This article takes a brief look at the current state of affairs for the remote witnessing and electronic execution of deeds across Australian jurisdictions.
New South Wales
On 16 November 2021 the Electronic Transactions Amendment (Remote Witness) Bill 2021 was passed by the NSW State Parliament, paving the way for permanent remote witnessing in NSW. Given the recent update in NSW, this article examines the state of remote witnessing and electronic execution of deeds in across each state and territory.
Background to changes in NSW
Following the beginning of the COVID-19 pandemic, temporary measures were introduced in April 2020 to allow for the remote witnessing of documents that normally required to be witnessed in persons. These were temporary measures, however a pilot scheme for remote witnessing and attestation was introduced later that year. The scheme is now a permanent aspect of the Electronic Transactions Act (2000) NSW (‘the NSW Act’).
What documents can be remotely witnessed under the scheme?
Under s 14G of the NSW Act, 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 arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.
“Document” is defined under the NSW Act as including the following:
· a will
· 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
“Audio visual link” means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.
What is required of a person witnessing a document via audio visual link?
A person witnessing the signing of a document via audio-visual means must:
(a) observe the person signing the document sign the document in real time;
(b) attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document;
(c) be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory; and
(d) endorse the document, or the copy of the document, with a statement that specifies the method used to witness the signature, and that the document that was witnessed.
Both the signatory and witness may be outside the jurisdiction of NSW, however the place of execution is taken to the place at which the signatory was when the signatory signed the document.
Do these amendments affect the electronic signature of documents?
No, these provisions relate only to the remote witnessing of documents. Deeds in NSW can be electronically signed and attested under s 38A of the Conveyancing Act (1919) NSW.
Victoria
The Victorian rules surrounding remote witnessing and electronic signing of deeds closely mirrors those in NSW.
What documents can be remotely witnessed in Victoria?
Like NSW, legislative amendments were made in 2021 to create permanent rules allowing for the remote witnessing of documents. Under s 12 of the Electronic Transactions Act (Vic) 2000 (‘the Vic Act’), where there is a requirement pursuant to the laws of Victoria that a person be present to witness the signing of a document, they may do so by audio visual link.
What is required of a person witnessing a document via audio visual link?
A person remotely witnessing must meet the following requirements:
(a) The witness must see the signatory sign the document;
(b) The witness must be reasonably satisfied that the document signed as a witness;
(c) All requirements for witnessing by audio visual link occurred on the same day;
(d) Any other prescribed requirements (if any); and
(e) The witness must ensure a statement is included on the document the witness signs that all the requirements of this section have been met.
Can deeds be electronically signed?
Yes – under s 12 of the Vic Act Victorian deeds can be executed in electronic form, and may be signed, sealed and delivered by electronic communication.
Queensland
With the COVID-19 pandemic Queensland introduced a number of temporary measures to allow for the remote witnessing and electronic signing of deeds. Unless otherwise extended, these are currently set to expire on 30 April 2022.
What documents can be remotely witnessed in Queensland?
The remote witnessing of documents and electronic execution of deeds are both dealt with under the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation (Qld) 2020 (‘the QLD Regulations’). “Document” is broadly defined under the QLD Regulations to include:
(a) anything on which there is writing;
(b) anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) any record of information that exists in digital form and is capable of being reproduced, transmitted, stored or duplicated by electronic means.
What is required of a person witnessing a document via audio visual link?
Remote witnessing is dealt with under Part 4 of the QLD Regulations. These regulations differ somewhat from the requirements of NSW and Victoria. Under s 16 of the QLD Regulations a document may be witnessed by audio visual link only if the person is a “special witness”. A “special witness” is defined in the QLD Regulations as a person who is an Australian legal practitioner, a justice or commissioner for declarations, or a notary public.
The witness must verify the identity of the signatory, and that the name of the signatory matches the name of the signatory as contained in the document. The witness must:
(a) be satisfied by the sounds and images made by the link in real time;
(b) ensure that the signatory signs each page of the document; and
(c) be satisfied that the signatory is freely and voluntarily signing the document.
Can deeds be electronically signed?
Yes – deeds can be electronically signed under s 12O of the QLD Regulations.
The other states and territories – South Australia, Tasmania, Western Australia, Northern Territory and Act
Can deeds be remotely witnessed in the other states and territories?
No.
Can deeds be electronically signed in the other territories?
No.
The state of affairs regarding the remote witnessing and electronic signature of deeds is far from uniform across Australian jurisdictions. Given this disparity, practitioners should be consciously aware of what rules apply in any given transaction. In NSW, Victoria and Queensland, as these rules are relatively new, practitioners should be familiar with the requirements placed on a person witnessing a document via audio visual link. Failure to do so may lead to unforeseen yet avoidable problems down the road – such as difficulty in proving a will.
