The new provisions provide an ability for commercial parties and lawyers to continue using electronic signing tools and other platforms, which have become business as usual post the COIVD-19 pandemic. The 2021 Amendments largely adopt the existing temporary measures under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 and harmonise the requirements for paper and electronic deeds in Queensland. Sections ss 44-46 of the Property Law Act 1974 are replaced with new provisions similar in effect to the Regulation but including a requirement for express or implied consent to the digital signing method, consistent with the requirements of the Electronic Transactions (Queensland) Act 2001, s 14. In addition, expanded provisions clarifying execution of deeds in paper or electronic form by corporations, partnerships, unincorporated association, statutory corporations, corporations sole and State are added to the Property Law Act 1974.

The 2021 Amendments also amend the Powers of Attorney Act 1998. After commencement the general rule will be that general powers of attorney (GPA) will need to be signed and witnessed in paper. Two exceptions are:

1. a GPA granted for a business (as defined in the Powers of Attorney Act 1998, s 24A); or
2. a specific power granted as part of a commercial transaction for the purpose of the transaction (Property Law Act 1974, s 46A).

Specific provision for lodgement of electronic deeds and GPAs in the Titles Registry is included in both the Property Law Act 1974 and Powers of Attorney Act 1998.

These changes apply only to deeds and powers of attorney governed by Queensland law. If the deed or POA is governed by the law of another jurisdiction different rules may apply. Best practice is to specify the governing law in the deed. If the governing law is not specified difficulties may arise where parties are located and sign in different jurisdictions, the subject matter of the contract is located in a different jurisdiction to the business of the parties and the contract was formed via electronic means making the place of formation more complex to determine.

A detailed explanation of the new laws will appear in the New Developments tab of the Queensland Conveyancing Manual soon.

Deeds

A summary of the requirements for a valid deed under the Property Law Act 1974 are set out in the table below. The table provides a comparison between the position under the Property Law Act 1974 prior to the temporary regulations, under the temporary regulations from 22 May 2020 and after the commencement of the 2021 Amendments.

Transitional provisions

The transitional provisions in s 360A Property Law Act 1974, make provision for where a deed is signed by one individual or corporation prior to commencement and another after commencement. The principles are:

1. the execution by individuals or corporations prior to commencement is governed by the repealed regulation;
2. the execution after commencement is governed by the new provisions;
3. an individual or corporation may sign the deed in electronic form after commencement even if the deed was signed in paper prior to commencement;
4. consent of the party who signed prior to commencement to electronic signing can be inferred from conduct prior to commencement.

General Powers of Attorney

A summary of the requirements for a valid GPA under the Powers of Attorney Act 1998 are set out in the table below. The table provides a comparison between the position under the Powers of Attorney Act 1998 prior to the temporary regulations, under the temporary regulations from 22 May 2020 and after the commencement of the 2021 Amendments.

(AV) indicates that witnessing by audio visual means is permitted.

Specific powers of attorney in commercial documents

A new provision is added to the Property Law Act 1974, s 46A validating a power of attorney (POA) signed by an individual where the POA is contained in a deed that is electronically signed under the Property Law Act 1974. In this case the POA contained in the deed will be valid if signed (no witness is required) in electronic form provided:

1. the document containing the POA is a commercial or other arms length transaction; and
2. the POA is given for the purpose of the transaction.

This means that POAs in documents such as mortgages, leases and other securities will be valid if signed in electronic form, provided the POA is given as part of and for the purpose of the transaction.

It should be noted that the Powers of Attorney Act 1998, s 12 does not apply to “a power of attorney created by and contained in another instrument, for example, a mortgage or lease, that is signed by, or by direction of, the principal. A cross reference to powers of attorney under the Property Law Act 1974, s 46A has been added.