Remote witnessing of documents in New South Wales – an update

Due to the continued need to meet social distancing requirements, the NSW Attorney-General has replaced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 which permitted the signing and witnessing of various documents remotely.

The regulations have been replaced by the addition of new Part 2B to the Electronic Transactions Act 2000. The “Part 2B Remote witnessing pilot scheme” applies to documents that until earlier this year were legally required to be signed by a person in the physical presence of one or more people (whether independent individuals, legal practitioners, justices of the peace, etc.). This includes documents such as:

• Wills;
• Powers of attorney and Enduring powers of attorney;
• Deeds or Agreements;
• Appointments of enduring guardian;
• Affidavits; and
• Statutory declarations.

Section 14G(2) states that:

“A person witnessing the signing of a document by audio visual link (the witness) must:

1. observe the person signing the document (the signatory) sign the document in real time, and
2. attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and
3. be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
4. endorse the document, or the copy of the document, with a statement –
   1. specifying the method used to witness the signature of the signatory, and
   2. that the document was witnessed in accordance with this section.”

The witness can either:

• sign the original document after it is sent to them;
• a counterpart of the document; or
• the signatory can send an electronic copy to the witness to countersign.

There is no specific time by which the witness should sign after the signatory, but s14G(3) does say that a counterpart or electronic copy should be signed “as soon as practicable after witnessing the signing of the document“.

Part 2B commenced on 28 September 2020 and will be repealed on 1 January 2022. Great care should still be taken to ensure that signatories and witnesses are correctly identified and that exact copy documents are signed by the parties.

This article was written by Michael Henley, Partner and Philip Davis, Special Counsel.