We recently wrote an article about the changes to legislation which enabled an amendment to be made to the regulations imposed upon witnessing documents. The good news is that changes to the regulations were enacted on 22 April 2020, through the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.
This effect of this amendment is that it allows for certain documents to be witnessed via audio visual link where previously the person signing the document and their witness had to physically be present. This overcomes some of the challenges of social distancing measures.
Which documents are able to be witnessed by audio visual link?
The amendment applies to a range of documents, with the regulation further defining the term ‘document’ to include;
- A will;
- A power of attorney;
- A deed or agreement;
- An enduring guardianship appointment;
- An affidavit, including annexures and exhibits; and
- A statutory declaration
The process
A person, a Solicitor or Justice of the Peace unless otherwise stated, who is witnessing a person sign a document via audio visual link must follow these steps;
- Watch the person signing the document in real time
- The witness must see the signing as it is happening, it is not sufficient to observe a recording of the signing.
- Confirm that the signature was witnessed
- The amendment provides that this can be done either by signing the original copy, signing a counterpart, which is an identical copy of the document, or by having the signed document scanned and sent to the witness for countersigning.
- Endorse the document
- If the document has been witnessed via audio visual link, it must be endorsed with a statement which specifies the method used to witness the signature of the signatory and that the document was witnessed in accordance with the Regulation.
- The amendment provides the following example: “The document was signed in counterpart and witness over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.”
Considerations
The main consideration whilst witnessing a document electronically is that the witness is reasonably satisfied that the document being observed to be signed and the document the witness is signing are the same document. It is also important to ensure that the act of signing is visible during the audio visual link and that it is the signature being applied to the document which is seen, rather than the signatory themselves.
The normal requirements to identify the person making the declaration or affidavit still apply.
We have been waiting for this change and have successfully used it in respect of affidavits for NCAT matters by witnessing signatures via Zoom.
Article authors: ZS and AB.