COVID 19 & Witnessing of Documents
Updated: Feb 3
The rapid emergence of the COVID-19 pandemic changed many aspects of contemporary life and the commercial sector was no exception. Observance of social distancing measures meant that physically signing and witnessing legal documents was in many cases no longer viable, nevertheless, given the necessity for commercial transactions to continue taking place, arrangements had to be made to allow them to continue despite the pandemic.
The Legislative Response
In April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) was enacted under the Electronic Transactions Act 2000 (NSW), inserting a number of new clauses in the Electronic Transactions Regulation 2017 (NSW) as Schedule 1. The new legislation sought to provide an alternative to the in-person signing and witnessing of prescribed documents by means of audiovisual link during the COVID-19 pandemic.
However, given the uncertainty created by linking the expiry of the new legislation to the indeterminate length of the pandemic, Schedule 1 of the Electronic Transactions Regulation 2017 was repealed and its contents were transferred to Part 2B of the Electronic Transactions Act 2000, allowing them to operate generally rather than specifically in relation to the pandemic.
At the time of writing, Part 2B is to operate as a remote witnessing pilot scheme ending 31 December 2021.
What Kinds of Documents are Covered by the Legislation?
The documents permitted to be signed and witnessed under the pilot scheme include:
powers of attorney or an enduring powers of attorney;
deeds or agreements;
enduring guardianship appointments;
affidavits, including annexures or exhibits to an affidavit; and
What are the Requirements?
Pursuant to section 14G(2) of the Electronic Transactions Act 2000, a person witnessing the signing of a document by audiovisual link must:
observe the signing of the document in real-time; and
attest that the signature was witnessed by signing the document or a copy themselves; and
be reasonably satisfied the document the witness signs is the same document, or a copy of the document, signed by the signatory; and
endorse the document, or copy, with a statement specifying:
the method they used to witness the signature; and
that the document was witnessed in accordance with Part 2B of the Electronic Transactions Act.
Should I Choose to Have my Will Witnessed by Audiovisual Link?
Whilst documents witnessed by audiovisual link are no less valid than those witnessed physically, there are a number of practical issues so where possible physical witnessing should be preferred.
Will the Documents Need to be Witnessed Again After 31 December 2021?
No. Documents witnessed and attested under Part 2B of the Electronic Transactions Act will remain valid after the provisions themselves cease to be in force.