In response to the restrictions due to COVID-19, several Australian states and territories have introduced temporary, emergency response measures to allow certain documents to be signed electronically and witnessed by audio visual link. We have provided a “check list” of the laws New South Wales, Victoria, Queensland and ACT have passed in relation to electronic signatures and remote witnessing in the summary table below.
If you seek to execute a document electronically, it is important to be aware of the position under the relevant governing law. There may be other specific processes that must be followed to ensure that the document is valid, some of which are highly prescriptive. In many instances, the signing and witnessing of important documents by conventional means may be preferable, where possible. We have previously published articles which provide further detail on the legislative changes that allow the use of video conference to witness documents in New South Wales, the use of electronic signatures and remote witnessing in Victoria, and the use of electronic signatures generally as at 6 May 2020.
| TYPE OF DOCUMENT | ELECTRONIC SIGNATURES? | REMOTE WITNESSING? |
| New South Wales
Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) |
||
| Deeds[1] | ✓ | ✓ |
| Wills | ✓ | |
| Powers of Attorney | ✓ | |
| Enduring Guardianship | ✓ | |
| Statutory Declarations | ✓ | |
| Affidavits | ✓ | |
| Victoria
COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) |
||
| Deeds | ✓ | ✓ |
| Mortgages | ✓ | ✓ |
| Wills | ✓ | ✓ |
| Powers of Attorney | ✓ | ✓ |
| Statutory Declarations | ✓ | ✓ |
| Affidavits[2] | ✓ | ✓ |
| Queensland
Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020 (Qld) |
||
| Deeds | ✓ | Do not need to be witnessed[3] |
| Mortgages | ✓ | Do not need to be witnessed in certain circumstances[4] |
| Wills | ✓ | |
| Powers of Attorney | ✓ | |
| Statutory Declarations | ✓ | ✓ |
| Affidavits | ✓ | ✓ |
| Australian Capital Territory
COVID-19 Emergency Response Act 2020 (ACT) |
||
| Wills | ✓ | |
| Powers of Attorney | ✓ | |
| Affidavits | ✓ | |
Where a type of document is not covered by the relevant COVID-19 emergency response measures, the normal position will apply (as set out in our article here).
Emergency legislation is in place in South Australia[5] and Tasmania[6] to allow regulations to be made to authorise electronic signatures and remote witnessing. However, the South Australian regulations still require a person be physically present to witness the signing, certification or stamping of a document or to take any oath, affirmation or declaration in relation to a document.[7] As at 16 July 2020, Tasmania has not introduced regulations to authorise electronic signatures and remote witnessing.
In addition to the above changes, the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) provides for the electronic execution of documents by corporations in certain circumstances. This is covered in more detail in our article here. Update: These provisions have now been extended until 21 March 2021, in accordance with the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 (Cth).
Expiration of measures
Each Australian state or territory has introduced measures at different times. Therefore, the measures will expire at different times.
- In New South Wales, the remote witnessing measures will expire on 22 October 2020. Update: The NSW measures have been extended so that they now expire on 26 March 2021.
- In Victoria, the remote witnessing and electronic signing measures will expire on 24 October 2020. Update: The Victorian measures have been extended so that they now expire on 26 April 2021.
- In Queensland, the measures will expire on 31 December 2020.[8] Update: The Queensland measures have been extended so that they now expire on 30 April 2021.
- In the ACT, the measures will expire at the end of a 12-month period during which no COVID-19 declaration has been in force.[9]
The article was originally published on Wednesday, 10 June 2020. The content was last updated on Tuesday, 6 October 2020.
[1] See also the Conveyancing Act 1919 (NSW) s 38A.
[2] Affidavits are not dealt with by the Victorian regulations, but are dealt with by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (see Part 3.13) introducing new section 49B to the Oaths and Affirmations Act 2018 (Vic).
[3] See regulation 12S.
[4] Where the mortgage is held by the mortgagee on the same terms as the mortgage that is lodged via an Electronic Lodgment Network Operator and complies with section 11 of the Property Law Act 1974 (Qld), it does not need to be witnessed; see regulation 12ZD.
[5] COVID-19 Emergency Response Act 2020 (SA) s 17.
[6] COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (TAS).
[7] COVID-19 Emergency Response (Section 17) Regulations 2020 (SA) reg 4.
[8] Justice Legislation (COVID-19 Emergency Repsonse – Wills and Enduring Documents) Regulation 2020 Part 5, reg 27.
[9] COVID-19 Emergency Response Act 2020 (ACT) s 5(1).