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COVID-19 | Wit­ness­ing the exe­cu­tion of doc­u­ments dur­ing the pandemic

Due to the cur­rent COVID-19 pan­dem­ic, peo­ple have found it chal­leng­ing, if not impos­si­ble, to get their affi­davits and statu­to­ry dec­la­ra­tions witnessed. 

Some Vic­to­ri­an and Fed­er­al Courts have issued prac­tice notes stat­ing that affi­davits will be accept­ed unsworn on the under­stand­ing that they will be sworn lat­er when cir­cum­stances allow.

Prac­ti­tion­ers and clients in New South Wales have been await­ing guid­ance or prac­tice notes regard­ing alter­na­tive pro­ce­dures for swear­ing affi­davits. On 22 April 2020, New South Wales passed a new Regulation.

What’s news in New South Wales?

The Elec­tron­ic Trans­ac­tions Amend­ment (COVID-19 Wit­ness­ing of Doc­u­ments) Reg­u­la­tion 2020 (NSW)

The COVID-19 Leg­is­la­tion Amend­ment (Emer­gency Mea­sures) Act 2020 (NSW) includ­ed a reg­u­la­tion-mak­ing pow­er in sec­tion 17 of Elec­tron­ic Trans­ac­tions Act 2000 (NSW) (the Act) to pro­vide for altered arrange­ments for the sig­na­ture, wit­ness­ing or attes­ta­tion of doc­u­ments, and can include doc­u­ments referred to under, among oth­ers, the Oaths Act 1900 (NSW).

Fol­low­ing the pass­ing of the Elec­tron­ic Trans­ac­tions Amend­ment (COVID-19 Wit­ness­ing of Doc­u­ments) Reg­u­la­tion 2020 (NSW) (the Reg­u­la­tion), which is an ​“emer­gency reg­u­la­tion”, under sec­tion 17 of the Act, the sign­ing of key legal doc­u­ments, includ­ing wills, pow­ers of attor­ney or endur­ing pow­ers of attor­ney, appoint­ments of endur­ing guardian­ship, deeds or agree­ments, affi­davits (includ­ing annex­ures or exhibits to affi­davits) and statu­to­ry dec­la­ra­tions, will now be able to wit­nessed in New South Wales using video technology.

As explained by Attor­ney Gen­er­al Mark Speak­man SC when announc­ing the Reg­u­la­tion, the new tem­po­rary reg­u­la­tion will help reduce face-to-face con­tact dur­ing the COVID-19 pandemic:

“Thou­sands of legal doc­u­ments are exe­cut­ed every day in the pres­ence of one or more wit­ness­es, but COVID-19 restric­tions have made it dif­fi­cult for many peo­ple to do in person…Our first pri­or­i­ty is always the safe­ty and well­be­ing of NSW res­i­dents, which is why we are chang­ing the way these doc­u­ments can be wit­nessed while the pan­dem­ic endures”.

As not­ed above, the Reg­u­la­tion is intend­ed to be tem­po­rary and is due to expire on 26 Sep­tem­ber 2020 or the ear­li­er day decid­ed by the New South Wales Par­lia­ment by res­o­lu­tion of either House of Par­lia­ment: see sec­tion 17(4) of the Act. 

Impor­tant­ly:

  1. tra­di­tion­al meth­ods of sign­ing and wit­ness­ing doc­u­ments remain valid while the Reg­u­la­tions are in force;
  2. the Reg­u­la­tion also does not lim­it video wit­ness­ing to the types of doc­u­ments referred to above and applies to any doc­u­ment that is required to be wit­nessed under an Act or anoth­er law.

How does the Reg­u­la­tion work?

Under the Reg­u­la­tion, a wit­ness must see a per­son sign­ing the doc­u­ment in real time to con­firm the sig­na­ture is legit­i­mate, but now they can do so using video con­fer­enc­ing tech­nol­o­gy. In this regard, a per­son wit­ness­ing doc­u­ments must:

  1. observe the per­son sign­ing the doc­u­ment in real time;
  2. attest or oth­er­wise con­firm the sig­na­ture was wit­nessed by sign­ing the doc­u­ment or a copy of the document;
  3. be rea­son­ably sat­is­fied the doc­u­ment the wit­ness signs is the same doc­u­ment or a copy of the doc­u­ment signed by the signatory;
  4. endorse the doc­u­ment by spec­i­fy­ing the method used to wit­ness the sig­na­ture and that the sig­na­ture was wit­nessed in accor­dance with the Reg­u­la­tion. For exam­ple, a sig­na­ture block could include a state­ment that ​“the doc­u­ment was signed in coun­ter­part and wit­nessed over audio visu­al link (Zoom) in accor­dance with clause 2 of Sched­ule 1 to the Elec­tron­ic Trans­ac­tions Reg­u­la­tion 2017”.

Under clause 1 of the Reg­u­la­tion, audio visu­al link means any tech­nol­o­gy that enables con­tin­u­ous and con­tem­po­ra­ne­ous audio and visu­al com­mu­ni­ca­tion between per­sons at dif­fer­ence places. In prac­tice, and hav­ing regard to Mr Speak­man’s announce­ment regard­ing the Reg­u­la­tion, this like­ly includes Zoom, What­sApp, Skype and FaceTime.

How can we help you?

The effects of COVID-19 are not an obsta­cle to com­plet­ing or exe­cut­ing impor­tant legal doc­u­ments like wills, pow­ers of attor­ney, affi­davits and statu­to­ry dec­la­ra­tions. We can assist you with pro­gress­ing these mat­ters through these unprece­dent­ed times.

A copy of the Reg­u­la­tion is avail­able here https://​www​.leg​is​la​tion​.nsw​.gov​.au/​r​e​g​u​l​a​t​i​o​n​s​/2020 – 169.pdf

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