Affidavits and statutory declarations can be signed electronically and witnessed remotely, and deeds and some powers of attorney can be signed electronically, with no witnessing requirement.
See the earlier QLS Proctor article outlining more details on these reforms.
Even though these documents have been able to be signed electronically and witnessed remotely pursuant to the temporary arrangements under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020, members should be aware that there are some differences between this regulation and the permanent changes to the Oaths Act 1867, the Powers of Attorney Act 1998 and the Property Law Act 1974 made by the Justice and Other Legislation Amendment Act 2021.
Members should also refer to Uniform Civil Procedure (Affidavits and Statutory Declarations) Amendment Rule 2022, which amendments the Uniform Civil Procedure Rules 1999 to give effect to the changes to affidavits.
New statutory declaration form
The Department of Justice and Attorney-General (DJAG) has published a new statutory declaration form, which is now available for use. The new statutory declaration form can be accessed on the Queensland Government Publication portal.
The new statutory declaration form reflects the amendments to the Oaths Act 1867. The amendments now allow statutory declarations and affidavits to be made, signed and witnessed electronically by a limited cohort of special witnesses, including:1
- an Australian legal practitioner
- a government legal officer who is an Australian lawyer, provided the documents are in the course of government work
- a justice or commissioner for declarations approved by the Director-General of DJAG
- a justice or commissioner for declarations employed by a law practice that prepared the document
- a notary public
- a justice or commission for declarations employed by the Public Trustee, if the Public Trustee prepared the document.
The specified cohort of special witnesses can now make and sign statutory declarations and affidavits electronically, and witness these forms by audio-visual link.
The new statutory declaration form is not mandated; it is intended to be a tool for government, business and the community to make a statutory declaration in compliance with the new requirement in the Oaths Act 1867. Also, statutory declarations can still be made, signed and witnessed physically, in the traditional manner.
Other departments and agencies each have their own forms that contain statutory declarations. These forms are being updated and may adopt some or all of the content in these new statutory declaration forms.
Separately, courts and tribunals are in the process of updating their affidavit forms and will publish the new forms in due course through the usual processes. Queensland Courts has advised that, until new court forms are published, members who are witnessing an affidavit or statutory declaration should be mindful of the new provisions in the new Part 4, Division 2 of the Oaths Act 1867.
Footnote
1 Justice and Other Legislation Amendment Act 2021 s38.
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