Electronic execution changes in Victoria

In an effort to cure a number of logistical issues arising out of the COVID-19 pandemic, new Victorian Regulations for the execution and witnessing of documents were passed on 12 May 2020.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 are made under the COVID-19 Omnibus (Emergency Measures) Act 2020 and largely follow similar legislative reforms in other jurisdictions to allow for electronic signatures and witnessing documents via audio visual links. These legislative reforms largely mirror one another (with slight variations, particularly in South Australia and Tasmania).

The objective of the Regulations is to modify the application of certain acts (in particular, the Electronic Transactions (Victoria) Act 2000, Oaths and Affirmations Act 2018, Powers of Attorney Act 2014 and Wills Act 1997) to further provide for the use of electronic signatures, witnessing of documents by audio visual links and related matters.

Key changes

The Regulations make a number of key changes to how transactions (including deeds and mortgages, statutory declarations, powers of attorney and wills) can be witnessed and executed in Victoria. A snapshot of the changes is below:

• subject to any other specific legislative requirements, deeds and mortgages can now be signed electronically in accordance with the requirements of the Electronic Transactions (Victoria) Act 2000
• in relation to transactions which are governed by the Electronic Transactions (Victoria) Act 2000:
  • witnessing signatures by audio visual link is now permitted, subject to the witness writing a statement that they observed the signing by audio visual link
  • signatures are now considered valid across separate copies of documents (i.e. two signatories may provide different electronic copies of the same document with their own electronic signature affixed to their own copies).
• declaring a statutory declaration is now permitted by audio visual link for the purposes of the Oaths and Affirmations Act 2018. Witnesses, declarants and those assisting declarants will need to follow the requirements stated in the Regulations
• enduring and non-enduring powers of attorney (including revocations of the same) are able to be executed and witnessed by audio visual link for the purposes of the Powers of Attorney Act 2014 in accordance with requirements stated in the Regulations
• execution, alteration and revocation of a will by a testator in the presence of a person for the purposes of the Wills Act 1997 may now occur where parties are present by audio visual link in accordance with the conditions stated in the Regulations.

The changes made by the Regulations are precise in nature (particularly in relation to the process to be followed for statutory declarations, powers of attorney and wills) and clients should remain cautious in changing their current practices without reviewing the Regulations or seeking legal advice.

Parties may also seek to include express drafting in their documents which contemplates execution by electronic means (as is currently done in anticipation of using products such as Docusign) and witnessing by audio visual link.

Further and while not required by the Regulations:

• parties may wish to consider keeping a recording of any audio visual link in which a document is witnessed (subject to any privacy law requirements)
• witnesses may wish to consider requesting a scanned version of the signed document for the witness to countersign (noting that the reforms allow for a witness to sign a separate copy of the same document).

Witnesses are generally required as part of the process stated in the Regulations to endorse the document by specifying how the document was witnessed. An example is provided below:

“I, [name] attest that this document was signed in counterpart and witnessed by me by audio visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

What is an audio visual link?

The Regulations do not state any particular type of software or manner of link which must be used. The Regulations simply provide that an audio visual link includes “facilities (including closed-circuit television) that enable audio and visual communication between persons at different places”.

How does this affect you?

Many of these changes will be welcomed by those who are required to arrange for execution and witnessing of documents in light of current social distancing requirements. The Regulations will assist in confirming a number of common practices surrounding how electronic signatures are exchanged in contracts and deeds, as well as creating clearer avenues for the remote execution and witnessing of statutory declarations, powers of attorney and wills.

Holding Redlich remains ready to assist its clients through this COVID-19 pandemic. If you have any questions in relation to signing or witnessing documents via electronic means, please contact us.

Authors:  Scott Schlink & Luke Hooper

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Scott Schlink

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