In the COVID-19 environment, the ability to witness documents remotely has become a necessity, rather than a convenience. The New South Wales Parliament has responded to this by introducing new provisions for witnessing documents.

The provisions implement temporary measures to accommodate remote witnessing of documents through the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW), which amend the Electronic Transactions Regulation 2017 (NSW) (the Regulations). From 22 April 2020, the amended Regulations allow for witnessing of documents via audio visual link, during the COVID-19 pandemic.

Using technology to facilitate document execution is not a new concept. In 2016 and 2017, Maddocks published articles on how electronic signatures could be used for contracts and their limitations under the existing legislation. In the COVID-19 environment, the ‘old-fashioned’ method of executing documents face-to-face has had to be actively reconsidered to enable various sectors to continue with business as usual.

How this works

A witness must still be able to see the signatory through use of audio visual link. This requires simultaneous audio and visual communication technology (such as Skype, Zoom or FaceTime).

Documents to which the Regulations apply include:

• wills;
• powers of attorney or enduring powers of attorney;
• deeds or agreements;
• enduring guardianship appointments;
• affidavits, including an annexure or exhibit to the affidavit; and
• statutory declarations.

The Regulations do not limit the ways in which witnessing a document can occur via audio visual link. The signatory and witness do not have to be in NSW during the audio visual link, however the Regulations only apply to documents governed by NSW law.

Under the Regulations, the witness must:

• observe the signatory sign the document in real time;
• sign the document or a copy of the document as soon as practicable after witnessing;
• be reasonably satisfied that it is the same document (such as by signing a scanned copy); and
• endorse the document with a statement specifying the method used to witness the document and that the document was witnessed in accordance with the Regulations.

For example, a document could be witnessed in the following way:

1. the signatory signs the document in front of the witness via audio visual link (so that the witness can see them actually sign it); and
2. the witness then countersigns either:
   1. a scanned copy of the signed document; or
   2. a counterpart of the document,

as soon as practicable after the witnessing has occurred.

Audio visual link can also be used to make an oath, declaration or affidavit before an Australian legal practitioner or to make a statutory declaration before an authorised witness.

Currently, these provisions only exist in NSW and do not affect execution under other jurisdictions (for example, specific requirements for witnessing documents under the Corporations Act 2001 (Cth)).

The Regulations will last for 6 months from when they commenced, unless the NSW Parliament decides on an earlier sunset date.

The COVID-19 outbreak has created uncertainty for private and public sector organisations. We know our clients might be feeling overwhelmed with the range of issues they need to consider. Our legal teams have prepared a range of practical guides that will answer questions you may have.