The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) came into effect on 22 April 2020. This regulation aims to address the difficulties with witnessing documents face-to-face during the COVID-19 pandemic.
Witnesses are no longer required to be physically present when witnessing the signing of certain legal documents, instead they can use video conferencing technology such as Skype, Zoom, WhatsApp and FaceTime.
Documents that can now be witnessed by audio visual link include:
- a will;
- a Power of Attorney or an Enduring Power of Attorney;
- a Deed or Agreement;
- an Affidavit (including an annexure or exhibit to the affidavit); and
- a statutory declaration.
This regulation also allows matters incidental to witnessing documents (such as verifying a person’s identity) to occur by audio visual link.
However, it does not extend to superannuation binding death benefit nominations or any other documents that are subject to the laws of the Commonwealth, other states of Australia or other jurisdictions.
In order to create a valid legal document, the person witnessing the signing of a document via audio visual link must:
- watch the person signing the document in real time.
- confirm the signature was witnessed by signing the document, or a copy of the document. This could be done on a hard copy that is scanned and sent to the witness or on an identical counterpart of the document the signatory signs.
- be reasonably satisfied that the document they sign is the same document, or a copy of the document signed by the signatory.
- endorse the document with a statement outlining the method used to witness the signature and that the document was witnessed in accordance with this regulation.
This statement could be included in the signature block of the document, for example:
“this document was signed in counterpart and witnessed over audio visual link (Microsoft Teams) in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.”
These changes will remain in force for 6 months. However, NSW Parliament could extend the regulation for a total of 12 months.
Traditional methods of signing and witnessing these documents will remain valid while the regulation is in force.