Witnessing now a virtual reality

Lockdowns due to the COVID-19 pandemic have created barriers to executing documents. As a means to nimbly respond to legal and economic problems created by the pandemic, both Victorian and NSW governments have passed legislation – the COVID-19 Omnibus (Emergency Measures) Act 2020 (Victorian Act) and the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW Act) – to facilitate expedited making of regulations to existing laws, including in respect of electronic execution in both states.

Issues regarding the requirement to personally sign and witness some documents have been of particular concern for businesses, given the social distancing measures in place. Both states now have capacity to quickly create regulations to facilitate ‘business as usual’ and have removed the requirement for a witness to be physically present when witnessing the execution of certain documents.

In this insight article we look into the current requirements to witness documents in NSW and Victoria. For further information on the electronic execution of documents by companies, refer to our article Corporate electronic execution temporarily permitted.

New South Wales

NSW has implemented the Electronic Transactions Amendment (COVID-19 Witnessing Documents) Regulation 2020 (NSW Regulation), which took effect on 22 April and will remain in place for a maximum period of 6 months (but can be extended to a maximum period of 12 months). The NSW Regulation applies to the Electronic Transactions Act 2000 (NSW) and creates an option for witnessing documents by videoconference such as FaceTime, Zoom, Skype and WhatsApp. The NSW Regulation specifically mentions powers of attorney, deeds, agreements, affidavits, statutory declarations and wills. 

In order for a document to be validly signed and witnessed via AV-link, the witness must:

    • observe: watch the person signing the document in real time (through the video functionality); 
    • confirm: either attest or confirm that they have witnessed the signature on the document by signing an identical counterpart of the document or a hard copy bearing the signatory’s signature that is scanned and emailed. The witness will also need to be “reasonably satisfied” that the document that the signatory signed is the same document that the witness signed; and 
    • endorse: either endorse the document or a copy of the document with a statement that specifies the method used to witness the signature and that the witnessing was done in accordance with the regulations. 
    • The NSW Regulation gives the example “I, [name], attest that this document was signed in counterpart and witnessed by me over audio-visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2020”.

Victoria

On Friday 24 April 2020, assent was given to the Victorian Act, which amends the Oaths and Affirmations Act 2018 (Vic) by allowing for an affidavit to be signed electronically and witnessed virtually. 

In order for an affidavit to be validly signed electronically and witnessed via AV-link, the statement on the affidavit of when, where and before who it was sworn must include the following information, that:

    • the affidavit was signed or initialled by the deponent by electronic means;
    • specified things (such as witnessing) in respect of the affidavit were done by means of audio-link or AV-link; and
    • the affidavit is a scanned hard copy or an electronic copy, not an original. 

Whilst (at time of writing) no regulations pursuant to the Victorian Act have been made to the Electronic Transaction (Victoria) Act 2000 (ETA), the Victorian Act permits regulations to be made to laws pertaining to (amongst other things) the witnessing, execution or signing of legal documents such as affidavits, statutory declarations, deeds, powers of attorney, contracts or agreements, undertakings and wills and the certification of documents. 

It appears there is possibility for further temporary measures in respect of virtual witnessing and electronic execution of documents other than affidavits in Victoria. 

In the meantime, it is recommended that caution should be exercised where witnessing is required in a transaction that is not under the law of Victoria or New South Wales, particularly in respect of documents other than affidavits in Victoria.

Please contact our offices if you require any further guidance or assistance with electronic execution or virtual witnessing of documents.