Virtual Witnessing and Electronic Documents

Best Hooper
1 June 2020

Due to the ongoing challenges presented by the COVID-19 pandemic, some of the requirements under the Oaths and Affirmations Act 2018 (the Act) have been amended by the Victorian Parliament by the introduction of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) which will remain in place until 12 November 2020. Under the Regulations, it is acceptable to use electronic signatures on Deeds, Statutory Declarations, Affidavits, Powers of Attorney and Wills by being in the “presence” of an authorised witness by audio visual link and treating electronic documents as originals.

The Regulations allow documents that contain an electronic signature to be treated as though it were ordinarily written, so long as those signing have their identity verified by a witness and written consent to apply an electronic signature is obtained. An audio visual link must also be used where a witness is required to review a signature for documents to be validly executed under the Regulations.

For remote witnessing to be validly completed, it requires that the witness: –

1. Observe signing of documents via audio visual link;
2. Do all things as usually required under the Act, while appearing via audio visual link;
3. Write their signature (via electronic means or otherwise); and
4. Include a statement that the witnessing took place via audio visual link under the Regulations.

The Regulations also allow for documents required to be signed by multiple people, to be signed individually under the above requirements. However, the document will only be considered as validly executed upon completion of all parties signing and once a fully executed version is provided to all parties. Electronic circulation is permitted.

Through the introduction of the Regulations, social distancing can now be maintained when making usual attendances that would ordinarily be done in person.