The Federal government and some State governments have now passed permanent changes relating to the execution and witnessing of deeds.
At this stage, Queensland, New South Wales and Victoria have passed permanent changes, whilst South Australia, Western Australia, Tasmania, the ACT and Northern Territory have not. The below table summarises the current position in each jurisdiction and provides guidance on where to find further information.
Registries (including land registries) may have specific requirements for digital execution, or may require wet ink signatures. Circumstances should be considered at the time of execution.
This content was first published by Acis and has been republished with permission. See more from Acis here.
| Jurisdiction | Company Execution of Deeds | Company Witnessing of Deeds | Individual Execution of Deeds | Individual Witnessing of Deeds | Relevant legislation |
|---|---|---|---|---|---|
| Commonwealth | Electronic execution of deeds by a company is permitted. Split execution of documents by a company using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal. Each counterpart signed must be the whole document, not just the execution page. | May be signed without a witness. If witnessing, this can be done by audio visual link provided specified procedural requirements are followed. Witnessing of the fixing of a common seal can be done remotely. | N/A | N/A | Corporations Act 2001 (Cth) – Sections 110A and 127 |
| Queensland | May be in electronic form. May be signed electronically provided specified procedural requirements are followed. Split execution of documents using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal. | May be signed without a witness. If witnessing, this can be done by audio visual link provided specified procedural requirements are followed. | May be in electronic form. May be signed electronically provided specified procedural requirements are followed. Split execution of documents using multiple counterparts is permitted – each counterpart need not have any other signatures or a seal. | May be signed without a witness. If witnessing, this can be done by audio visual link provided specified procedural requirements are followed. | Property Law Act 1974 (Qld) – Sections 44 to 46 |
| New South Wales | May be in electronic form. May be signed electronically provided specified procedural requirements are followed. | Signing may be witnessed by audio visual link provided specified procedural requirements are followed. | May be in electronic form. May be signed electronically provided specified procedural requirements are followed. | Witnessing is required. Signing may be witnessed by audio visual link provided specified procedural requirements are followed. | Conveyancing Act 1919 (NSW) – Section 38 and 38A as amended by Customer Service Legislation Amendment Act 2021 (NSW) Electronic Transactions Act 2000 (NSW) – Part 2B as amended by Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) |
| Victoria | Deeds may be in electronic form and signed electronically. | May be signed without a witness. If witnessing, this can be done by audio visual link provided specified procedural requirements are followed. | Deeds may be in electronic form and signed electronically. | May be signed without a witness. If witnessing, this can be done by audio visual link provided specified procedural requirements are followed. | Property Law Act 1958 – Section 73A Electronic Transactions (Victoria) Act 2000 – Sections 12 to 12B as amended by Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 – Part 10 |
| Australian Capital Territory | The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth). | Follow Corporations Act 2001 (Cth). | May not be in electronic form. May not be signed electronically. Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause. | Must be signed with a witness. The witness must be present. | Civil Law (Property) Act 2006 (ACT) – Section 219 |
| Tasmania | The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth). | Follow Corporations Act 2001 (Cth). | May not be in electronic form. May not be signed electronically. Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause. | Must be signed with a witness. The witness must be present. | Conveyancing and Law of Property Act 1884 (Tas) – Section 63 |
| South Australia | The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth). | Follow Corporations Act 2001 (Cth). | May not be in electronic form. May not be signed electronically. Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause. | Must be signed with a witness. The witness must be present. | Law of Property Act 1936 (SA) – Section 41 |
| Western Australia | The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth). | Follow Corporations Act 2001 (Cth). | May not be in electronic form. May not be signed electronically. Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause. | Must be signed with a witness. The witness must be present. | Property Law Act 1969 (WA) – Section 9 |
| Northern Territory | The Relevant Legislation does not deal with companies – Follow Corporations Act 2001 (Cth). | Follow Corporations Act 2001 (Cth). | May not be in electronic form. May not be signed electronically. Split execution of documents using multiple counterparts is permitted but must use an appropriate counterparts clause. | Must be signed with a witness. The witness must be present. | Law of Property Act (NT) – Section 47 |
Whilst electronic signatures are becoming more commonplace with the introduction of these changes, care should be taken when executing or accepting a document with a digital signature. Correct procedures must be followed to uphold the legitimacy of the signature and to minimise the risk of fraud.
Contact us for more detailed information relating to your business’s circumstances.
