COVID-19 – Witnessing of documents by video technology in New South Wales

Introduction

On 22 April 2020, NSW became the first state of Australia to introduce temporary measures which allow important legal documents to be witnessed using an “audio visual link” by the Governor passing an amendment to the Electronic Transaction Regulation 2017 (NSW) (“the Regulations”). The Regulations also expand the list of persons before whom a statutory declaration may be signed.

Whilst witnessing by audio visual link may not be appropriate for every client or circumstance, it is certainly a welcomed measure to allow for important legal services to continue despite the current pandemic, whilst still maintaining social distancing and self-isolation protocols to reduce the spread of the virus and continue to “flatten the curve”.

What is the effect of the changes to the Regulations?

The amendments have been put in place to provide an alternative means of witnessing documents due to the COVID-19 (Novel Coronavirus) pandemic and will automatically expire on 26 September 2020 (unless this date is changed by further regulations or the resolution of Parliament).

Whilst traditional methods of signing and witnessing documents remain valid despite the Regulations being in place, these measures help reduce face-to-face contact during this pandemic and at the same time still allows important legal documents to be signed remotely.

“Audio visual link” is defined in the Regulations as any technology that enables continuous and contemporaneous audio and visual communication between persons. This includes using video conferencing platforms such as Microsoft Teams, Zoom, FaceTime, WhatsApp and the like where the client and the witnesses can see each other clearly and in real time.

It is important to note, however, that the amendment to the Regulation (at this stage) does not allow for electronic signing of a document to which it applies (i.e. via a digital signing platform) – it only applies to video witnessing of documents.

Which documents can be witnessed by audio visual link?

The Regulations allow the following documents to be witnessed via audio visual link:

• a Will;
• a Power of Attorney or Enduring Power of Attorney;
• an Appointment of Enduring Guardian;
• a deed or agreement
• an affidavit (including any annexure or exhibit to an affidavit); and
• a statutory declaration.

The Regulations do not alter face-to-face witnessing requirements for Superannuation Binding Death Benefit Nominations or any other documents that are subject to the laws of the Commonwealth, other states of Australia or other jurisdictions.

How is witnessing by audio visual link achieved in practice? 

The Regulation must be carefully followed in order to create a valid document. A person witnessing the signing of a document using an audio visual link must:

• see the person signing the document in real time to confirm the signature is legitimate;
• sign the document, or a copy of the document, as soon as practicable following the signing of the document by the signatory, to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signs which is electronically sent to the witness or on an identical counterpart of the document the signatory signs;
• be reasonably satisfied that the document signed by the witness is the same document, or a copy of the document, signed by the signatory; and
• state on the document the method of witnessing that was used (countersigned or counterpart) and that it was witnessed in accordance with the Regulations.

Expansion of persons before whom a statutory declaration may be made

Traditionally, Justices of the Peace and Solicitors are persons that could act as a witness to a statutory declaration. The Regulations have been amended to allow other persons to witness a statutory declaration (which are in line with witnesses to Commonwealth statutory declarations pursuant to Schedule 2 to the Statutory Declarations Regulations 2018 (Cth)) and which include (but are not limited to):

• financial advisors;
• nurses;
• pharmacists;
• psychologists;
• veterinary surgeons;
• accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
• police officers; and
• teachers employed on a permanent basis.

A full list of eligible witnesses is contained in Schedule 2 to the Statutory Declarations Regulations 2018 (Cth).

Conclusion

Although these new measures are applauded and will be very useful for some clients, they have not yet been “tested” in the Courts and there is no doubt that there will be some teething issues to be mindful of.

Care will need to be taken to ensure that the Regulations are vigilantly complied with and the suitability to proceed with a client in line with these measures will need to be assessed on an individual basis.

In the event that video witnessing is not possible, there may be some other alternatives to consider depending on the circumstances or the document that needs to be signed. These should be discussed with your solicitor.

Nevertheless, if documents are executed using these temporary Regulations, it is highly recommended that they be revisited once social distancing measures have been relaxed or once the pandemic is over with a view to re-signing the documents in the traditional face-to-face manner.