By Andrew Jankovic, Solicitor

As everyone knows, finding a lawyer, justice of the peace or pharmacist to urgently witness a signature on a document is hard enough at the best of times, but this is one area which has become considerably more difficult due to the circumstances of COVID-19. This is due to the laws that have been implemented to enforce social distancing and the resultant closure of many physical places of work, including our own, in a shift to remote work. In the current climate, it is not possible for documents to be witnessed in the physical presence of a witness as required by legislation, even with restrictions now being eased in most States and Territories. Typically, witnessing the execution of a document requires a witness to be physically present to observe a signatory sign the document, and then sign the same document themselves as the witness. New temporary changes to NSW law have been made in recognition of the obvious problems with this requirement.

New Regulations

In order to overcome the above difficulties due to COVID-19, the New South Wales Government has enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“Regulations”) under the Electronic Transactions Act 2000 (NSW) to temporarily facilitate the witnessing and attestation of documents by audio-visual link. The Regulations commenced on 23 April 2020 and will be in force for a maximum duration of six-months, unless the NSW government decides to repeal the Regulations at an earlier date or indeed extend them.

In this context ‘audio-visual link’ refers to any technology that enables continuous and contemporaneous audio and visual communication between persons at different places. In practice, this would include platforms where both the audio and visual capabilities of the platform are switched on, as possible on computer software such as Zoom, WebEx, FaceTime, Skype or Microsoft Teams.

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

Witnessing Requirements

The Regulations set out a number of requirements regarding what to do when acting as a witness via audio visual link. The witness must:

1. observe the person signing the document in real time;
2. attest or otherwise confirm the signature was witnessed by signing a scanned copy of the document or a counterpart (exact copy) of the document;
3. be reasonably satisfied that the document the witness signs is the same document, or a copy of the document; and
4. endorse the document by specifying the method used to witness the signature and that the signature was witnessed in accordance with the Regulations. An example of such statement could be:

“I, [name] attest that this document was signed in counterpart and witnessed by me by audio-visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).”

Therefore, the above requirements establish that the witness, after witnessing the signature, may have the option to either sign and endorse a counterpart (exact copy) of the document, or request that the signed document is scanned and sent electronically, which the witness can then countersign. Furthermore, the Regulations do not require a witness to be physically located in NSW at the time of witnessing a signature by audio-visual link, provided that the witness is nevertheless authorised by NSW law to witness such documents.

The Regulations do not alter the effect of any existing laws regarding how a document may be signed, only how a document may be witnessed and attested. Therefore, the laws relating to the use of electronic signatures or the requirements for execution under section 127 of the Corporations Act 2001 (Cth) remain unchanged, for instance.

Despite most States (NSW, VIC, QLD, TAS and SA) passing COVID emergency response legislation granting governments the power to impose COVID related restrictions, NSW is the only State/Territory to date to enact regulations relating to the electronic witnessing of documents. While it is expected that other State jurisdictions may soon follow suit, a spokesperson for the SA Attorney General has recently ruled out the possibility of implementing regulations to permit electronic witnessing during COVID-19.    With more States and Territories now easing restrictions, we will watch with interest how this situation plays out as we progress through 2020.