In a move that will assist legal practitioners and clients as they work from home and to the extent possible, keep business as usual in these unprecedented times, some states have introduced regulations pursuant to section 17 of the Electronic Transactions Act 1919 (Cth) relating to witnessing and signing of agreements to reduce physical interaction and make life slightly easier for them in the midst of the COVID-19 global pandemic. Section 17 enables states to introduce regulations to alter arrangements for: (a) the signature of documents (b) the witnessing of signatures, including requirements for certification of certain matters by witnesses and verification of identity; and (c) the attestation of documents.
New South Wales
New South Wales has enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulation) to temporarily facilitate the witnessing of documents by audio-visual link. The Regulation will expire 6 months from 22 April 2020 however, the NSW Parliament can extend the Regulation for another 12 months. In our view, the Regulation should not expire. Audio-visual communications are a prevalent means of communication and parliament should seek to ensure that the law stays in lockstep with technology.
The Regulation permits the signing of documents to be witnessed by audio visual link so long as the witness observes the signing of the document in real time (that is continuously and contemporaneously). The witness must either sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or if the signatory scans and sends a copy of the signed document electronically, the witness may countersign the document as soon as practicable after witnessing the signing of the document. Matters incidental to witnessing documents, such as verifying a signatory’s identity or the swearing or affirmation of the contents of an affidavit, may also occur by audio visual link. The Regulation applies to the following documents governed by NSW state laws:
wills
powers of attorney
deeds
agreements
enduring guardianship appointments
affidavits and statutory declarations
The Regulation does not act to prevent a person from witnessing documents using traditional methods.
Witnesses are required to endorse the document (or copy of the document) by specifying how the document was witnessed and that the document was witnessed in accordance with the Regulation. We propose that witnesses include wording (in accordance with the recommendation in section 2(d) of the Regulation) as follows: “I, [name], attest that this document was signed in counterparts and witnessed by me in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017 via audio-visual link”.
Under the Regulation, witnesses should ensure that they are “reasonably satisfied” that the document which the signatory signed is the same document that they have signed. We recommend that when observing the signing of the document, the camera angle allows the witness to see the face and signing hand of the signatory signing the document. If a witness would like to record the witnessing, prior consent of the signatory must be obtained.
To facilitate the witnessing of NSW statutory declarations, the categories of persons authorised to witness documents has been expanded in line with federal legislation to include, among others, dentists, architects, medical practitioners and optometrists.
Queensland, Victoria, Tasmania, Western Australia, Northern Territory and Australian Capital Territory
As at the date of this article, regulations have not yet been published for Queensland or Victoria. In Tasmania, section 17 of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 provides that the Minister may by notice declare that signatures or documents may be taken or evidenced by electronic means specified in the notice. However, such notices have not been declared. Further, neither Western Australia, Northern Territory nor the Australian Capital Territory have put in place any measures to allow for the witnessing of documents by audio-visual link or any similar measures.
We anticipate that measures similar to those in NSW will come into place in those jurisdictions.
South Australia
In South Australia, the COVID-19 Emergency Response (Section 16) Regulations 2020 (SA) has expanded the categories of persons authorised to witness a statutory declaration to the broader list of persons to include, among others, health practitioners, members of Engineers Australia, full time teachers and veterinary surgeons. However, South Australia has not put in place any measures to allow for the witnessing of documents by audio-visual link, or other substantial amendments to current requirements in that regard. Rather, the witnessing, executing, certifying, stamping, swearing or affirming a document is excluded from taking place over audio visual means of communication (see COVID-19 Emergency Response (Section 17) Regulations 2020 (SA)).
This article is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances.
As these regulations are temporary and unfolding, if you are uncertain as to current regulations around witnessing, certifying, affirming or swearing of legal documents, please contact us at Arnotts Technology Lawyers.