14 Oct 2021

Electronic signing is here to stay – COVID-19 document reforms likely to be made permanent in Queensland

By Michael Richardson, Georgie Groves

Queensland looks to adopt electronic signatures and remote witnessing as the new normal in response to changing business needs in the wake of the COVID-19 pandemic.

While Queensland has been somewhat sheltered from ongoing COVID-19 lockdowns, the impacts on interstate business have been felt across the nation. Like other jurisdictions, Queensland has shown a willingness to take measures to improve the efficiency of document execution and witnessing through temporary reform, and is now looking make certain measures permanent with the Justice Legislation (COVID-19 Emergency Response—Permanency) Amendment Bill 2021 (Qld) (Permanency Bill) introduced to Parliament on 15 September 2021. The Permanency Bill, if passed, will amend various pieces of legislation to effect permanent document reform, including in particular the Oaths Act 1867, Powers of Attorney Act 1998 and the Property Law Act 1974.

What temporary measures are likely to be made permanent?

Document reform measures were first introduced in 2020 by the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 (Qld) with the expiry date of the reforms extended to 30 April 2022 by the Public Health and Other Legislation (Further Extensions of Expiring Provisions) Amendment Bill 2021. If passed, the Permanency Bill will give Queenslanders certainty that a raft of the existing measures which businesses have become accustomed to (or even reliant on) will remain in place.

These measures will enable:

  • most documents to be signed electronically, including deeds, affidavits, statutory declarations and oaths;
  • witnessing (if required) to occur by audio visual link for most documents;
  • general powers of attorney for corporations, partnerships and unincorporated associations to be signed electronically without a witness; and
  • deeds to be signed (electronically or in a physical form) without a witness.

As with the temporary measures currently in place, where witnessing occurs by audio visual link, the category of eligible witnesses will be restricted to "special witnesses", and there are certain procedural steps that will need to be carried out.

Counterparts and split execution

The Permanency Bill looks to alter the existing common law position in Queensland and achieve consistency with the Corporations Act 2001 (Cth) by allowing deeds to be signed in any number of counterparts using electronic signatures and split execution, provided the documents are signed using an "accepted method".

An "accepted method" for signing a deed will be a method which:

  • identifies the signatory and the signatory's intention;
  • is as reliable as appropriate for the purposes of the document; and
  • is consented to by all the signatories to the document.

Platforms such as Adobe Sign and DocuSign purport to have solutions that satisfy these requirements and demonstrate the “authenticating intention” of the signatory.

Will electronic signatures work for all documents?

Parties must consent to the use of electronic signatures, and it is not compulsory to do so. However, it is likely that boilerplate document provisions will provide specifically for electronic signatures and counterparts, and will contain a consent for electronic signatures to be used, such that the signatory will not separately be asked to consent.

Documents which will not qualify for electronic signing include:

  • enduring powers of attorney;
  • general powers of attorney by individuals or sole traders (subject to some exceptions for commercial transactions); and
  • documents required by the Land Titles Office to be physically signed and witnessed.

If the Bill is passed, it will be important to know whether a particular document can be signed electronically and, if witnessing is required, what procedural steps must be followed.

Timeline for permanent reform

The Permanency Bill is currently with the State Development and Regional Industries Committee for report by 1 November 2021. We will prepare a further Insights article when the Permanency Bill passes to outline the changes in more detail.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.