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15 Oct 2020

WA allows witnessing of affidavits and statutory declarations remotely during the COVID-19 pandemic

By Brett Cohen, Armin Fazely and Georgia Denny

The Western Australian Government has provided flexibility to the requirements for witnessing affidavits and statutory declarations for the duration of the COVID-19 pandemic.

The Western Australian Government has enacted the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) to, amongst other things, facilitate aspects of economic recovery and business continuity in repose to the COVID-19 pandemic.  

A key element of this Act is that it allows for certain documents to be witnessed without the physical presence of a qualified witness on a temporary basis during the COVID-19 pandemic. These amendments are comparable to legislation already enacted by the State Governments in New South Wales, Victoria and Queensland, as well as the Commonwealth Government in response to the COVID-19 pandemic.

As with the laws in those jurisdictions, WA's e-signing laws do require certain steps to be taken to ensure the signature is valid.

Witnessing affidavits and statutory declarations

Under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (OASD Act) an affidavit for any purpose in Western Australia must be sworn or affirmed in the presence of an authorised witness, and similarly a statutory declaration for any purpose in Western Australia must be made in the presence of an authorised witness.

While in operation, the new legislation amends the OASD Act to allow a person to witness affidavits and statutory declarations via audio visual communication where the person signing and the witness are able to see and hear each other, and the witness observes the person signing the relevant document (Part 2, Division 4 of the Act).  This will mean that affidavits and statutory declarations witnessed under the OASD Act can now be witnessed via any technology that enables continuous and simultaneous audio and visual communication such as Facetime, Skype, BlueJeans or Zoom.

Witnessing via audiovisual communication will only be valid where the witness has:

  • first, satisfied themselves that the document they are about to sign is the document signed or otherwise dealt with by the person signing or a counterpart or copy of that document;
  • secondly, signed the document or the counterpart or copy as required under the relevant enactment.Of course this must happen during the audiovisual communication so that the witness, can see, hear and observe the signing of the relevant document; and
  • thirdly, endorsed the document or a copy with a statement that it was dealt with in accordance with section 23 of the Act, for example "This document was witnessed by audiovisual communication in accordance with the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA)".

If documents are witnessed by audio visual link, it is critical that the witness obtains and keeps clear and unambiguous records of the witnessing process via audio visual link.

These new laws are temporary in nature and will not apply past 31 December 2021, unless postponed (although not to a day that is after 30 June 2025).  Documents validly executed in accordance with the new legislation will remain valid when it is revoked.

Qualified witnesses

Under the OASD Act, there are currently 48 occupations and professions of persons who qualified as able to witness statutory declarations, including lawyers, State and Commonwealth public servants, police officers, nurses, doctors and teachers.  The OASD Act also currently authorises any person who is a qualified witness under the Statutory Declarations Act 1959 (Cth).

Affidavits, on the other hand, can only be witnessed under the OASD Act by a Justice of the Peace, a legal practitioner who has held a practicing certificate for at least 2 years, public notary, registrar, clerk of a court or any mining registrar appointed under the Mining Act 1978 (WA).  This raises obvious difficulties in a pandemic.  The Act aims to ameliorate this by expanding the classes of persons who may witness an affidavit in Western Australia by permitting regulations to be made to prescribe additional persons to witness affidavits that are made while a "COVID emergency declaration" exists.

The amendment to the OASD Act also ceases to have effect at the end of 31 December 2021 (but this date may also be postponed).

E-signing or physical signing – the choice is yours

These amendments will provide much needed flexibility required to respond to the COVID-19 pandemic.  Premier Mark McGowan has labelled this legislation as "critical to support our State's economic recovery" and provided that "inflexible requirements will simply hinder crucial decision-making processes that have an adverse impact on the WA community."

The Minister for Transport said in her second reading speech that it would "help to maintain Western Australia as open for business and mitigate damage to the economy that flows from the government not being able to function effectively due to pandemic restrictions". 

Of course, it is important to remember that affidavits and statutory declarations can still be witnessed in the traditional way, in the physical presence of the signatory, where it is appropriate to do so.  However, the Act offers an alternative where traditional methods are not practicable.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.