On 22 May 2020, Queensland amended certain emergency regulations to permit amongst other things (see Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020):
- electronic signing of affidavits and statutory declarations; and
- witnessing of such documents and the taking of oaths via audio visual link.
These welcome reforms were introduced in recognition of the fact that ‘the making, signing and witnessing of these important documents and the taking of oaths has been impeded by the COVID-19 emergency, including the requirements for social distancing and in some cases the requirement for individuals to be in self-isolation‘.1
Summary of reforms
In summary, for affidavits and declarations:
- if made, signed or witnessed in the traditional manner, then nothing has changed;
- they may instead be made in electronic form and be signed electronically if you comply with part 4 of the amended regulations;
- physical presence is no longer required for the purposes of making, signing or witnessing if:
- the relevant people are present by audio visual link;
- the oath or affirmation is administered by a special witness (relevantly this continues to include an Australian legal practitioner); and
- the making, signing or witnessing is in accordance with part 4; and
- the requirement to hold a bible and for the person administering the oath to say certain words is not applicable for affidavits or regulations made, signed or witnessed in accordance with this regulation.
There is scope to use a substitute signatory for the signing of a document in the physical presence of a witness, however it is anticipated this would be rare and a last resort. There is also provision for affidavits by counterpart.
Electronic signing
There is a definition of ‘electronically sign’ which is essentially taken from the Electronic Transactions (Queensland) Act 2001, so should not present any particular difficulties.
Fortunately the regulation does not prescribe any particular form of technology – affording a degree of flexibility. In this regard, the explanatory notes record that electronic signing can occur through methods such as:
- the use of electronic platforms which allow electronic signing of documents (such as Docusign);
- copying and pasting an image of a handwritten signature; or
- applying a digital signature to the document (e.g. using Adobe).
Witnessing via audio visual link
If witnessing via audio visual link, the person administering the oath or affirmation must be a special witness (as noted above, this includes an Australian legal practitioner).
Further, under part 4 of the regulations:
- the audio visual link must enable the witness to be satisfied in real time, by the sounds and images made by the link, that the signatory is signing the document;
- the witness must be satisfied the signatory freely and voluntarily signed the document;
- the witness must take reasonable steps to verify the identity of the signatory and that the name of the signatory matches the name of the signatory on the document; and
- the witness has to confirm the document by being satisfied that it is the document that was signed or a true copy, must confirm it as soon as practicable after witnessing it, and after confirming it must then give it or a true copy to the ‘relevant person’ – ie for an affidavit/declaration to the person who made it or a person to whom that person directs (in practice, that may simply be the lawyers for the party for whom the affidavit is made).
Formalities
There appears to have been concerns raised in some quarters about these arrangements and, in particular, about the risks of removing the requirement for physical presence. As a consequence, a number of safeguards were introduced, including:
- the requirement for special witness (mentioned above), on the basis that they were thought more likely to have access to and be familiar with using audio visual links, they have obligations to protect confidentiality, and were thought to have appropriate training or experience to assure themselves that the document they witness is the same as the document that the signatory signed and that the signatory is making the document freely and voluntarily; and
- the requirement for a special clause in the document acknowledging that it was made, signed and witnessed in accordance with the regulation, making statements as to truth, and expressly acknowledging that a person who provides a false matter commits an offence.
Sunset or sunrise?
These reforms mean that, even with social distancing requirements in place, important documents can continue to be made, and the scope for delays in proceedings is reduced. However they can also provide long sought-after benefits in terms of efficiency and cost-effectiveness.
At this stage, the regulation (having been made under the COVID-19 Emergency Response Act 2020) will expire on 31 December 2020. In the meantime, it is hoped that practitioners, clients and the courts will experience the benefits of these reforms such that they will become a permanent feature of modern day litigation.
1 See the explanatory notes.
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