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.
- 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.
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).
Capacity of Witness (e.g Solicitor or Justice of the Peace)
- 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.
 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
 Electronic Witnessing Regulation, clause 2(1)
 Electronic Witnessing Regulation, clause 2(2)
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