Using Audio Visual Links for Witnessing Documents

 

Social distancing and isolation have become the new way of our world. With these new words that have quickly become part of our vernacular also comes changes in the way that we conduct our business, particularly the business of not touching documents, and not undertaking visits to the houses of our clients. This is particularly the case when we don’t necessarily know the hygiene and distancing measures that others have been undertaking, which means the necessity to keep ourselves safe must be paramount.

The Government has recognised that there may be risks associated with those close contact client appointments, particularly for the witnessing of legal documents. To address this, that they have introduced The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 which makes the following changes:

• Documents that require a witness may be witnessed by audio visual link (AVL)
• Tasks in relation to witnessing a document may be performed by AVL

So what is actually meant by witnessing documents being signed by AVL? Under the new regulation, a witness must see a person signing the document in real time to confirm the signature is legitimate, which they can now do by viewing the act of signing by one of the many face to face video conferencing methods. The witness can then sign the document, or a copy of the document, to confirm they witnessed the signature.

This could be done on a hard copy that is scanned and sent to the witness or on an identical counterpart of the document that the signatory signs. The witness must be reasonably satisfied that the document they sign is the same document, or a copy of the document signed by the signatory. Also, the witness must endorse the document with a statement that specifies the method used to witness the signature and that it was witnessed in accordance with the new regulation.

Written oaths, declarations or affidavits required for a purpose specified in section 26 of the Oaths Act 1900 may be taken or made before an Australian legal practitioner.

What is meant by this amendment is that a New South Wales Legal Practitioner will not be the only legal practitioner that can witness an Oath, Declaration or Affidavit in New South Wales, any licensed Australian Legal Practitioner will be accepted.

Statutory declarations may be made before the Commonwealth’s expanded definition of whom a statutory declaration under the Statutory Declarations Act 1959 (Cth) may be made. This list includes:

• architect
• chiropractor
• dentist
• financial advisor or planner
• legal practitioner, with or without a practising certificate
• medical practitioner
• midwife
• psychologist
• veterinary surgeon
• Justice of the Peace
• optometrist
• occupational therapist
• nurse
• migration agent registered under the Migration Act 1958
• pharmacist
• physiotherapist
• trade mark attorney
• patent attorney

Agents need to be sure that documents that they are collecting or preparing for property transactions have been witnessed by an appropriate person, to ensure the validity of the process.

These temporary regulation changes will expire on 26 September 2020, unless changed by further regulation or resolution of Parliament.