Electronic Transactions Legislative Amendments

As of 22 April 2020, video conferencing technology can be used in the witnessing of important legal documents under amendments made to the Electronic Transactions Regulation 2017 (NSW) (Regulation) by the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).

 

What technology or service can I use?

 

Technology, referred to as “audio visual link”, which can be used must enable “continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing” (emphasis added) (Regulation, Sch 1, cl 1). Although not limited to any one service, this includes popular applications like Skype, WhatsApp, FaceTime and Zoom and would extend to any service which allows both real time audio and visual communication.

 

What documents can be witnessed in this way?

 

The documents which can be witnessed via use of such technology include: wills, general and enduring powers of attorney, or an enduring power of attorney, deeds or other agreements, enduring guardianship appointments, affidavits (including an annexure or exhibit to the affidavits) and statutory declarations, but the term “document” is not defined and likely has much broader scope.

 

What is the witnessing process?

 

The process for witnessing the signing of a document by “audio visual link” is:

 

  1. observe the person, being the signatory, sign the document in real time;
  1. confirm that the signature was witnessed by signing that document or a copy of that document;
  1. endorse the document, or the copy of the document, with a statement:
  • specifying the method used to witness the signature of the signatory; and
  • that the document was witnessed in accordance with the Regulation.

By way of example, this endorsement could read: “I witnessed the signing of this document in real time by way of WhatsApp video call with the signatory in accordance with the Electronic Transactions Regulation 2017 (NSW)”.

 

At all times, the individual witnessing the document must be reasonably satisfied that the document the witness signs is the same document, or a copy of the document signed by the signatory ((Regulation, Sch 1, cl 2(2)(c)). Consider the practical/technical problems this causes. A webcam is not going to cut it. As a witness, you will need to have, at a minimum, a camera set up which shows (a) the signatory's/sealer affixer's face and ID documents if you don’t know the person (b) what the person you are witnessing is signing/sealing, i.e. identification of the specific document and (c) the signature/seal occurring. Consider also the liability issues later when someone alleges they did not sign the document relied on, as has occurred with documents signed using Docusign.

 

What if I need something else witnessed?

 

The amendments to the Regulation are unclear as to whether they apply to those documents that fall outside of the definition of “documents”.

 

Clause 2(1) of Schedule 1 of the Regulation reads: “For the purposes of section 17(1)(b) and (c) of the Act, despite any other Act or law

 

  1. if the signature of a document is required under an Act or another law to be witnessed, the signature may be witnessed by audio visual link, and
  1. arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.” (emphasis added)

Unlike subclause 1(b), subclause 1(a) is straightforward in that allows signatures on the defined documents to be witnessed via audio visual link.

 

Clause 2(4) of Schedule 1 of the Regulation reads: “Without limiting subclause (1)(b)—

 

  1. arrangements in relation to witnessing signatures by audio visual link include the following—
  1. certification of matters required by an Act or another law,
  2. confirming or verifying the identity of the signatory to a document,
  3. attestation of a signature,
  4. swearing or affirming the contents of an affidavit,
  5. seeing the face of the signatory, and
  1. a requirement in an Act or another law for the presence of a witness, signatory or other person is taken to be satisfied if the witness, signatory or other person is present by audio visual link.”

Accordingly, it appears that pursuant to clauses 2(1)(b) and 2(4), the Regulation extends to allow:

 

  • any form of certification that requires a signature to be witnessed, to have the signature witnessed by audio visual link. Presumably that certificate, or a copy of that certificate, will need to be signed by the witness;
  • confirmation or verification of the identity of a signatory by audio visual link, without limiting the means for doing that, so permitting use of AV technology to view the signatory's face if known to the witness or otherwise sighting ID documents (e.g. driver licence, passport); and
  • attestation of documents via audio visual link, including attestation of witnessing of a signature or affixation of a seal.

 

What if an Owners Corporation needs to affix it seal on a document?

 

Pursuant to section 273 of the Strata Schemes Management Act 2015 (NSW), the seal of an Owners Corporation must be affixed in the presence of two owners or the strata managing agent of the Owners Corporation, based on the size of the Scheme. The simplest solution would be to authorise the strata managing agent to affix the seal and attest having done so. However, owners corporations would under these amendments have the option of having the two owners (either or both) witness and attest the affixation of the seal to the relevant document in the same way they would witness and attest a signature.

 

Further, there are various circumstances where the affixing of the seal is not required as a matter of law and, in these cases, the Owners Corporation or Strata Committee may resolve to appoint a particular person, such as the Secretary, to execute certain documents on its behalf without use of the seal or to provide the strata managing agent with the appropriate authority to execute such documents on the Owners Corporation’s behalf without use of the seal. We would encourage seeking some advice prior to using these alternative measures.

 

Similar changes have been made with respect to documents such as forms and plans which are required to be lodged with Land Registry Services.

 

What if I need witnessing or attestation of an overseas document required to be witnessed by a notary public?

 

Unfortunately, neither the Australian Department of Foreign Affairs and Trade nor the Society of Notaries of New South Wales, let alone foreign entities, have issued guidance on what documents, if any, will be accepted by them as a result of the changes to the Regulation and we have written to them requesting clarification.

 

Accordingly, at this stage, all witnessing, certification and attestation of documents by use of audio visual link should be limited to documents to be used within Australia only.

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

 

 

 

Prepared by Bannermans Lawyers

Updated 11 May 2020

 

Printable format click here     

 

For more information on this topic or any legal enquiries please contact your Strata Team.

   
 

Quick Contact US