On 12 May 2020, the Victorian Government introduced the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (the Regulations) which temporarily permits remote witnessing and the use of electronic signatures to sign deeds, mortgages, statutory declarations, wills and powers of attorney in Victoria.
The Regulations are made pursuant to powers granted under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) to address the logistical issues posed by the COVID-19 pandemic, and will remain in effect until 25 October 2020.1
The Victorian legislation follows changes made to Federal legislation (which we discuss in our website article "The use of electronic signature in a remote working Australia") and in New South Wales2 (which we discuss in our website article "The use of video conference to witness documents"). At the time of writing this article about the Victorian changes, similar legislation had been either introduced or foreshadowed in other Australian states and territories.3
Key changes introduced in Victoria by the Regulations
The Regulations allows remote witnessing and electronic signatures by modifying the application of various provisions of the Electronic Transactions (Victoria) Act 2000 (Vic) (ETA), Oaths and Affirmations Act 2018 (Vic), Powers of Attorney Act 2014 (Vic) and Wills Act 1997 (Vic). The key changes introduced by the Regulations are:
(a) extending the use of electronic signatures under the ETA, provided that the signature satisfies the conditions for electronic execution under the ETA;4
(b) allowing 'split electronic execution', that is, allowing different signatories to sign separate copies of the same document, for transactions under the ETA;
(c) allowing electronic signing of statutory declarations, powers of attorney and wills;5
(d) allowing the use of audio visual link:
. to witness transactions under the ETA;
. for making statutory declarations under the Oaths and Affirmations Act 2018 (Vic) including by the declarant, a person assisting the declarant, and the witness;
. for making and witnessing of various powers of attorney under the Powers of Attorney Act 2014 (Vic); and
. to witness execution of a will under the Wills Act 1997 (Vic).
In each instance, there are specific conditions and processes that are imposed by the Regulations that must be adhered to, including that witnesses are generally required to identify that the document was witnessed by an audio visual link, pursuant to the Regulations.
Remote witnessing: What is an audio visual link?
The Regulations define an audio visual link as "facilities (including closed-circuit television) that enable audio and visual communication between persons at different places".6 Although the Regulations do not specify any particular type of software which must be used, commonly used platforms such as Zoom, FaceTime, Microsoft Teams, Skype, Webex and WhatsApp that allow real time video conferencing would satisfy the description.
Wills and Powers of Attorney
In all jurisdictions across Australia, there are strict requirements for the witnessing of wills and powers of attorney, reflecting the significant legal consequences that arise from the execution of these documents. Both wills and enduring powers of attorney must be signed by the person making the document in the presence of two adult witnesses and, in the case of an enduring power of attorney, one of the two witnesses must be an authorised witness, such as a lawyer or a medical practitioner.
Witnessing of wills and powers of attorney by video link will help resolve some of the difficulties that COVID-19 has presented for executing these documents, particularly for the elderly and at-risk groups, those who are self-isolating and for people with mobility difficulties.
Allowing wills and powers of attorney to be witnessed by audio visual link may also avoid disputes about the validity of informal documents which may, prior to this legislation, have been used out of necessity in the current circumstances, and, in particular, might avoid the considerable delay, cost and uncertainty associated with trying to have an informal will admitted to probate under section 9 of the Wills Act 1997 (Vic).
Existing obligations on witnesses not modified by the Regulations
The Regulations do not remove existing obligations imposed on witnesses. For example, depending on the document in question, a "remote" witness must still be satisfied of matters such as:
. the identity of the signatory;
. the capacity of the signatory to make a decision; and/or
. that the signatory is not subject to any undue influence, duress or unconscionable conduct.
Footnotes
1. COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) s 11.
2. Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)
3. See COVID-19 Emergency Response Act 2020 (ACT) s 4. The similar COVID-19 emergency legislation introduced in Queensland, South Australia and Tasmania gives each State government the power to make regulations allowing electronic signing and remote witnessing, although those states have not done so (as at 19 May 2020). Western Australia and Northern Territory have not (as at 19 May 2020) put in place any similar measures.
4. Electronic Transactions (Victoria) Act 2000 (Vic) s 9.
5. COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) regs 18, 35, 40.
6. Evidence (Miscellaneous Provisions) Act 1958 (VIC) s 42C.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
