On 22 April 2020 the NSW State Government enacted new regulations to allow for video conferencing technology like Skype, WhatsApp, FaceTime and Zoom to be used in the witnessing of important legal documents such as wills, power of attorney and statutory declarations.
Welcome to witnessing by video conferencing. How does this work?
Attorney General Mark Speakman said the new temporary regulation, made under section 17 and 18 of the Electronic Transactions Act 2000, will help reduce face-to-face contact during the COVID-19 pandemic.
"Thousands of legal documents are executed every day in the presence of one or more witnesses, but COVID-19 restrictions have made it difficult for many people to do so in person," Mr Speakman said.
"Our first priority is always the safety and wellbeing of NSW residents, which is why we are changing the way these documents can be witnessed while the pandemic endures."
The Electronic Transactions Regulation 2017 now provides for the arrangements for, and a signature of a document required to be witnessed, to be witnessed by an "audio visual link" – defined as technology that enables continuous and contemporaneous audio and visual communications between persons at different places, including video conferencing.
The documents which can be witnessed by audio visual link includes:
- A will;
- A power of attorney or an enduring power of attorney;
- A deed of agreement;
- An enduring guardianship appointment;
- An affidavit, including an annexure or exhibit to the affidavit; and
- A statutory declaration.
Mr Speakman continued, "Under the new regulation, a witness must see a person signing the document in real time to confirm the signature is legitimate, but now they can do so using video conferencing technology."
Essentially, the witness will sign the document, or a copy of the document, to confirm they witnessed the signature being affixed. This could be done on a hard copy that is scanned and sent to the witness, or on an identical counterpart of the document the signatory signs.
Appropriate arrangements that need to be made in relation to witnessing signatures to a document in accordance with the legislation, can also be done by audio visual link such as:
- certification of matters required by an Act or another law;
- confirming or verifying the identity of the signatory;
- attestation of a signature;
- swearing or affirming the contents of an affidavit; and
- seeing the face of the signatory.
Any requirement for the presence of a witness, signatory other person is taken to be satisfied if they are present by audio visual link.
Traditional methods of signing and witnessing these documents remain valid while the regulation is in force.
Who can witness the documents?
To facilitate the witnessing of NSW statutory declarations during COVID-19, the categories of people who are authorised to witness documents has been expanded in line with the federal legislation. There are now over 40 such persons before whom a statutory declaration can be made as follows as outlined in the Statutory Declaration Regulations 2018:
- (a) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described);
- (b) a person who, under a law of the Commonwealth, a State or Territory, is currently licensed or registered to practise in Australia in an occupation listed in Part 1 of Schedule;
- (c) a person who is listed in Part2 of Schedule2.
How long will it be in force for?
The legislation provides the measures will be in force for 6 months, with the ability to extend it up to 12 months if prescribed by the regulations.
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