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

The NSW Government has finally rolled out a solution to witnessing documents in our current socially distanced world.

The COVID-19 Legislative Amendment (Emergency Measures) Bill 2020 No 1 (the Covid Act) was assented on 25 March 2020 in response to the COVID-19 pandemic. The Covid Act has significant ramifications across the state’s legislation landscape – from leasing through to how hearings are conducted.

Access the Covid Act here.

A particularly significant change (made under section 17(1)(b) of the Covid Act) is the introduction of the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Electronic Witnessing Regulation), which came into effect on 22 April 2020. A copy of the regulation is available here.

While it is not clear whether the Electronic Witnessing Regulation will be a permanent fixture in NSW’s legislative regime1, the changes represent a major step in facilitating efficient execution and witnessing of documents.

Amendments to the Witnessing Process

The amendments introduced under the Electronic Witnessing Regulation include2:

  • Where a signature of a document is required by law to be witnessed, the signature may be witnessed by audio-visual link.
  • Necessary arrangments to facilitate the witnessing of signatures may be performed by audio-visual link. These include:
    • Confirming or verifying the identity of the signatory;
    • Swearing or affirming the contents of an affidavit; and
    • Seeing the face of the signatory.
  • The 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 a copy of the signed document electronically the witness can countersign the document as soon as practicable after witnessing the signing of the document.

Witness Requirements

In order to ensure the validity of the witnessing process, the witness is required to follow a number of steps, outlined in clause 2(2) of Part 1 of the Electronic Witnessing Act3. These include:

  • Observing the signatory sign the document in real-time;
  • Confirm that the signature was witnessed by signing the document or a copy;
  • Being reasonably satisfied the document signed by the witness is the same as (or a copy of) the one signed by the signatory;
  • Endorse the document with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the Electronic Witnessing Regulation.

Practical Tips

If you are going to witness a signature by audio-visual link, we recommend following these steps to avoid the validity of the signature being brought into question:

  • Take all reasonable steps to ensure the signatory is who they say they are – including requiring them to provide a scanned copy of their licence (or other identification document) for your records and to hold the same up to the camera during the audio-visual meeting.
  • Ensure you watch carefully as the signatory signs the document – this means you must be able to see their face and hand as they sign the document and be able to determine that no one else signed the document;
  • Take all steps to satisfy yourself that the document you sign is, in fact, the same document (or a copy) of the document signed by the signatory (including watching the signatory scan a copy of the document if necessary);
  • Write a statement on the document specifying the method you used to witness the signature (such as Zoom Conference or other audio-visual link technology) and that the document was witnessed in accordance with the Electronic Witnessing Regulation. We recommend that the statement be along the lines of the following:

“I, [INSERT NAME], being the witness to the signature of this document certify that I witnessed the signatory, [INSERT SIGNATORY’S NAME] execute the document by [INSERT TECHNOLOGY USED TO WITNESS THE SIGNATURE] and that I witnessed the signature in accordance with the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).

Signed: [INSERT]

Capacity of Witness (e.g Solicitor or Justice of the Peace)

Date: [INSERT]”

  • Ensure the signatory shows you the document clearly and that you are able to maintain vision of the document as the signatory signs the same.
  • Keep detailed file notes regarding the date, your location, and the program used at the time you witnessed the signature – this will assist in the event any issues are raised regarding the validity of an official document.
  • If you consider it is necessary to record the audio-visual meeting, ensure you obtain consent from all parties prior to recording.

 


[1] Section 17(4) of the Covid Act states that the Electronic Witnessing Regulation will expire 6 months from 22 April 2020 unless Parliament decides otherwise
[2] Electronic Witnessing Regulation, clause 2(1)
[3] Electronic Witnessing Regulation, clause 2(2)

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