As NSW embraces more and more freedoms and looks to the future following the COVID-19 pandemic, the NSW Government has just announced that one useful response to the pandemic is here to stay.
In response to the lockdowns imposed over the last 18 months, the NSW Government implemented a remote witnessing scheme, allowing for the certain documents including affidavits, wills, powers of attorney and appointments of an enduring guardian required to be signed in the presence of a witness or authorised witness to be signed and witnessed remotely via audio visual link.
Following the success of the previous measures, the NSW Government has proposed the Electronic Transactions Amendment (Remote Witnessing) Bill 2021.
The objectives outlined in the proposed Bill include:
To make permanent certain provisions that were introduced as a pilot scheme to enable the remote witnessing of documents
Attorney General Mark Speakman notes that this will benefit people living in rural, regional and remote areas. It will also improve access to justice for vulnerable members of the community including older people, people suffering from illness or people with a disability.
To identify the document that is the original document when a document is witnessed remotely,
The Bill outlines that a document shall be considered to be an original document where it:
(a) contains every page or part of the document, and
(b) contains each signature or mark of the signatory and witnesses wherever required in the document, and
(c) contains the remote witnessing endorsement required by the Electronic Transactions Act 2000, and
(d) if a signature was applied to the same page or part by persons in different locations, contains duplicates of the page or part so that every signature is included, and
(e) for a signature written physically on a page or part—contains the actual signature
To identify the place of execution of the document and to make clear it is not necessary for the signatory or witness to physically be in New South Wales to witness a document remotely
The Bill provides that where the signatory signs in NSW, it is this place that the document shall be deemed to have been witnessed.
It also allows for a document to be witnessed pursuant to the NSW law and subject to the laws of NSW, even if the signatory, the witness, or both are outside of the jurisdiction of NSW.
In addition to making the remote witnessing scheme permanent, the Bill also seeks to allow for an extension of the current temporary powers to allow for Statutory Declarations to be declared in the presence of a wider class of persons than those currently authorised by the NSW Oaths Act 1900, to instead be in line with the persons authorised under Commonwealth Statutory Declarations Act 1959.
This expansion of the classes of authorised persons is still only temporary, but is now extended until 1 January 2023.
If you’ve been putting off discussing your legal documents due to lockdown restrictions, or require documents to be signed in the presence of a witness by persons currently living outside of NSW, contact Baker Love Lawyers.