Further to our earlier article on the subject of electronic signatures, 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 s 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.
What to do when witnessing a signature via an audio visual link
The process requires a person who acts as a witness via audio visual link to:
- observe the signatory of the document that he or she is signing in real time;
- attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document;
- be reasonably satisfied that the document that 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:
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- specifying the method used to witness the signature of the signatory, and
- that the document was witnessed in accordance with the Regulation.
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An example of such a statement could be:
"I, [name] confirm that this document was signed in counterpart and witnessed by me by audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017 (NSW)".
Confirming that the signature was witnessed may involve the signatory scanning and sending the executed document to the witness for the witness to add their signature as soon as practicable, or alternatively, the witness could sign a counterpart copy of the document.
If the witness cannot be reasonably satisfied that the document presented for their signature is the same as the document signed by the signatory, then the witness should not sign the document.
The Regulation does not create new provisions governing the way a document may be signed. Therefore, if, for example the document is a deed (not otherwise covered by the Conveyancing Act 1919 (NSW) or the Real Property Act 1900 (NSW)), it will be necessary to have a wet signature rather than an electronic one.
Another issue to be aware of is that this will not affect the operation of section 127 of the Corporations Act 2001 (Cth). There is some ambiguity as to the permissibility of the split execution of documents by officers of a company where signatures of more than one officer is required, as well as the use of electronic signatures on agreements to which the company is party to. It is possible, however, that the Commonwealth may issue a determination pursuant to Schedule 5 of the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) to modify the requirements around the execution and witnessing of documents for companies.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
