NSW has become the first Australian jurisdiction to pass new laws and regulations to facilitate the witnessing of signatures via audio visual link during the COVID-19 pandemic.
The new reforms pave the way for businesses and individuals to sign and exchange contracts while the NSW Government's social distancing and isolation requirements remain in place.
- On 25 March 2020, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) amended the NSW Electronic Transactions Act to permit regulations to be made to facilitate the provision of altered arrangements for the signing, witnessing and attesting of documents under an Act.
- Today, the NSW Government made the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Emergency Regulations) allowing signatures on documents, including wills, powers of attorney (including enduring powers of attorney), deeds, affidavits and statutory declarations to be witnessed via audio visual link during the COVID-19 pandemic.
- The Emergency Regulations will have a maximum 6 month duration and will be limited to having effect in New South Wales.
Witnessing of an agreement signed by an individual is prudent but not essential unless it is specifically required under law. However, witnessing (or some form of authentication) is recommended for evidentiary purposes. On the other hand, certain documents such as deeds, affidavits and statutory declarations are required by law to be witnessed. In NSW, a person who takes and receives a statutory declaration or affidavit must be an "authorised witness" (usually a Justice of the Peace or a lawyer).
There are serious doubts as to whether video technology satisfies witnessing requirements. This has made the signing and witnessing of documents during the COVID-19 pandemic difficult.
What are the changes?
Below is a summary of the key changes set out in the Emergency Regulations that now apply in New South Wales.
Audio visual links now permitted
Witnessing of signatures and the attestation of documents may be performed by audio visual link. For this purpose, an audio visual link is technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video technology.
Witnesses must see the act of signing
A person witnessing the signing of a document by audio visual link (the witness) must:
- observe the person signing the document (the signatory) sign the document in real time;
- 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; and
- 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 Emergency Regulation.
Changes have broad application
The Emergency Regulations will apply to a broad range of arrangements requiring witnessing governed by NSW law such as:
- powers of attorney or enduring powers of attorney;
- affidavits, including an annexure or exhibit to the affidavit;
- statutory declarations;
- certification of matters required by a law;
- confirming or verifying the identity of a signatory; and
- seeing the face of a signatory.
Similar legislative reform is expected to be passed in other jurisdictions to deal with remote execution and witnessing of documents during the COVID-19 pandemic. For instance, Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No 2) Act (Cth) gives responsible ministers the power by legislative instrument to make a determination:
- providing for the non-applicability of; or
- substituting a new provision for,
provisions of an act or legislative instrument requiring or permitting matters such as signatures, witnessing of signatures, verification of the identity of witnesses and the attestation of documents. A determination is limited to being in response to circumstances relating to COVID 19. It can have retrospective effect but will have no operation after 31 December this year.
Written by Steven Klimt and Paul Cullen