On 25 March 2020 the commencement of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1 (NSW) hinted that NSW Parliament was working toward measures to amend regulations to implement alternatives to previous face to face witnessing requirements of various Acts in response to the COVID-19 pandemic and current social distancing and isolation practices.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) commenced on 22 April 2020 and contains a schedule of provisions to update the Electronic Transactions Regulation 2017 (NSW) to alter the requirements for witnessing and execution of an array of documents.
The scope of documents includes:-
(a) a will,
(b) a power of attorney or an enduring power of attorney,
(c) a deed or agreement,
(d) an enduring guardianship appointment,
(e) an affidavit, including an annexure or exhibit to the affidavit,
(f) a statutory declaration.
While these documents are all regulated by different legislative Acts, the Regulation takes a fairly broad approach noting that despite any other Act or law, 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.
The Media Release from the Attorney General makes reference to Skype, WhatsApp, FaceTime and Zoom, however the definition of audio visual link extends to any technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.
To comply with the Regulation the witness must satisfy 4 requirements:-
- Observe the person signing the document (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 that 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.
The statement must specify the method used to witness the signature of the signatory, and also confirm that the document was witnessed in accordance with the Regulation.
The example statement provided by the Regulation is:
“that the document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.”
The requirements note that the witness may sign a copy of the document following the witnessing of the signature. Non-exhaustive examples of how this can be achieved include:-
The witness obtained a scanned copy of the document signed by the signatory as witnessed and signing the scanned copy, or signing a counterpart (an identical copy) of the document signed by the signatory.
The Regulation also confirms that audio visual link is able to be used for other arrangements including:-
- 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
The Regulation shall be in place for the period of 6 months following its commencement unless Parliament resolves to end this period earlier.
Before attempting to witness any document pursuant to the Regulations it is strongly recommended that legal advice is obtained in relation to the currency of the Regulations and their requirements.