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 make decisions to ensure the longevity and sustainability of its business through maintaining revenue streams: see COVID-19 - Effects on Legal and Debt Recoveries Part 1.

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

  • 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.

Examples of Audio-Visual Link Platforms

  • 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’ Check-List

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

  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:
    1. That the document was signed and witness in accordance with The Electronic Transactions Amendment Regulation 2020; and
    2. How the document was witnessed (what platform did you use).

For further information or should you require any assistance, please contact John Fairgray (Partner), Luis Ormazabal (Senior Associate),, Balveen Saini and/or Nicholas O'Connor (solicitor)