Queensland Law Society has backed proposed reform that would allow Commonwealth statutory declarations to continue to be signed electronically and witnessed via audio-visual link.
The Federal Government’s temporary measures allowing electronic execution of the documents, which were implemented in response to the COVID-19 pandemic, are due to expire on 31 December 2023.
The Society provided feedback to the Law Council of Australia on a consultation paper by the Attorney-General’s department, Modernising Document Execution: Consultation on proposed reform to the execution of Commonwealth statutory declarations.
The paper outlines the proposal to amend the Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018 to allow a Commonwealth statutory declaration to be executed by:
- traditional paper-based execution (requiring wet-ink signatures and in-person witnessing) or
- e-execution (allowing electronic signatures and witnessing via audio-visual link) or
- digital execution (end-to-end online execution, with digital identity providers to verify identity and satisfy witnessing requirements).
It states the changes would reduce time and costs, as well as improve accessibility for people living with a disability and people located in rural, regional or remote areas.
QLS’s Litigation Rules Committee and Privacy, Data, Technology and Intellectual Property Law Committee compiled the response to the paper.
“Permitting electronic signing and witnessing of statutory declarations via audio-visual link improves access to justice, from both a cost and efficiency perspective, for our members and the general population,” the Society said.
“The ability to deal with documents in this manner has allowed individuals to create and execute documents during the COVID-19 pandemic without the significant impost on their health, time, caring responsibilities and finances (travel and other costs) that physically attending an office necessitates. Importantly, there have been particular benefits for vulnerable people and people who live and work regionally or remotely.
“There are also benefits for law firms and their clients by improved efficiencies and reduced legal costs. More broadly, there are significant flow-on effects for courts, government departments, other agencies and the community of more cost-effective and timely delivery of documents and progression of legal matters.”
The Society also supported the new proposal to permit digital execution of Commonwealth statutory declarations, using existing digital identity infrastructure.
“An advantage of this is that users must only prove their identity once to the digital identity system. This will mean that lawyers and witnesses will not need to receive, validate, take copies and securely store the identification of documents of the declarant. This is particularly beneficial in the context of identification documents being compromised during recent data breaches.”
However, the Society warned that “any prescriptive requirements must be technology-neutral and drafted in such a way as to respond to rapid changes”, given the pace of changes in technology.
It also supported the retention of the ability to sign a document using traditional, paper-based execution.
“It is essential that individuals who do not have access to electronic or digital means of signing, or do not have the necessary identification documents required by the digital identity system, are permitted to sign documents using wet-ink in the presence of a qualified witness,” it said.
Submissions closed on 28 July 2023. The Law Council of Australia incorporated QLS’s suggestions in its submission to the Attorney-General’s Department on 2 August.