What has happened?
The NSW Government has on 22 April 2020 made the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.
These are the regulations referred to in last month’s COVID-19 Legislation Amendment (Emergency Measures) Act 2020. Unfortunately, the regulations expire after 6 months (or earlier if decided by parliament) so it will be all our jobs to keep pressure on Government to ensure we don’t go backwards.
The changes have been made to directly reduce physical contact in line with the government’s social distancing measures to combat the COVID-19 pandemic but should have been brought in years ago when Facetime and Skype first enabled us to view and witness someone remotely. Imagine how many tonnes of greenhouse gases (and wasted time) over the last 10 years have gone into satisfying this pointless restriction?
What are the changes?
The law requires certain documents to be witnessed and certain declarations to be made face to face with an authorised person. Whilst this has not changed, the ways in which these documents can be witnessed have now been expanded to include witnessing by audio visual link (e.g. videoconferencing apps like Webex, Skype or FaceTime).
Documents that can now be witnessed this way include:
- a will;
- a power of attorney or an enduring power of attorney;
- a deed or agreement (including for example guarantees);
- an enduring guardianship appointment;
- an affidavit, including an annexure or exhibit to the affidavit;
- a statutory declaration.
The categories authorised persons to witness documents has also been expanded in line with commonwealth legislation.
How do you sign and witness a document by video conferencing?
Here are some of the rules in place for this method of witnessing to be valid:
- The witness must observe the signatory sign the document in real time.
- The witness must be reasonably satisfied that the document they are witnessing is the same document (or a copy of the document) the signatory signed.
- The witness must sign the document (or a copy of the document) to confirm the witnessing. This can be done in practice by the witness signing a counterpart of the document soon after the witnessing, or by countersigning a copy of the signed document that the signatory has sent to the witness electronically (e.g. by email or uploading to Rundl).
- When signing the document the witness must also add a statement to the document specifying the method used to witness the signature and that the document was witnessed in accordance with these regulations.
- The following is an example of an acceptable witness statement: “The 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.”
Lawlab’s personal document service can now match our national digital conveyancing solution
Lawlab was a pioneer of digital contracts and the first to develop a national suite of digital contracts for the sale of land as part of our digital conveyancing service on our award winning Rundl platform. We have invested a substantial amount of time and effort in the last few years convincing banks, conveyancers and state revenue authorities to accept digital contracts and electronic signatures and this has transformed the real estate industry.
Our videoconferencing processes are well developed as we have for several years been using video conferencing tools like Webex and FaceTime in combination with other reasonable steps to verify a client’s identity where a client has been unable to comply with the VOI Standard.
These changes in NSW now mean we can offer personal document services such as wills, general and enduring powers of attorney and enduring guardianship in Rundl as well. The lawlab national team of lawyers are all remote work enabled and lawlab uses the full suite of digital tools such as, Rundl, electronic contracts, DocuSign, remote Verification of Identity, and PEXA electronic settlements to ensure that your property transaction, new will or other legal matter will be completed successfully regardless of where you are. We are only as far away as your preferred digital device.
Updates on other States
The COVID-19 Omnibus (Emergency Measures) Bill 2020 has been introduced to Parliament and if legislated then it will give Ministers the power to make regulations in relation to requirements for witnessing, executing or signing legal documents such as affidavits, statutory declarations, deeds, powers of attorney, contracts or agreements, undertakings and wills.
The Department of Natural Resources, Mines and Energy now allows paper land title documents to be witnessed by audio visual link but only when the signer is in isolation or quarantine and if special rules are followed. The Supreme Court has issued Practice Direction 10 of 2020 allowing wills to be witnessed by audio visual link in certain circumstances from 1 March 2020 to 30 September 2020. The COVID-19 Emergency Response Act 2020 has been passed allowing Ministers to make regulations which suspend or prescribe modified requirements for documents, including the signing and witnessing of documents and verification of identity.