Update published - 08/12/2021
On 26 April 2021, temporary measures permitting electronic execution and remote witnessing of transactions under the ETA , as well as of statutory declarations, powers of attorney and wills, were made permanent by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (the Act). The Act also made permanent measures that expanded the categories of documents that can be electronically executed and permitted (electronic) split executions under the ETA.
Original article published - 25/10/2020
The operation of special, temporary regulations in Victoria have been extended, continuing to permit witnessing of documents via audio visual link, and the valid use of electronic signatures for the execution of wills, powers of attorney, deeds, mortgages and statutory declarations governed by Victorian law.
Position on electronic execution and remote witnessing pre COVID-19
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.
Traditionally, 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 were addressed by the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 , introduced on 12 May 2020 (the Regulations), which were made pursuant to section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), (the Act) which temporarily empowers the making of regulations to modify the law of Victoria in response to the COVID-19 pandemic.
On 21 October 2020, the operation of section 4 of the Act was extended until 26 April 2021 (it was originally set for repeal on 25 October 2020).
What do the Regulations provide for?
The Regulations provide for electronic execution and remote witnessing of certain documents 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:
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
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 remotely witnessing a signature by audio visual link.
Effect of Regulations on electronic executions and remote witnessing
The Regulations do not affect the laws or requirements of any other jurisdiction (see our article ‘ Electronic & split executions to continue under s 127 Corporations Act ’ for a discussion of executions under section 127, Corporations Act (Cth), and our article ‘ Remote witnessing and attestation to continue in NSW ’ for a discussion of similar changes made in NSW).
The Regulations will be impliedly revoked when section 4 of the Act is repealed on 26 April 2021.
KNOWLEDGE ARTICLES YOU MAY BE INTERESTED IN:
Remote witnessing and attestation to continue in NSW
New regulations facilitate remote witnessing and attestation in NSW in response to COVID-19