Special, temporary regulations have been introduced in Victoria permitting witnessing via audio visual link, and expanding the valid use of electronic signatures to the signing of wills, powers of attorney, deeds, mortgages and statutory declarations governed by Victorian law.
Position to date
In Victoria (similar to other jurisdictions) the Electronic Transactions Act (Vic) (2000) (ETA) codifies the general principle that transactions are not invalid simply because they are conducted through electronic communication. However, certain legislation is exempt from the ETA. Further, the ETA does not affect the operation of any other law (common law or statute) that makes particular provision for how any requirements for writing or execution should be dealt with.
To date, there has been divided opinion in the legal profession as to whether the ETA overturns formal requirements existing at common law in Victoria that deeds be ‘in writing, on paper, parchment or vellum’, therefore calling into question the validity of the electronic execution of deeds in reliance on the ETA.
Separately, for documents that are required to be witnessed (which does not include deeds in Victoria), traditional requirements for witnessing require a witness to physically observe a signatory affix their signature, and affix their signature to the same copy of the document as the signatory.
Both of these limitations have sought to be addressed by the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020, introduced on 12 May 2020 (the Regulations), which were made further to section 4 of the recently passed COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), which temporarily empowers the making of regulations to modify the law of Victoria in response to the COVID-19 pandemic.
What do the Regulations provide for?
The Regulations provide for electronic signatures and remote witnessing by modifying the application of various provisions of the ETA, the Oaths and Affirmations Act 2018 (Vic), the Powers of Attorney Act 2014 (Vic) and the Wills Act 1997 (Vic).
The Regulations make a number of modifications, including:
- expanding the categories of documents that can be executed electronically under the ETA to expressly include deeds and mortgages as ‘transactions’ for the purposes of the ETA, provided the signature meets the conditions for electronic execution under the ETA;
- permitting split executions for the purposes of the execution of transactions under the ETA, by allowing signatures to appear on separate copies of the same document, as long as each person whose signature or consent is required on that document receives every copy on which a signature appears;
- provides for the valid use of ‘audio visual link’ in the:
- witnessing of transactions under the ETA, for example, a witness can now observe a person sign a document or confirm a person’s identity over audio visual link. The witness must sign to confirm what they observed and must include alongside their signature a statement that indicates the observation was done by audio visual link in accordance with the Regulation;
- making of statutory declarations, including the witnessing of and assisting with the making of a statutory declaration under the Oaths and Affirmations Act 2018 (Vic);
- execution and witnessing of execution of powers of attorney (including various categories of documents captured by the Powers of Attorney Act 2014 (Vic), such as enduring powers of attorney and instruments of revocation) and the witnessing of an acceptance by an attorney;
- witnessing of a will and performance of other activities under the Wills Act 1997 (Vic), such as signing at a testator’s direction, the revocation of a will and alteration of a will,
in each case, where the conditions specified in the Regulations are followed, and in the case of specific conditions imposed in respect of statutory declarations, powers of attorney and wills, that these requirements are done on the same day; and
- allows for electronic signatures in respect of statutory declarations, powers of attorney and wills by deeming references to a signature in provisions of the Oaths and Affirmations Act 2018 (Vic), Powers of Attorney Act 2014 (Vic) and Wills Act 1997 (Vic), to include a reference to an electronic signature, so long as a statement is made on the relevant document indicating that the signature was made by electronic means.
The Regulations provide that ‘audio visual link’ means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places (incorporating the definition used in Part IIA the Evidence (Miscellaneous Provisions) Act 1958 (Vic)). This definition would encompass real time video-technology such as Webex, Skype, WhatsApp, FaceTime and Zoom.
The Regulations do not require a witness to be physically located in Victoria when witnessing a signature by audio visual link.
Effect of Regulations
The Regulations follow similar changes made in NSW that also facilitate remote witnessing, while also introducing new categories of documents that can be executed electronically.
The modifications do not limit or change any requirements that are imposed by a law of Victoria (including the Acts amended by the Regulations) that require a person to first be satisfied of certain matters before they write or sign something. For example, any requirement that a witness first be satisfied that they are signing the same document as the signatory. The Regulations do not affect the laws or requirements of any other jurisdiction (see here for a discussion of recent updates to executions under section 127, Corporations Act (Cth)).
Section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) is repealed 6 months after commencement (i.e. 25 October 2020) and any Regulations in force will be impliedly revoked at this time.
Authors: Michael Caplan, Andrew Hii, Jen Bradley and Sophie Bogard
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