Following on from our recent article on signing of documents by companies during COVID-19, set out below is a summary of other updates to witnessing requirements that have been recently introduced in Australia.

Background

Certain types of documents (including wills, mortgages, affidavits, statutory declarations, and deeds) that are required to be signed by an individual (as opposed to a company) are only properly executed by that individual where they sign the document in the presence of a witness.

As a result of COVID-19 related social distancing requirements that are currently in place, some Australian states and territories have passed regulations to allow for the witnessing of certain types of documents by audio-visual link (e.g. via platforms such as Zoom, Skype, Teams etc).

As at the date of this article, the Australian Capital Territory, New South Wales, Queensland and Victoria have all passed legislation/regulations to temporarily allow some documents to be witnessed via audio-visual link.  However, the Northern Territory, Tasmania and Western Australia are yet to follow suit (although the Tasmanian government has indicated that similar arrangements may be put in place soon).  In South Australia, the list of persons who may take statutory declarations has been expanded, however, witnessing of documents must still be done in person.

Australian Capital Territory

In the ACT, the COVID-19 Emergency Response Act 2020 (ACT) (ACT Legislation) allows the signing of certain documents to be witnessed by audio-visual link.  The ACT Legislation commenced on 14 May 2020. 

The ACT Legislation applies to affidavits, wills, health directions and general or enduring powers of attorney.

The witness must:

• observe the signatory signing the document in real time; and
• confirm the signature was witnessed by signing the document or a copy of the document; and
• be reasonably satisfied the document they sign 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:
• of the method used to witness the signature of the signatory; and
• that the document was witnessed in accordance with section 4 of the ACT Legislation.

The ACT Legislation also provides that a witness may:

• sign a counterpart of the document as soon as practicable after witnessing the signing of the document; or
• if the signatory scans and sends the witness a copy of the signed document electronically - countersign the document as soon as practicable after witnessing the signing of the document.

The ACT Legislation will expire 12 months after the COVID-19 state of emergency declarations cease to be in force in the ACT.

New South Wales

In New South Wales, the Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (NSW Witnessing Regulation), allows the signing of certain documents to be witnessed by audio-visual link.  The NSW Witnessing Regulation commenced on 22 April 2020.

The types of documents that can be witnessed in this way are wills, powers of attorney (including enduring powers of attorney), an agreement or deed (that individuals need to sign in the presence of a witness), enduring guardianship appointments, affidavits (including annexures) and statutory declarations.

Under the NSW Witnessing Regulation, a person who witnesses the signing of a document by audio visual link must:

• observe the signing of the document in real time, and then sign the document, or a copy of the document themselves;
• be reasonably satisfied that the document signed by the signatory is the same document, or copy of the document, as the one the witness is signing;
• endorse the document (or copy of the document) with words that specify the method used to witness the signing and that it was witnessed in accordance with the NSW Witnessing Regulation (e.g. a statement that the document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017).

The NSW Witnessing Regulation also allows:

• the witness to sign and endorse a counterpart of the document; or
• the signatory to send an electronic copy of the document signed by the signatory to the witness who can then counter sign that copy of the document,

in each case, as soon as practicable after witnessing the signing of the document.

The NSW Witnessing Regulation also allows other witnessing-related arrangements to be conducted via audio visual link, including confirming or verifying the signatory’s identity, and swearing or affirming the contents of an affidavit.

The NSW Witnessing Regulation is due to expire on 22 October 2020 (or a later date up to 12 months after it commenced if prescribed by regulation).

Queensland

In Queensland, the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld) (QLD Regulation) allows the signing of certain documents to be witnessed by audio-visual link.  The QLD Regulation commenced on 15 May 2020. 

It allows for the signing of wills and enduring documents (e.g. enduring power of attorney) by individual signatories to be witnessed by audio visual link, provided the witness is a “special witness” (or if more than 1 witness is required, then at least 1 witness must be a special witness).

A special witness can be an Australian lawyer, notary public, a justice or commissioner for declarations approved by the chief executive, or a justice or commissioner for declarations provided they are employed by the law firm (or Public Trustee) who prepared the document and they witness the documents during the course of their employment. 

The QLD Regulation also allows for a substitute signatory to sign a will or an enduring document, on behalf of the signatory, at their request provided that the substitute signatory meets the strict the strict requirements set out in the QLD Regulation.

A document may be witnessed by audio-visual link only if:

• where applicable, the witness observes the signatory direct the substitute signatory to sign the document; and
• the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document; and
• the witness observes the signatory or substitute signatory signing the document in real time; and
• the signatory or substitute signatory signs each page of the document; and
• the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.

The special witness who witnesses the signing of a document by audio -visual link must take reasonable steps to identify the signatory’s identity and that the signatory’s name matches the name of the signatory on the relevant document.

The special witness must also provide a certificate stating

• that the document was signed and witnessed during the relevant period (namely, the period starting on the commencement and ending when the COVID-19 emergency period ends); and

• that the document was signed and witnessed in accordance with the QLD Regulation; and
• the steps the witness took to verify the identity of the signatory; and
• if a substitute signatory signed the document -
• the identity of the substitute signatory; and
• a description of the direction given by the signatory to the substitute signatory; and
• if a substitute signatory was directed by the signatory by audio visual link to sign the document - the grounds on which the witness is satisfied that the substitute signatory is permitted to be a substitute signatory for the document; and
• the process followed for signing and witnessing the document; and
• that the special witness is a special witness; and
• whether an audio visual recording was made of the signing or witnessing of the document; and
• any other matters the special witness considers relevant to the signing or witnessing of the document.

The QLD Regulation is due to expire on 31 December 2020.

Victoria

In Victoria, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (VIC Regulation) allows the signing of certain documents to be witnessed by audio-visual link.  The VIC Regulation commenced on 12 May 2020.

The VIC Regulation allows the signing of the following types of documents to be witnessed via audio-visual link:

• affidavits;
• deeds and mortgages;
• statutory declarations;
• power of attorney documents; and
• wills, codicils and other testamentary instruments.

However, the witness must be able to satisfy himself/herself, via the audio-visual link:

• of the identity of the signatory;
• that the signatory has decision making capacity;
• that there is no defect such as undue influence, duress or unconscionable conduct apparent in the transaction; and
• that the signatory is signing freely and voluntarily.

A signatory must write or stamp under their signature a statement indicating that the document was witnessed using an audio-visual link in accordance with the VIC Regulation.

An example of a valid statement is:

“This document was witnessed by audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

There are also additional requirements for each type of document covered by the VIC Legislation. These requirements are summarised by the Victorian government in this link: https://www.justice.vic.gov.au/electronicwitnessing

These provisions will remain in place until the VIC Regulation is revoked.

******

If you have any questions on signing a document, please get in touch with one of the Sierra Legal team.