or e-conveyancing) allows instruments and documents needed for property transactions to be digitally prepared, signed, settled and lodged. The participation rules under the Electronic Conveyancing National Law (ECNL) provide that when a mortgage is lodged through e-conveyancing, the mortgagee must obtain and hold a duplicate of the mortgage on the same terms as the lodged mortgage signed by the mortgagor.

The Bill confirms that the duplicate same terms mortgage can be made as an electronic document and signed electronically by the mortgagor or mortgagee, without the need for any witnessing, as long as it complies with section 11 of the Property Law Act 1974.

Documents not included in the reforms

Wills, enduring powers of attorney and general powers of attorney executed by an individuals, with the exception of those relating to a commercial transaction, were not included in the reforms and may only be executed in the existing way.

See also: COVID temporary measures extended to April 2022 – permanency measures to follow

Kate Brodnik is a Queensland Law Society Senior Policy Solicitor.

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