How to witness and execute documents during COVID-19
By John Fairgray, Luis Ormazabal, Balveen Saini & Nicholas O’Connor – BBW Lawyers
This update is the second part in the BBW Lawyers’ series considering the COVID-19 crisis and its practical effect on commerce in Australia.
The first part of our series provided a summary of the temporary measures implemented by the Federal government following the Coronavirus Economic Response Package Omnibus Act 2020 and points of consideration to assist creditors’ decision-making to ensure the longevity and sustainability of their business through maintaining revenue streams. Please click below.
COVID-19 – Effects on Legal and Debt Recoveries
This second part looks at the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (hereafter “the Regulation”) under the Electronic Transactions Act 2000, and what that means when swearing or affirming documents.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020
The Regulation came into effect on 22 April 2020, to ease the requirements placed upon individuals and parties in their witnessing and otherwise attesting to legal documents, once a previously simple task that has been made more onerous (and in some cases illegal) during the COVID-19 crisis.
Simple in its application, the Regulation is a welcome development, allowing businesses and individuals to properly deal with legal and personal matters during these very challenging times, whilst still exercising caution, and maintaining an appropriate ‘social distance’.
The Practical Applications
From 22 April 2020, witnessing the signature of legal documents may be duly conducted via Audio-Visual Link; that is: “Technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”.
Applicable Documents |
Examples of Audio-Visual Link Platforms |
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· Wills; · Power of attorneys; · Enduring powers of attorneys; · Deeds and agreements; · Enduring guardianship appointments; · Affidavits, witness statements, and all enclosed annexures or exhibits thereto; · Exhibit certificates; · Employment contracts and agreements; and · Statutory declarations.
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· Zoom; · Skype; · Microsoft teams; · FaceTime calls; · Cisco Webex Meetings; · Bluejeans Meetings; · Facebook Messenger video chat; · WhatsApp video calls; · Google Hangouts; and · Snapchat video calls. |
The above list is not exhaustive, as the Regulation is not restrictive as to what constitutes an “Audio-Visual Link Platform”.
Compliance – The BBW Lawyers’ Checklist
Care must still be taken when witnessing and executing documents, as the increased flexibility provided by the Regulation must not allow for complacency.
For that reason, BBW Lawyers’ has prepared a suggested checklist, to ensure compliance when using an Audio-Visual Link to witness execution of documents.
Compliance Checklist – The Electronic Transactions Amendment Regulation 2020 |
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1. The Witness must observe the person who is to sign the document (the Signatory), actually sign the document, in real time. 2. The Witness must, as soon as is practicable, sign the document or a copy thereof, attesting and/or confirming signature by the Signatory was witnessed (a scanned copy is allowed). 3. The Witness must be satisfied to a reasonable degree, that the document or copy of the document which they sign, is the same document (or a copy of the same), signed by the Signatory. 4. The Witness must endorse the document, or a copy thereof, with a statement to the following effect: a. That the document was signed and witness in accordance with The Electronic Transactions Amendment Regulation 2020; and b. How the document was witnessed (what platform did you use). |
For further information or should you require any assistance, please contact John Fairgray (Partner) jfairgray@bbwlaw.com.au, Luis Ormazabal (Senior Associate), lormazabal@bbwlaw.com.au, Balveen Saini bsaini@bbwlaw.com.au and/or Nicholas O’Connor (solicitor) noconnor@bbwlaw.com.au.
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About BBW Lawyers
BBW Lawyers’ commercial, insolvency and debt recovery team works closely with a number of prominent NSW and Australian companies and organisations in providing strategic advice and dedicated legal services. The team comprises of industry specialists who are active members of, and contributors to, the Australian Institute of Credit Management (NSW Divisional President – Balveen Saini, 2019 Legal Representative of the Year – Luis Ormazabal), as well as having extensive experience in all Courts and Tribunals.
© BBW Lawyers 2020. This is general commentary and should not be relied upon as if it were legal advice. No part of this publication may be reproduced by any process without written permission from BBW Lawyers.
