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Using Technology to Witness Documents During the Pandemic

As of 22 April 2020, video conferencing technology can be used in the witnessing of important legal documents under amendments made to the Electronic Transactions Regulation 2017 (NSW) (Regulation) by the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).

What technology or service can I use?

Technology, referred to as “audio visual link”, which can be used must enable “continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing” (emphasis added) (Regulation, Sch 1, cl 1). Although not limited to any one service, this includes popular applications like Skype, WhatsApp, FaceTime and Zoom and would extend to any service which allows both real time audio and visual communication.

What documents can be witnessed in this way?

The documents which can be witnessed via use of such technology, as defined in the Regulation, are: wills, general and enduring powers of attorney, or an enduring power of attorney, deeds or other agreements, enduring guardianship appointments, affidavits (including an annexure or exhibit to the affidavits) and statutory declarations (Regulation, Sch 1, cl 1).

What is the witnessing process?

The process for witnessing the signing of a document by “audio visual link” is:

  1. observe the person, being the signatory, sign the document in real time;
  2. confirm that the signature was witnessed by signing that document or a copy of that document;
  3. endorse the document, or the copy of the document, with a statement:
    1. specifying the method used to witness the signature of the signatory; and
    2. that the document was witnessed in accordance with the Regulation.

By way of example, this endorsement could read: “I witnessed the signing of this document in real time by way of WhatsApp video call with the signatory in accordance with the Electronic Transactions Regulation 2017 (NSW)”

At all times, the individual witnessing the document must be reasonably satisfied that the document the witness signs is the same document, or a copy of the document signed by the signatory ((Regulation, Sch 1, cl 2(2)(c)).

What if I need something else witnessed?

The amendments to the Regulation are unclear as to whether they apply to those documents that fall outside of the definition of “documents”.

Clause 2(1) of Schedule 1 of the Regulation reads: “For the purposes of section 17(1)(b) and (c) of the Act, despite any other Act or law

(a)  if the signature of a document is required under an Act or another law to be witnessed, the signature may be witnessed by audio visual link, and

(b)  arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.” (emphasis added)

Unlike subclause 1(b), subclause 1(a) is straightforward in that allows signatures on the defined documents to be witnessed via audio visual link.

Clause 2(4) of Schedule 1 of the Regulation reads: “Without limiting subclause (1)(b)—

(a)  arrangements in relation to witnessing signatures by audio visual link include the following—

(i)  certification of matters required by an Act or another law,

(ii)  confirming or verifying the identity of the signatory to a document,

(iii)  attestation of a signature,

(iv)  swearing or affirming the contents of an affidavit,

(v)  seeing the face of the signatory, and

(b)  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 audio visual link.”

Accordingly, it appears that pursuant to clauses 2(1)(b) and 2(4), the Regulation extends to allow:

1) any form of certification that requires a signature to be witnessed, to have the signature witnessed by audio visual link. Presumably that certificate, or a copy of that certificate, will need to be signed by the witness;

2) confirmation or verification of the identity of a signatory by audio visual link. Presumably this extends to sighting ID documents (e.g. driver licence, passport) by audio visual link but it is unclear whether this allows a witness to certify copies of the ID documents sighted in this manner; and

3) attestation of a signature via audio visual link but, pursuant to Clause 2(1)(b) of Schedule 1 of the Regulation, any attestation is limited to the documents as defined in Schedule 1 of the Regulation.

What if I need witnessing or attestation of an overseas document?

Unfortunately, neither the Australian Department of Foreign Affairs and Trade nor the Society of Notaries of New South Wales have issued guidance on what documents, if any, will be accepted by them as a result of the changes to the Regulation and we have written to them requesting clarification.

Further, there is no guarantee that a document on which a signature is witnessed by electronic means will be be accepted in overseas jurisdictions. Accordingly, at this stage, all witnessing, certification and attestation of documents by use of audio visual link should be limited to documents to be used within Australia only.