In recognition of the challenges caused by quarantine in the time of COVID-19, NSW has passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (Regulation), which came into effect on 22 April 2020. The Regulation amends the Electronic Transactions Regulation 2017 (NSW).
The key aim of the Regulation is to enable the signing of a legal document to be witnessed via audio visual link and without having the witness physically present.
What is an audio-visual link?
An ‘audio visual link’ is defined as ‘technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing’, such that platforms such as Skype and Zoom would be acceptable.
What documents are affected?
The Regulation will be in place for 6 months (until 22 October 2020) unless extended by the NSW government to a maximum of 12 months.
The following ‘Documents’ are affected by the Regulation:
a power of attorney or an enduring power of attorney;
a deed or agreement;
an enduring guardianship appointment;
an affidavit, including an annexure or exhibit to the affidavit; and
a statutory declaration.
The Regulation enables the above Documents to be witnessed by audio visual link and allows for arrangements in relation to witnessing and the attestation of the Documents (such as verification of identity confirmation) to be performed by audio visual link. An individual signatory and witness need not be in the same physical space.
The Regulation does not:
remove the need for the Document to be signed physically by ‘wet ink’ (as opposed to a digital signature), where required. We note that in NSW, amendments to the Conveyancing Act 1919 and the Real Property Act 1900 in 2019 permit some types of Documents to be created and executed by individuals electronically. However, as there is legal uncertainty regarding whether companies can execute a deed under s 127 of the Corporations Act and sign electronically, we recommend that companies always adopt the ‘wet ink’ approach (with all signatories signing the same Document); or
permit the certification of original paper documents by audio visual link. To certify an original paper document, that original paper document must be physically in front of the certifier.
How do I witness execution by audio-visual link?
A person witnessing a signatory sign a document by audio visual link must:
observe the person signing the document in real time. Ensure that the camera is angled so that the witness can see both the face and the signing hand of signatory. Viewing a previous recording of someone signing the document is not enough (and if a party seeks to record the live audio visual meeting for recording-keeping purposes, consent from all parties being recorded must be obtained).
attest or confirm the signature was witnessed by signing a counterpart identical copy of the Document, or a scanned copy of the Document that the signatory has signed before the witness via audio visual link and sent to the witness electronically.
be reasonably satisfied that the Document the witness signs is identical to the one the signatory signs. We recommend that this be achieved by both the witness and the signatory performing a complete page-turn of the entire document via audio visual link prior to execution by either party.
endorse the document, or a copy of the document with a statement specifying the method in which document was witnessed in accordance with the Regulation. The following language is suggested as being appropriate under the Regulation:
This document was signed in counterpart and witnessed over audio visual link ([insert Skype, Zoom etc.]) in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.
Further, witnesses should always ensure that they assess the signatory’s capacity to sign the document in question and verify the signatory’s identity.
The recent Omnibus Acts legislated in Victoria and Queensland also enable similar regulations to be made with respect to electronic signature. At the time of writing, it is unclear when such regulations will be passed in Victoria and Queensland.
At the Commonwealth level, the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) gave regulation making power to Ministers with respect to the following:
(a) the giving of information in writing;
(b) the signature of a person;
(c) the production of a document by a person;
(d) the recording of information;
(e) the retention of documents or information;
(f) the witnessing of signatures;
(g) the certification of matters by witnesses;
(h) the verification of the identity of witnesses;
(i) the attestation of documents.
As at the time of writing, no Regulations have been passed at the Commonwealth Level, such as any amendments to the execution requirements under the Corporations Act 2001 (Cth).
If you have any questions about ensuring that your legal documents are witnessed and executed correctly, please contact Blueprint Law via our website or give us a call on +61 (2) 9300 3100.