New South Wales is the first state in Australia to enable the electronic witnessing of documents in response to the COVID-19 crisis.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) was published on 22 April 2020 and will be in force up to six months from the date of publication.
The Regulation was made under 17 of the Electronic Transactions Act 2000 (NSW), the provision itself having recently been introduced by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
The Regulation includes provisions that allow a person to witness a document, including a will, a power of attorney, a deed or agreement, an affidavit and a statutory declaration, by “audio visual link”, easing the unique circumstances brought about by the social distancing restrictions imposed on NSW in response to the coronavirus pandemic.
The Regulation defines audio visual link as “technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.” This includes video conferencing using popular software such as Zoom, Microsoft Teams and Skype.
Our friends at Bannermans Lawyers have published information on this in further detail:
What technology or service can I use?
Technology, referred to as “audio visual link”, which can be used must enable “continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing” (emphasis added) (Regulation, Sch 1, cl 1).
Although not limited to any one service, this includes popular applications like Skype, WhatsApp, FaceTime and Zoom and would extend to any service which allows both real time audio and visual communication.
What documents can be witnessed in this way?
The documents which can be witnessed via use of such technology, as defined in the Regulation, are: wills, general and enduring powers of attorney, or an enduring power of attorney, deeds or other agreements, enduring guardianship appointments, affidavits (including an annexure or exhibit to the affidavits) and statutory declarations (Regulation, Sch 1, cl 1).
What is the witnessing process?
The process for witnessing the signing of a document by “audio visual link” is:
- observe the person, being the signatory, sign the document in real time.
- confirm that the signature was witnessed by signing that document or a copy of that document.
- 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.
By way of example, this endorsement could read: “I witnessed the signing of this document in real time by way of WhatsApp video call with the signatory in accordance with the Electronic Transactions Regulation 2017 (NSW)”.
At all times, the individual witnessing the document must be reasonably satisfied that the document the witness signs is the same document, or a copy of the document signed by the signatory ((Regulation, Sch 1, cl 2(2)(c)).
What if I need something else witnessed?
The amendments to the Regulation are unclear as to whether they apply to those documents that fall outside of the definition of “documents”.
- if the signature of a document is required under an Act or another law to be witnessed, the signature may be witnessed by audio visual link, and
- arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.” (emphasis added)
Unlike subclause 1(b), subclause 1(a) is straightforward in that allows signatures on the defined documents to be witnessed via audio visual link.
Clause 2(4) of Schedule 1 of the Regulation reads: “Without limiting subclause (1)(b)—
- arrangements in relation to witnessing signatures by audio visual link include the following—
- certification of matters required by an Act or another law,
- confirming or verifying the identity of the signatory to a document,
- attestation of a signature,
- swearing or affirming the contents of an affidavit,
- seeing the face of the signatory, and
- a requirement in an Act or another law for the presence of a witness, signatory or other person is taken to be satisfied if the witness, signatory or other person is present by audio visual link.”
Accordingly, it appears that pursuant to clauses 2(1)(b) and 2(4), the Regulation extends to allow:
- any form of certification that requires a signature to be witnessed, to have the signature witnessed by audio visual link. Presumably that certificate, or a copy of that certificate, will need to be signed by the witness;
- confirmation or verification of the identity of a signatory by audio visual link. Presumably this extends to sighting ID documents (e.g. driver licence, passport) by audio visual link but it is unclear whether this allows a witness to certify copies of the ID documents sighted in this manner; and
- attestation of a signature via audio visual link but, pursuant to Clause 2(1)(b) of Schedule 1 of the Regulation, any attestation is limited to the documents as defined in Schedule 1 of the Regulation.
What if an Owners Corporation needs to affix it seal on a document?
Pursuant to section 273 of the Strata Schemes Management Act 2015 (NSW), the seal of an Owners Corporation must be affixed in the presence of two owners or the strata managing agent of the Owners Corporation, based on the size of the Scheme. Unfortunately, the amendments to the Regulation do not deal with the affixing of the seal and, in all likelihood, this will need to continue to take place in person.
Nonetheless, there are various circumstances where the affixing of the seal is not required as a matter of law and, in these cases, the Owners Corporation or Strata Committee may resolve to appoint a particular person, such as the Secretary, to execute certain documents on its behalf without use of the seal or to provide the strata managing agent with the appropriate authority to execute such documents on the Owners Corporation’s behalf without use of the seal. We would encourage seeking some advice prior to using these alternative measures.
One of the key set of documents requiring a seal be affixed are forms and plans lodged with Land Registry Services and, in those circumstances, unfortunately, there is no work-around.
What if I need witnessing or attestation of an overseas document witnessed?
Unfortunately, neither the Australian Department of Foreign Affairs and Trade nor the Society of Notaries of New South Wales have issued guidance on what documents, if any, will be accepted by them as a result of the changes to the Regulation and we have written to them requesting clarification.
Accordingly, at this stage, all witnessing, certification and attestation of documents by use of audio visual link should be limited to documents to be used within Australia only.
At the time of writing, New South Wales is the only jurisdiction to make provisions of this nature, however, similar provisions are being considered in other jurisdictions. The Law Institute of Victoria expects that a similar bill will be passed in Victoria soon, and the Tasmanian Government states that arrangements are being put in place to allow for electronic witnessing.
When purporting to witness a signature under this Regulation, it will be necessary to ascertain whether the relevant governing law of the document is New South Wales. This will be the case even when, or if, other jurisdictions pass similar legislation as the requirements of each state may differ. One should exercise caution that local requirements of electronic witnessing (if any) are complied with.