Among the many significant social and economic consequences of the COVID‑19 pandemic, restrictions on interstate travel and movement have made it more difficult for documents to be witnessed. In response to this, all Australian jurisdictions have taken steps to allow for at least some kinds of document to be witnessed via audio‑visual link, eliminating the need for both the signatory and witness to be physically present in the same place at the time of signing.
Remote witnessing provisions
All Australian States and Territories currently have provisions in place allowing for documents to be remotely witnessed.[1] At the Commonwealth level, legislation allows responsible ministers to make a determination to vary provisions of any Act or instrument.[2] Such a determination has been made for statutory declarations and notices of intention to marry, but not for affidavits or other documents.[3] The Federal Courts have each published material dealing with the impact of COVID‑19 on signing documents and affidavits.[4]
The applicable law will vary depending on the nature of the document and the manner in which it is to be used. For example, a remotely-witnessed will must be witnessed in accordance with the law of the place in which it is made by the testator, while a remotely-witnessed affidavit must be witnessed in accordance with the law of the jurisdiction in which it is to be filed.
The remote witnessing provisions across jurisdictions all possess the following common features:
While there is a common thread across all jurisdictions of allowing remote witnessing of some documents, there is a lack of uniformity between jurisdictions as to which documents may be remotely witnessed. For example, in South Australia, only affidavits may be witnessed by AV link, whereas wills and statutory declarations may not; while in New South Wales a range of documents, including wills, powers of attorney, deeds or agreements, enduring guardianship appointments, affidavits (including annexures or exhibits), and statutory declarations may be remotely witnessed.
Practice
In practice, remote witnessing of documents is likely to occur in one of three ways. In all cases, the witness will observe the signatory sign the document, and then may (i) arrange for the original signed document to be provided to the witness to be signed; or (ii) arrange for the signatory to scan the signed document and electronically send to the witness to be signed; or (iii) immediately countersign a copy of the document, arrange for the original document signed by the signatory to be provided to the witness, and collate the two. For example, an affidavit to be filed in a South Australian Court that was witnessed using method (iii) above might contain the wording “This affidavit was signed in counterpart and witnessed over audio visual link in accordance with the Code of Practice – Affidavits published by the Attorney-General under section 33 of the Oaths Act 1936 (SA) and commencing 1 December 2021.”.
Case law
To date, case law dealing with the validity of remotely witnessed documents is sparse.[5] In Re Sheehan [2021] QSC 89, the Court was required to determine an application for grant of probate of a will witnessed under the then current Queensland regulations.[6] The testator omitted to sign one page of the will as well as an accompanying schedule. While there was no requirement under the Succession Act 1981 (Qld) that all pages be signed, there was such a requirement under the remote witnessing regulations, and accordingly the will was not executed in accordance with formal requirements. In the result, the Court granted probate, but the fact that the application was required in the first place is a stark illustration of the need to ensure that a document is witnessed not just in accordance with the ordinary requirements of documents of its type, but also in accordance with the specific requirements of the applicable remote witnessing regime.
Remote witnessing: the future
Remote witnessing provisions were introduced to deal with the disruption to movement caused by COVID‑19, and were initially expressed as being temporary. While some jurisdictions have amended their legislation to make the provisions permanent,[7] others have allowed the provisions to remain temporary. For example, the Code of Practice – Affidavits published by the South Australian Attorney‑General’s Department is intended as an interim code until such time as long term changes to the procedure for remote witnessing of affidavits can be consulted on and gazetted. Similarly, the Western Australian provisions governing remote witnessing were originally intended to cease to have effect at the end of 31 December 2021, but this cessation was postponed until the end of 31 December 2022.[8] The temporary nature of some provisions, and the presence in legislation of expiry dates, means that it is essential to confirm the correct current position before remotely witnessing any document.
While the implementation of remote witnessing schemes was prompted by the COVID‑19 pandemic, those schemes reflect a growing recognition at law of the benefits of dealing with evidence and documents electronically and remotely. Legislation already provides for electronic signing of documents, and witnesses frequently give evidence in court proceedings using audio‑visual links. Provided that adequate steps are taken to verify the identity of the signatory and content of the document being signed, there is no reason why remote witnessing of documents should not remain a permanent feature of Australian law once the COVID‑19 pandemic recedes.
[1] COVID‑19 Emergency Response Act 2020 (ACT) s 4; Electronics Transactions Act 2000 (NSW) ss 14F and 14G; Oaths, Affidavits and Declarations Act 2010 (NT) s 28A; COVID-19 Emergency Response Act 2020 (Qld) s 9 under which numerous regulations were made, including the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 (Qld). On 30 April 2022, the Act and temporary regulations will be replaced by a new Part 6A of the Oaths Act 1867 (Qld); Oaths Act 1936 (SA) s 33(1)(b); Attorney General’s Department Code of Practice – Affidavits; COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) s 17 and Notice 12/2021 under s 17; Oaths and Affirmations Act 2018 (Vic) ss 25, 27, 28B, 30, 30A and 30B; COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) ss 22 and 23.
[2] Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020 (Cth) sch 5.
[3] Coronavirus Economic Response Package (Modifications—Statutory Declarations and Notices of Intention to Marry) Determination 2021.
[4] Federal Court of Australia Special Measures in Response to COVID‑19 (SMIN‑1) updated 31 March 2020; Federal Circuit and Family Court of Australia Practice Direction COVID-19 Special Measures (PD‑COVID) re‑issued 7 September 2021.
[5] See brief discussion in Khmer Buddhist Temple Association Inc v Chhet (No 2) [2021] VSC 418 at [114]; Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169 at [28].
[6] Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld) made pursuant to COVID-19 Emergency Response Act 2020 (Qld) s 9.
[7] For example, New South Wales and Victoria.
[8] COVID‑19 Response and Economic Recovery Omnibus Act 2020 Postponement Proclamation 2021 extending the operation of Part 2 Div 4 of the Act pursuant to s 27: WA Government Gazette 3 December 2021, 5290.
