Significantly, the temporary regulations have unequivocally abrogated the common law requirement that a deed had to be written on paper or parchment and removes the requirement for a deed signed by an individual to be witnessed.
Key points
- On 23 April 2020, the COVID-19 Emergency Response Act 2020 created regulation-making powers in relation to particular matters including the signing and witnessing of documents, the certification of matters by signatories or witnesses and the making of a document in a particular way or form.
- On 15 May 2020, the Queensland parliament passed the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 to allow wills and enduring documents to be witnessed via AV link during the COVID-19 pandemic.
- Today, the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Amendment Regulation 2020 has expanded the class of documents that can be witnessed via AV link and allows documents (including deeds) to be signed electronically.
- The regulations will expire on 31 December 2020 and will be limited to having effect in Queensland.
Deeds
The regulations explicitly remove the requirement for a deed to be made on paper or parchment and for a deed signed by an individual to be witnessed. We point out that unlike in other jurisdictions, this has been achieved through clear and direct language which leaves no room for uncertainty as to its effect.
The regulations also provide that a deed can be signed in a way consistent with the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 and for an individual or a corporation to sign a deed in counterparts. The latter purports to remove the legal uncertainty in relation to whether a deed executed by two company officers or by two attorneys under a Queensland law governed power of attorney, can be signed on separate counterparts.
Two other points of interest:
- the regulations remove the common law requirement for a corporation to use its common seal to sign deeds (this requirement is not, in any event, necessary for Australian companies executing documents under s 127(1) of the Corporations Act) thus making it easier for foreign corporations to execute deeds (including general powers of attorney) where it is done as authorised by the law in the place of their incorporation; and
- counterparties may be restricted from refusing to accept electronic deeds. The regulations do this by providing that a deed may be made in electronic form even without the consent of another signatory or party.
Mortgages
The regulations provide that a mortgage that is held by a mortgagee on the same terms as the mortgage that is lodged via an Electronic Lodgement Network Operator (such as PEXA) can be electronically signed and does not need to be witnessed provided it complies with section 11 of the Property Law Act 1974 which relates to the requirement for instruments to be in writing.
General powers of attorney
The regulations do not remove a requirement under another law for a general power of attorney by an individual to be witnessed – although this is expressly done in the case of corporations. For example, if a general power of attorney for an individual is lodged with the titles registry, it is required to be witnessed under the Land Title Act 1994. However, the power of attorney may be witnessed by a special witness (examples include an Australian lawyer or Justice of the Peace) via AV link.
Affidavits and statutory declarations
Affidavits and statutory declarations may be made in the form of an electronic document and witnessed via AV link provided the witness is a special witness.
The affidavit or declaration must include a statement to the effect that the document was made, signed or witnessed in accordance with the regulations and acknowledges that making a false statement may be an offence punishable by imprisonment.
Wills and enduring documents
The regulations allow wills, enduring powers of attorney and advance health directives (the latter two referred to as enduring documents) to be witnessed via AV link by a special witness. A special witness who witnesses the signing of a document via AV link must sign a certificate that must be kept with the document and states particular matters, including that the document was signed and witnessed in accordance with the regulations.
AV link witnessing requirements
The regulations include the following general requirements for witnessing via an AV link:
- if applicable, the witness observes the signatory direct the substitute signatory to sign the document;
- the AV link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document;
- the witness observes the signatory or substitute signatory signing the document in real time;
- the signatory or substitute signatory signs each page of the document; and
- the witness must be satisfied that the signatory is making the document freely and voluntarily.
All of the changes described above will have effect until the end of the year.