The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulation) is another government initiative in response to COVID-19. The Regulation officially came into force on 22 April 2020 and aims to provide clarity on how some documents can be witnessed by an eligible witness via audio visual link. One of the most critical aspects of the Regulation is that it does away with the requirement for a witness to be physically present to witness the execution of documents. In this blog, we answer some of the most common questions regarding the new method of witnessing legal documents electronically.

What does audio visual link mean?

Audio visual link means any technology that enables audio and visual communication between two persons who are not physically present in the same room. This usually consists of the classic video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.
What documents can be witnessed by audio visual link?

The below documents can now be witnessed through an audio visual platform:

  • a Will;
  • a Power of Attorney or Enduring Power of Attorney;
  • an Appointment of Enduring Guardian;
  • a deed or agreement;
  • an affidavit (including any annexure or exhibit to an affidavit) except for the purposes of divorce; and
  • a statutory declaration.

How do I witness a document by audio visual link?

In order to have a validly witnessed document it is imperative that the Regulation is followed correctly and carefully. In accordance with the Regulations, a person witnessing the signing of a document using an audio visual link must:

  1. Observe the person signing the document in real time (i.e. not via a pre-recorded video) to confirm the signature is legitimate.
  2. Next, the person witnessing the document must sign the document (or a copy) as soon as possible after the witnessing via audio visual link to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signed which is either sent in the post or electronically to the witness.a.
    • It is important to note that the person witnessing the document must be reasonably satisfied that the document signed by the witness is the same document signed by the signatory.
  3. The person witnessing must then state on the document the method of witnessing (either countersigned or counterpart) that was used and that it was witnessed in accordance with the Regulation.
    • For example: “I, [insert name here] attest that this document was signed in counterpart and witnessed by me by audio-visual link via Skype in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.

Are there changes to who can act as a witness?

The Regulation has altered who can witness a Statutory Declaration. Traditionally, only Justices of the Peace and Solicitors could act as a witness to a statutory declaration.

The Regulations have been amended to allow the below persons to witness a statutory declaration

  • financial advisors;
  • pharmacists;
  • nurses;
  • accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
  • psychologists;
  • veterinary surgeons;
  • police officers; and
  • teachers (only those employed on a permanent full time or part time basis at a school or tertiary education institution).

Further Information

With so many changes happening in the legal sector due to COVID-19 it is important to be fully aware of how these may practically impact you. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. Check out our blog for further information and analysis on the restrictions and rules in place during COVID-19.