NSW now allows signatures to be witnessed via audio-visual link

NSW has become the first Australian jurisdiction to pass new laws and regulations to facilitate the witnessing of signatures via audio visual link during the COVID-19 pandemic.

The new reforms pave the way for businesses and individuals to sign and exchange contracts while the NSW Government's social distancing and isolation requirements remain in place.

Key points

• On 25 March 2020, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) amended the NSW Electronic Transactions Act to permit regulations to be made to facilitate the provision of altered arrangements for the signing, witnessing and attesting of documents under an Act.
• Today, the NSW Government made the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Emergency Regulations) allowing signatures on documents, including wills, powers of attorney (including enduring powers of attorney), deeds, affidavits and statutory declarations to be witnessed via audio visual link during the COVID-19 pandemic.
• The Emergency Regulations will have a maximum 6 month duration and will be limited to having effect in New South Wales.

Background

Witnessing of an agreement signed by an individual is prudent but not essential unless it is specifically required under law.  However, witnessing (or some form of authentication) is recommended for evidentiary purposes. On the other hand, certain documents such as deeds, affidavits and statutory declarations are required by law to be witnessed.  In NSW, a person who takes and receives a statutory declaration or affidavit must be an "authorised witness" (usually a Justice of the Peace or a lawyer).

There are serious doubts as to whether video technology satisfies witnessing requirements. This has made the signing and witnessing of documents during the COVID-19 pandemic difficult.

What are the changes?

Below is a summary of the key changes set out in the Emergency Regulations that now apply in New South Wales. 

What's next?

Similar legislative reform is expected to be passed in other jurisdictions to deal with remote execution and witnessing of documents during the COVID-19 pandemic.  For instance, Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No 2) Act (Cth) gives responsible ministers the power by legislative instrument to make a determination:

• varying
• providing for the non-applicability of; or
• substituting a new provision for,

provisions of an act or legislative instrument requiring or permitting matters such as signatures, witnessing of signatures, verification of the identity of witnesses and the attestation of documents.  A determination is limited to being in response to circumstances relating to COVID 19.  It can have retrospective effect but will have no operation after 31 December this year.

Written by Steven Klimt and Paul Cullen