NSW Attorney General Mark Speakman said the new temporary regulation, made under section 17 of the Electronic Transactions Act (NSW), will help reduce face-to-face contact during the COVID-19 pandemic.
“Thousands of legal documents are executed every day in the presence of one or more witnesses, but COVID-19 restrictions have made it difficult for many people to do so in person,” Mr Speakman said.
“Our first priority is always the safety and wellbeing of NSW residents, which is why we are changing the way these documents can be witnessed while the pandemic endures.”
“Under the new regulation, a witness must see a person signing the document in real time to confirm the signature is legitimate, but now they can do so using video conferencing technology.”
The witness will 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 the signatory signs. Traditional methods of signing and witnessing these documents remain valid while the regulation is in force.
These changes will make it easier for people to stay home and reduce physical interactions, while still completing important transactions.
To facilitate the witnessing of NSW statutory declarations during COVID-19, the categories of people who are authorised to witness documents has been expanded in line with federal legislation.
Stakeholders including the judiciary, the Law Society of NSW, the NSW Bar Association, Justice of the Peace associations and other relevant professional bodies were consulted on the changes.
The (NSW) Government will continue to consult with stakeholders about options for allowing certain documents to be signed and executed electronically.
Commentary from Intello Legal
Although this change is only temporary and only applies to NSW, it will hopefully be the first step to removing all impediments to electronic signing of a wider range of documents including SMSF trust deeds.
It's also important to note that these changes still relate to the witnessing of wet-ink handwritten signatures of Wills, deeds, statutory declarations and powers of attorney documents.
Intello's independent SMSF audit partner ASF Audits has also flagged that the ATO is aware of the technical legal impediments issue around e-signatures for a wide range of SMSF documents however they are not dedicating any resources around compliance and taking a pragmatic, common sense approach to the issue.