The NSW Government is the first state to introduce the temporary measure of using an audio visual link (that includes video conferencing) to witness documents, provided certain requirements are met. This article sets out those requirements and identifies what documents can be witnessed by audio visual link.
The temporary measure of witnessing documents by audio visual link was introduced through the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) ("the Regulation") on 22 April 2020 and will remain in place for six months, subject to any changes by Parliament1. It adds to the temporary measures already in place to account for the practical difficulties of executing documents while working remotely, including the use of electronic signatures.
What is audio visual link?
The Regulation defines audio visual link as "technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing".2 This could include the commonly used platforms such as Zoom, FaceTime, Microsoft Teams, Skype and WhatsApp that allow for a signatory and witness to see each other in real time.
What documents can be witnessed by audio visual link?
The Regulation sets out what documents can be witnessed by audio visual link, including:
- a will;
- a power of attorney or an enduring power of attorney;
- a deed or agreement;
- an enduring guardianship appointment;
- an affidavit, including an annexure or exhibit to the affidavit;
- a statutory declaration.3
What is the process of witnessing documents by audio visual link?
To ensure the use of video conference to witness a document has the same effect as the document being witnessed in person, there are certain requirements the witness must follow:
- observe the person sign the document in real time (i.e. the signing of the document cannot be pre-recorded and the camera angle should show the face of the signatory and their singing hand); and
- confirm the signature was witnessed as soon as practicably after (this could be done by signing an identical counterpart of the document or countersigning a signed copy that has been scanned and sent electronically to you by the signatory); and
- be reasonably satisfied that the document signed by the witness is the same document, or a copy of the document signed by the signatory; and
- endorse the document with a statement identifying the method used to witness the signature and that the document was witnessed in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.4
Whilst the regulations provide for remote witnessing, they are silent in relation to any required geographical location of the witness. The conservative approach is therefore to ensure that the position at law prior to the regulations coming into effect is observed in relation to the geographical location of the witness. For example, the Oaths Act 1900 (NSW) s.26(1)(a) contemplates that both the signatory and witness of an oath, declaration or affidavit pursuant to that sub-section will be located in NSW.
The situation in other Australian states
At this stage, NSW is the only state to introduce these measures. However, it is expected for similar measures to follow in Victoria. The current situation in Queensland is that the use of video conference to execute a document is limited to wills between 1 March 2020 and 30 September 2020.5
Footnotes
1 Electronic Transactions Act 2000 (NSW) s 17(4).
2 Electronic Transactions Regulation 2017 Schedule 1, Part 1, Clause 1 (definition of 'audio visual link').
3 Electronic Transactions Regulation 2017 Schedule 1, Part 1, Clause 1 (definition of 'document').
4 Electronic Transactions Regulation 2017 Schedule 1, Part 1, Clause 2.
5 https://www.courts.qld.gov.au/__data/assets/pdf_file/0007/646837/sc-pd-10of2020.pdf
Originally published 4th May 2020
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.
