Almost a month after passing legislation authorising the making of regulations to allow for the remote witnessing of documents, the NSW Goivenrment has finally made those regulations.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 were published today. They provide that documents that require a witness may be witnessed by audio visual link, and that tasks in relation to witnessing a document may be performed by audio visual link. This includes the requirements under the Oaths Act 1900 to see the face of the signatory.
A person witnessing the signing of a document by audio visual link must observe the signatory sign the document in real time, and must attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document (and in doing so must be reasonably satisfied the document the witness signs is the same document, or a copy of the document, signed by the signatory). This may be achieved by the witness signing a counterpart of the document as soon as practicable after witnessing the signing of the document, or by countersigning a copy of the document signed by the signatury which is then scanned and emailed to the witness as soon as practicable after witnessing the signing of the document
The witness must also endorse the document, or the copy of the document, with a statement specifying the method used to witness the signature of the signatory, and that the document was witnessed in accordance with this Regulation. It will be sufficient for this purpose to say “This document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017“.