In March 2020, the New South Wales Government enacted the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 to prepare New South Wales for the impacts of COVID-19 in line with health advice, and to take immediate steps to address existing barriers in our laws that were incompatible with social distancing policies. This included amending the Electronic Transactions Act 2000 ('the Act') to create a regulation-making power that would allow for regulations to provide for alternative mechanisms for signing and witnessing documents.
Pursuant to these powers, the New South Wales Attorney-General introduced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 ('the Regulations').
The Regulations allow for documents to be signed by one person (the signatory) in one place, and witnessed by another person (the witness) in another place using facilities such as Microsoft Teams, Zoom or FaceTime - which allow for contemporaneous audio-visual communication.
If you are witnessing documents pursuant to this regime, please note that the following steps must be followed:
- The witness must observe the signatory signing the document in real time;
- The witness must attest or otherwise confirm the signature was witnessed by either:
- Having the signatory scan and send a copy of the signed document electronically and countersigning that document as soon as practicable after witnessing the document; or
- Signing a counterpart of the document as soon as practicable after witnessing the signature of the document, with the two signed counterparts being considered together as the witnessed document.
- The witness must be reasonably satisfied that the document the witness signs is the same document, or a copy of the document signed by the signatory; and
- The witness must endorse the document, or a copy of the document, with a statement to the effect of: "This document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017."
Documents are defined by the Regulation as including the following examples:
- a will;
- a power of attorney or an enduring power of attorney;
- a deed or agreement;
- an enduring guardianship appointment;
- an affidavit, including an annexure or exhibit to the affidavit; and
- a statutory declaration.
At first, the Regulations were set to be in place for 6 months only. However, as the global pandemic continues, so to do social distancing requirements. The Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 repeals the Regulations and inserts the same measures into a new Part 2B of the Act, to continue until the end of 2021.
The NSW Attorney-General has said:
"this extension of remote witnessing arrangements will allow sufficient time for the department to assess the effectiveness of those arrangements and to consult with the legal profession and other stakeholders about whether longer-term reform is required.
The extension in time also responds to the uncertainty presented by the COVID 19 pandemic and the ongoing need to facilitate processes to execute important legal documents while maintaining physical distancing. Remote witnessing arrangements are not mandatory. Witnessing documents in person will continue to be available.
The remote witnessing provisions do not remove existing safeguards associated with witnessing, so the witness must satisfy themselves of all the same things they would have to if they were witnessing a document in person."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.