Under the Land Title Act 1994 an instrument is validly executed by an individual if it is executed in a way permitted by law and the execution is witnessed by a person mentioned in Schedule 1 of the Land Title Act. Qualified witnesses include a legal practitioner, notary public, justice of the peace and commissioner of declarations.
A person who witnesses an instrument or document executed by an individual is required to:
- first take reasonable steps to verify the identity of the individual and ensure that the individual is the person entitled to sign the instrument or document;
- have the individual execute the instrument or sign the document in their presence; and
- not be a party to the instrument or document.
Similarly, a mortgagee, and a transferee of a mortgage, are required to take reasonable steps to verify the identity of signatories who have executed the relevant instruments. A witness is deemed to have taken reasonable steps to verify the identity of the individual if they comply with practices included in the Land Title Practice Manual. The relevant identity verification practices deemed to be sufficient are set out in paragraphs [2-2005] and the Verification of Identity procedures. A Verification of Identity Standard for documents involving interests in land in Queensland are set out in [61-2700] of the Land Title Practice Manual. These require a face-to-face interview, viewing original identification documents, and checking of likeness of a person against any photographic identification. For corporations the checks include checking the Australian Securities and Investments Commission (ASIC) records. For documents signed by an attorney, the power of attorney itself must also be checked. The same rules apply in schedule 8 of the current Queensland Participation Rules for electronic conveyancing determined under section 23 of the Electronic Conveyancing National Law (Queensland).
It remains open for different steps to be undertaken to verify identity, as the provisions of the manual operate as a safe harbour not as prescribed requirements. However, the onus of proving that the actions taken constituted reasonable steps to verify the identity of the signatory would then apply and given that fraud is an exception to indefeasibility a party who fails to verify signatories may lose their interest. Failure to comply with these requirements may result in a civil penalty under these provisions but may also be grounds to argue negligence and personal liability in the event of breach (and, in suitably serious cases, disciplinary proceedings in the case of legal practitioners).
A witness is required to retain for a period of 7 years either a written record of the steps taken by the witness to verify the identity of the individual and the entitlement of the person to sign or originals or copies of the documents and other evidence obtained by the witness to verify those matters. The Registrar of Titles can ask to see that evidence at the time of registration or any time thereafter.