This article is an update to our earlier insight, Witnessing now a virtual reality, which explained some of the temporary measures introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 which came into effect on 24 April 2020 in respect of the electronic execution and virtual witnessing of affidavits in Victoria.
On 12 May 2020, Victoria released the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Regulations). The Regulations temporarily permit electronic signatures and remote witnessing in Victoria by modifying the Electronic Transactions Act 2000 (Vic) (ETA), Oaths and Affirmations Act 2018 (Vic), Powers of Attorney Act 2014 (Vic) and Wills Act 1997 (Vic).
The Regulations will remain in place for 6 months and expire on 24 October 2020.
The ability to execute documents electronically has been expanded to a wider variety of documents. In addition to affidavits, agreements, statutory declarations, powers of attorney, wills, deeds and mortgages can now all be executed electronically.
Documents can be executed in a number of ways including signing a PDF on a tablet, smartphone or laptop. Where an electronic signature is used the person signing must write or stamp under their signature a statement indicating that the document was electronically signed in accordance with the Regulations. For example:
This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
Where multiple signatures are required the ETA now permits separate copies of the same document to be circulated and signed. Each person whose signature is required must receive every copy of the document – so it can be verified that all relevant signatures and consents have been obtained.
The Regulations provide for the use of ‘audio visual link’ in the execution and witnessing of agreements, affidavits, deeds, mortgages, statutory declarations, powers of attorney and wills. The use of ‘audio visual link’ permits witnessing to be conducted using software such as Skype, Facetime, Teams and Zoom.
As part of the process, a signatory must write or stamp under their signature a statement indicating that the document was witnessed using an audio-visual link in accordance with the Regulations. For example:
I, [name] attest that this document was signed in counterpart and witnessed by me by audio visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
Note that the Regulations do not change the existing requirements of witnesses to be satisfied of certain matters including the identity of the signatory. If a witness is not able to satisfy themselves by audio-visual link, the witness should not execute the document. There are also additional requirements for valid execution of each type of document covered by the Regulations and we urge you to follow the Regulations carefully.
The Regulations also do not affect the laws of any other jurisdiction (refer to our insight article Corporate electronic execution temporarily permitted for a discussion of amendments to the Corporations Act 2001 (Cth) as a result of the COVD-19 pandemic).
Please contact our offices if you require any further guidance or assistance with electronic execution or virtual witnessing of documents.