Queensland, New South Wales and Victoria have introduced temporary measures to provide for the witnessing of documents by ‘audio visual link’ in the unique circumstances brought about by the COVID-19 health emergency.

Each State has introduced its own Regulations and although they all permit the use of audio-visual technology for the witnessing of documents, each State has defined the extent of the temporary measures which apply in its State. For example, the Queensland legislation applies to Wills and enduring documents only, whereas as the NSW legislation includes deeds, agreements, affidavits and statutory declarations.

We set out below the provisions that apply in each of these States.

The term ‘audio-visual link’ is defined in both the NSW and VIC Regulations, but not in the Qld Regulation. However, we consider it would be commonly accepted that the term refers to technology that enables contemporaneous audio and visual communications between persons at different locations. This will include popular software options such as Zoom, Microsoft Teams, FaceTime, Webex and Skype.

QUEENSLAND

The Queensland Parliament passed the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 which allows for Wills and enduring documents (including enduring powers of attorney and advance health directives) to be witnessed via an audio-visual link.

Which documents can be signed remotely?

The Queensland regulation only permits the witnessing of Wills and enduring documents, including enduring powers of attorney and advance health directives.

This temporary measure will apply to documents signed between 15 May 2020 and 31 December 2020.

Remote witnessing requirements

Wills must still be witnessed by two people. However, the regulation allows both witnesses to witness the signing via audio-visual link, in which case at least one witness must be a ‘special witness’.

For enduring documents, the only witness required for an audio-visual link is a special witness.

The following qualify as a special witness:

• a lawyer
• justice of the peace
• commissioner for declarations who is employed by the firm who prepared the document and who normally witnesses documents of that kind
• a notary public
• the Public Trustee or an employee of the Public Trustee (if the document is prepared by the Public Trustee’s office)

When witnessing documents via audio-visual link, the following requirements must be met:

• the special witness verifies the identity of the person signing the document
• the audio-visual link enables the witness to be satisfied that the person is signing the document
• the witness observes the person signing the document in real time
• the person signs each page of the document
• the witness is satisfied that the person is freely and voluntarily signing the document.
• How does the witness sign the document?

As soon as practicable after a document has been witnessed via audio visual link, the witnesses must sign each page of the original document or sign a true copy of the signed document (for example a scanned copy).

The regulations acknowledge that the witnesses may not be able to sign the original document or a copy on the same day the document was witnessed via audio visual link.

The special witness must provide a certificate

The special witness must provide a certificate, stating:

• the date the document was signed and witnessed
• the document was signed and witnessed in accordance with the regulation
• the steps the witness took to verify the identity of the person signing
• the process followed for signing and witnessing the document
• the special witness qualification (lawyer, justice of the peace etc.)
• whether the witnessing via audio-visual link was recorded
• any other matters the special witness considers relevant to the signing or witnessing of the document.

This certificate must be kept with the document that was signed by the witnesses.

NEW SOUTH WALES

The NSW government passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) and will be in force until 22 October 2020.

Which documents can be signed remotely?

The NSW regulation includes provisions that allow a person to witness a document, including a will, a power of attorney, a deed or agreement, an affidavit and a statutory declaration by audio-visual link.

Remote witnessing requirements

When witnessing documents via audio-visual link, the following requirements must be met:

• observe the signatory of the document that he or she is signing in real time;
• attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document;
• be reasonably satisfied that the document that the witness signs is the same document, or a copy of the document signed by the signatory; and
• endorse the document, or the copy of the document, with a statement:
  • specifying the method used to witness the signature of the signatory, and
  • that the document was witnessed in accordance with the Regulation.

Confirming that the signature was witnessed may involve the signatory scanning and sending the executed document to the witness for the witness to add their signature as soon as practicable, or alternatively, the witness could sign a counterpart copy of the document.

VICTORIA

The Victorian government passed the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) which allows remote witnessing and electronic signatures by modifying the application of various provisions of the Electronic Transactions (Victoria) Act 2000 (Vic) (‘ETA’), Oaths and Affirmations Act 2018 (Vic), Powers of Attorney Act 2014 (Vic) and Wills Act 1997 (Vic). The key changes introduced by the Regulations are:

• extending the use of electronic signatures under the ETA, provided that the signature satisfies the conditions for electronic execution under the ETA;
• allowing ‘split electronic execution’, that is, allowing different signatories to sign separate copies of the same document, for transactions under the ETA;
• allowing electronic signing of statutory declarations, powers of attorney and wills;
• allowing the use of an audio-visual link:
• to witness transactions under the ETA;
• for making statutory declarations under the Oaths and Affirmations Act 2018 (Vic) including by the declarant, a person assisting the declarant, and the witness;
• for making and witnessing of various powers of attorney under the Powers of Attorney Act 2014 (Vic); and
• to witness execution of a will under the Wills Act 1997 (Vic).

In each instance, there are specific conditions and processes that are imposed by the Regulations that must be adhered to, including that witnesses are generally required to identify that the document was witnessed by an audio-visual link, pursuant to the Regulations.

Existing obligations on witnesses not modified by any of the Regulations

None of the States Regulations remove existing obligations imposed on witnesses. For example, depending on the document in question, a ‘remote’ witness must still be satisfied with:

• the verification of identity of the signatory;
• the capacity of the signatory to make a decision; and
• that the signatory is not subject to any undue influence, duress or unconscionable conduct.

Company execution of documents

While the above Regulations do not make any changes to the operation of s127 of the Corporations Act 2001 (Cth) regarding companies executing documents, the Federal Government has temporarily modified the Corporations Act 2001 (Cth) (‘Corporations Act’) to facilitate companies to execute documents electronically and to hold virtual meetings.

On 5 May 2020 the Federal Treasurer issued a Determination which changes the way companies can hold meetings and execute documents during the COVID-19 pandemic.

The Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 modified requirements for physical attendance at meetings and amends s127 of the Corporations Act by allowing companies in particular circumstances to execute documents electronically (that is, by applying the relevant officeholders’ electronic signatures to the document).

Please click here to read our earlier news article for more details about these provisions.

 

 

Please note that this article has been prepared by Bell Legal Group, for information purposes only. It is not legal advice nor should it be relied upon as such.

For legal advice about your situation call us on +617 5597 3366 or complete the Contact Us form below.