Witnessing Documents in this New World – Electronic Witnessing of Documents is Here to Stay!

Defeating the tyranny of distance, though electronic witnessing. The new electronic witnessing laws in New South Wales are now permanent and in effect as of 29 November 2021.

A Brief History of Electronic Witnessing in New South Wales

Prior to 2020, the primary way to have a document witnessed was to have the witness and signatory in the same room, with the document before them, as it is signed. However, the restrictions on travel and meeting indoors, due to COVID-19, since then has made it difficult for people to conduct these in-person signing and witnessing procedures.

Last year, the New South Wales Government introduced a Pilot Scheme, as part of the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (the Pilot Scheme), in order for documents to be witnessed via electronic viewing, allowing people to sign documents without leaving their home or office, creating better access for people in situations where travel is difficult. The Pilot Scheme is currently in force but will expire on 1 January 2022. As a result the New South Wales Government introduced a New Act to, amongst other things, make the changes introduced in the Pilot Scheme permanent.

The New Act

The Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) (the New Act) entered law on 29 November 2021.

The core of the Pilot Scheme, the requirements and ability of a witness to witness the signature of the document by audio visual link, remain unchanged in the New Act. The witnessing of a document will be conducted via audio visual link, the witness will view the signing of the document in that way. After witnessing the signature on the document, the witness must undertake safeguards to protect against signing and witnessing different documents, they are;

Attaching a statement, to either the original document itself, a copy of the document or if applicable a counterpart signed by the witness; stating how the signature on the document was witnessed and that the witnessing was conducted in accordance with the specific requirements of the New Act.

After that the witness must;

Either, countersign the original of the document, countersign a copy of the document signed by the signatory delivered electronically or by countersign of a counterpart of the document, as soon as practical, after witnessing the signature by audio visual link.

The New Act includes changes to the Pilot Scheme that deal with allowing for a witness to be outside of New South Wales, while the signatory is within New South Wales. This improvement significantly increases the amount of people who can witness documents which increases efficiency, reduces/avoids delays and increases accessibility, by removing distance as an impasse. If the document is witnessed by someone outside the jurisdiction of the signatory, the New Act requires that the rules from New South Wales apply to the witness, regardless of where the witness is located.

Benefits for all Australians but some more than others

The New Act allows more people to witness documents, even by people outside the legal jurisdiction of the signatory, removing travel requirements entirely. Before 2020 if you wanted a document witnessed either you or the witness had to travel, now it can be conducted from the convenience of your home, office or anywhere.

While the New Act will benefit all Australians, the benefits will be felt most keenly by rural and regional Australians, as they usually have less access to legal professionals and qualified witnesses than those in cities and more densely populated areas, and anyone who is mobility challenged, either through illness, injury or disability.

Need a witness?

The team at GPA Law are experienced in using the Pilot Scheme/the New Act and are happy to provide further information and assistance in understanding the changes to the way document witnessing is performed under the New Act, and how it affects you, your business or clients. To receive this information or our assistance, please contact Gavin Parsons of Gavin Parsons and Associates on (02) 9262 4471 or at gavin@gpalaw.com.au.