The social isolation and physical meeting restrictions imposed by the federal, state and territory governments in response to the COVID-19 pandemic has made it increasingly difficult for authorised witnesses (who are mostly lawyers) to witness the execution of legal documents, due to the inability to conduct face-to-face meetings between lawyers and their clients.

To overcome this barrier, the NSW Government has introduced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (the Regulations) to allow for video conferencing technology to complement existing measures.

Key changes

The Regulations permit documents to be witnessed via ‘audio visual link’, which is defined to include any technology that enables continuous and contemporaneous audio and visual communication between persons.[1] This would include common video conferencing platforms such as Microsoft Teams, Zoom, FaceTime and WhatsApp, among others.

Process

The Regulations state that a person witnessing the execution of a document must:[2]

  • Observe the signatory sign the document in real time
  • Attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document
  • Be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory
  • Endorse the document, or the copy of the document, with a statement:
    • Specifying the method used to witness the signature of the signatory, and
    • That the document was witnessed in accordance with the Regulation.

A witness may confirm a signature was witnessed by:

  • Signing a counterpart of the document after witnessing the signing of the document, or
  • If the signatory scans and sends a copy of the signed document electronically, countersigning the document after witnessing the signing of the document.

Types of documents eligible

The Regulations apply to witnessing the execution of:[3]

  • Wills
  • Powers of attorney or enduring powers of attorney
  • A deed or agreement
  • Affidavits (including annexures or exhibits to affidavits), and
  • Statutory declarations.

Extended categories of witnesses

Typically, Solicitors and Justices of the Peace can act as witnesses to a statutory declaration. The Regulations extend the categories of witnesses who can witness the execution of a statutory declaration under Schedule 2 to the Statutory Declarations Regulations 2018 (Cth) to include (but not be limited to):[4]

  • Financial advisers
  • Psychologists
  • Veterinary surgeons
  • Accountants (members of Chartered Accountants, CPA or the Institute of Public Accountants)
  • Police officers, and
  • Teachers employed on a permanent basis.

Final notes

The Regulations will remain in force for six months from 22 April 2020, with potential for Parliament to extend the Regulations to a maximum of 12 months.

Existing methods of signing and witnessing remain in place while the amended Regulations are in force. They do not yet allow for electronic execution of a document, and the reforms only extend to witnessing documents. Attorney General Mark Speakman said the change will ensure important legal transactions continue to be signed during the pandemic, noting ‘The government will continue to consult with stakeholders about options for allowing certain documents to be signed and executed electronically’.[5]

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.

[1] Regulation 1, Electronic Transactions Regulation 2017 (NSW)

[2] Regulation 2, Electronic Transactions Regulation 2017 (NSW)

[3] Regulation 1, Electronic Transactions Regulation 2017 (NSW)

[4] Schedule 2, Statutory Declarations Regulations 2018 (Cth)

[5] See https://www.nsw.gov.au/news/covid-19-video-tech-for-witnessing-legal-documents