By the Electronic  Transactions Amendment (COVID-19) Witnessing of Documents Regulation 2020 the Electronic Transaction Regulations 2017 (ETR) have effectively been replaced to introduce provisions allowing and setting of standards for signing and witnessing of a range of documents in an era of social distancing.

Schedule 1 to ETR details the new provisions in response to the COVID-19 pandemic.

Part 1 deals with Witnessing and attestation. It adopts a definition of “audio visual link” to mean “technology that enables continuous and contemporaneous audio and visual communications between persons at different places, including video conferencing.”

It defines “document” fairly widely to “include the following:-

 

  1. a Will;
  2. a power of attorney or an enduring power of attorney,
  3. a deed or agreement,
  4. an enduring guardianship appointment,
  5. an affidavit, including an annexure or exhibit to the affidavit,
  6. a statutory declaration”

It then goes on to facilitate Witnessing and attestation of documents by audio visual link.

Clause 2 (1) overrides other laws to provide

  1. “if the signature is required under an act or other law to be witnessed, the signature may be witnessed by audio visual link, and
  2. arrangements In relation to witnessing signatures and the attestation of documents may be performed by audio visual link”

(2) requires the witness to the signing by audio visual link to: –

  1. “observe the person signing the document (the signatory) sign the document in real time, and
  2. attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and
  3. be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
  4. endorse the document, or the copy of the document, with a statement –
  5. specifying the method used to witness the signature of the signatory, and
  6. That the document was witnessed in accordance with this Regulation”

Without limiting the ways” a witness may confirm the signature was witnessed, the witness

  1. sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or
  2. if the signatory scans and sends a copy of the signed document electronically – – countersign the document as soon as practicable after witnessing the signing of the document.

Nothing in the ETR impacts on other certification of matters required by an Act or another law, confirming or verifying the identity of a signatory to a document , the attestation of a signature, swearing or affirming the contents of an affidavit, or seeing the face of the signatory,  “and

a requirement in an Act or another law for the presence of a witness, signatory or other person is taken to be satisfied if the witness, signatory or other person is present by a audio visual link.”

The new provision definitely adds a needed flexibility in respect of execution and witnessing of a raft of agreements for both commercial and litigation purposes as well as Wills, Powers of Attorney, Enduring Guardianships and the like.

Time will tell whether the added flexibility goes far enough.

Witnessing and attestation clauses will have to be adapted to the new requirements. It will also be interesting to see what crystallises as to what comprises being reasonably satisfied the document the witness signs is the same document”. This point is especially important.

The above was prepared for and is intended to provide a broad general overview of issues. It is not intended, and must not be relied upon, as definitive legal advice.

If you have any queries, please feel free to contact Greg Ross (info@gregdross.com.au).