02/10/2020

Special measures introduced in April by the New South Wales Attorney General in response to the COVID-19 pandemic, which allow for the remote witnessing of certain documents such as affidavits, deeds and statutory declarations have been extended until the end of 2021, with the possibility of them then becoming permanent. 

Before the introduction of these measures, witnessing required a witness to physically observe a signatory affix their signature, and then affix their signature to the same copy of the document as the signatory. This has clearly been unworkable in light of social distancing and capacity restrictions which have seen more workplaces go remote.  In April, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulations) sought to address these limitations to provide for altered arrangements for witnessing of signatures and the attestation of certain documents governed by NSW law. The Regulations were made under section 17 of the Electronic Transactions Act 2000 (NSW) (ETA), a special power introduced in March by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).

On 28 September 2020, the measures implemented by the Regulations were extended by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW) (the Act). The Act repeals the Regulations and inserts the measures introduced by the Regulations (without substantive change) into a new Part 2B of the ETA, titled ‘Remote witnessing pilot scheme’ (Part 2B Amendments).  

Remote Witnessing and Attestation

As with the Regulations, the Part 2B Amendments:

  • Permit remote witnessing of signatures and attestation of documents by audio visual link (which would include via video-technology that enables a continuous and contemporaneous audio and visual communication between persons at different places, such as Skype, WhatsApp, FaceTime and Zoom) provided certain conditions are met, including that the witness must:
    • observe the signatory sign the document in real time (on a practical note, this will require the act of signing to be seen on-screen (for example, witnessing the hand of the signatory sign the document, whether by wet signature or electronically));
    • confirm they witnessed the signature, either by signing a counterpart of the signed document, or, where the signatory scans and sends a copy of the signed document to the witness electronically, by countersigning that document;
    • include a statement specifying the method used to witness the signatory’s execution and that the document was witnessed in accordance with section 14G of the ETA; and   
    • be reasonably satisfied the document they sign is the same document, or a copy of the document, that they observed the signatory sign.

The Part 2B Amendments do not require a witness to be physically located in NSW when witnessing a signature by audio-video link.  They also do not seek to limit the ways that a witness may confirm the signature was witnessed, provided the conditions are met.  However, the example methods provided for in Part 2B Amendments all refer to the witness signing a copy of the document – the advantage of these methods is that they mitigate the risk of the witness confirming a different document from that which was signed. Whatever method is used to confirm, the witness should do so as soon as practicable after having witnessed the signature. 

Remote Swearing of Oaths and Affidavits

As with the Regulations, the Part 2B Amendments also:

  • Allow an Australian legal practitioner to take or make any oath declaration or affidavit required for the purpose of any court or tribunal; for the registration of any instrument; or for any arbitration.  (Previously, the position in NSW is that these can only be made or taken by a justice of the peace, a notary public, a British Consular Officer or an Australian Consular Officer.)
  • Allow statutory declarations (other than those required for the purposes of any court or tribunal to which the above applies) to be made before a broader range of “authorised witnesses” to include dentists, pharmacists, medical practitioners and veterinary surgeons, among others.  This change temporarily brings the NSW position on “authorised witnesses” in line with the existing Commonwealth position.

Application

The changes to permit witnessing and attesting via audio visual link apply to wills, powers of attorney (or enduring power of attorney), deeds or agreements, enduring guardianship appointments, affidavits and statutory declarations governed by NSW law. 

The Part 2B Amendments address the uncertainly around using cloud-based eSignature tools (such as AdobeSign and DocuSign) to witness documents, when witnessing via audio-visual link.  As, provided the conditions in the Part 2B are met, it is acceptable that the functionality in these tools creates a separate identical copy of the document for the witness to affix their signature.

The Part 2B Amendments do not change what documents may or may not be executed electronically in NSW – only how documents may be witnessed and attested.  The Part 2B Amendments also do not affect the laws or requirements of any other jurisdiction. 

Duration

The amendments facilitated by the introduction of Part 2B to the ETA are only temporary, and will expire at the end of 2021.  Attorney General Mark Speakman indicated that this extension will allow additional time for the effectiveness of the measures to be assessed, with a view to determining whether the amendments should be made permanent.

 

Authors: Andrew Hii, Jen Bradley and Sophie Bogard

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