Electronic signing is here to stay – New South Wales

June 28, 2022

In Queensland, New South Wales and at a Federal level legislation has been passed providing for remote company meetings, electronic signing and the witnessing of certain documents over audio-visual link (AVL) in the wake of the COVID-19 pandemic.

These legislative provisions will now permanently aid in the efficiency and accessibility of creating and signing various legal documents.

We will cover these changes in three parts including:

Part 1 – Queensland

Part 2 – New South Wales

Part 3 – The Corporations Act and companies

In this bulletin we cover Part 2 – New South Wales

In NSW the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) came into effect in November 2021 and made the temporary provisions in Part 2B of the Electronic Transactions Act 2000 (NSW) (the ETA) that allowed the witnessing of documents by AVL permanent.

The ETA now permits the witnessing of a ‘document’ to be by AVL. Document includes:

• a will;
• a power of attorney or an enduring power of attorney;
• a deed or agreement;
• an enduring guardianship appointment;
• an affidavit, including an annexure or exhibit to the affidavit; and
• a statutory declaration.

Audio Visual Link is defined as technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing. When witnessing documents over AVL, the witness must also take care to verify the identity of the signatory and be satisfied that it is them signing the document, that they are freely and voluntarily making the document and that the document is the same as the one they are signing as a witness if signing a counterpart.

There are certain criteria that must be met to satisfactorily witness a document remotely, a witness must:

1. Observe the person signing the document in real time.
2. Confirm that they witnessed the signature by either signing a counterpart or a scanned copy of the signed document. Either way the witness must sign as soon as practicable after witnessing the signing of the document.
3. Be reasonably satisfied that the document they sign is the same document, or a copy of the document, that they have observed the signatory sign.
4. Endorse the document with a statement specifying the method used to witness the signature (for example, audio visual link) and that the document was witnessed in accordance with s 14G of the ETA.

In NSW a document may be witnessed via AVL even if the signatory, witness or both are outside of the jurisdiction of NSW so long as the document is made or required to be signed under an Act or law of NSW or the governing laws for the document are the NSW laws.

The position in NSW relating to electronic signing has not changed with the implementation of the remote witnessing procedures. This means that electronic signatures are not possible for wills, enduring powers of attorney, enduring guardian appointments, affidavits and statutory declarations even though AVL witnessing is now possible for those documents, these still require a wet ink signature.

How we use technology at Fox and Thomas

Fox and Thomas act for clients all over Australia and internationally, particularly throughout regional and rural Queensland and New South Wales. We are acutely aware of the difficulty many clients face in signing legal documents when they live remotely.

We regularly meet with client by videoconference and employ various apps and programs to assist our clients to sign documents validly and with the use of technology wherever possible.

To discuss your options in signing documents by AVL or meet with us by videoconference, please contact a member of our team.