COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic)
The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (the Regulations) commenced in full on 12 May 2020. The Regulations have been made under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (the Act) and temporarily modify certain Acts to provide for the electronic signing of documents and the witnessing of the signing of documents via audio visual link.
This training brochure applies to all organisations in Victoria.
Electronic Transactions (Victoria) Act
Section 7 of the Electronic Transactions (Victoria) Act 2000 (Vic) (the ET Act) provides for the validity of transactions that take place in whole or in part by means of an electronic communication. The Regulations have modified section 7 to provide that such transactions include remote witnessing, where a person uses an audio visual link to observe the writing of another person’s signature. Significantly, in such transactions where a witness writes their signature signifying they have observed something and that observation is done via audio visual link, the witness must also write a statement accompanying their signature indicating that the observation was made using an audio visual link in accordance with the Regulations.
Section 9 of the ET Act provides the conditions for the requirement for a signature to be met via electronic means. A method that identifies the person and their intention regarding the information communicated must be used, with that method proven to be reliable in all the circumstances including in relation to any relevant agreement. The person requiring the signature must also consent to the requirement being met by that method. The Regulations have modified section 9 of the ET Act to provide that proposing to use a method to sign a document electronically will not of itself be sufficient reason to refuse to give the consent required. Under the modified section 9, every person whose signature is required, or consent is required is to receive every copy of the document on which a signature appears. Importantly, under the modifications, the fact that some of the signatures appear on only some of the copies of the document, or there is a copy on which the signatures do not all appear, or there is a copy with no signatures, does not prevent the requirements of section 9 of the ET Act from being met.
Oaths and Affirmations Act
The Regulations have modified the Oaths and Affirmations Act 2018 (Vic) (the OA Act) to allow for the declaration and witnessing of a statutory declaration to be made via audio visual link. The person making the statutory declaration must fulfil the requirements of section 30(3) of the OA Act (Statutory declarations made in Victoria) whilst that person and the witness are before each other via audio visual link, with the witness observing. All copies and alterations must also be made with the witness in observance, with the person making the declaration writing a statement that the copies are true and correct and the requirements of the Regulations have been met. All documents will then be transmitted to the witness. The signing and certifying of any documentation by the witness must also be with the person making the declaration being present via audio visual link. The witness is required to write a statement indicating that the statutory declaration was witnessed using an audio visual link in accordance with the Regulations.
Where under section 32 of the OA Act, a person assists another person to make a statutory declaration, the Regulations have modified this to allow the assistance to occur via audio visual link.
Any requirements under sections 30 and 32 of the OA Act for signatures, initials, dating or writing is to be read as being fulfilled if done by electronic means.
Powers of Attorney Act
The Regulations have modified the Powers of Attorney Act 2014 (Vic) (the POA Act) so that a reference to a person signing a POA in the presence and at the direction of the principal may be read as including the signing and direction being made via audio visual link. A person who witnesses the signing of a POA may also be present via audio visual link. Each remote witness must sign one copy and include a statement that the witnessing occurred using an audio visual link in accordance with the Regulations. There will be only one copy of the POA with the signature of both witnesses, which is to be transmitted to the person who signed at the principal’s direction. That person is required to write on that copy that it is a true copy, that the conditions of the Regulations have been met, then sign and date the copy. All of the requirements under the Regulations must be undertaken on the same day.
Other sections of the POA Act that have been modified to permit the use of an audio visual link include the following:
- sections 37 and 38 which provide for the requirements for witnessing a statement of acceptance;
- section 46 which provides for execution of an instrument of revocation;
- section 95 which provides for executing a supportive attorney appointment;
- section 99 which provides for witnessing the acceptance by a supportive attorney;
- section 100 which provides for witnessing the acceptance by an alternative attorney;
- section 105 which provides for witnessing the execution of a form of revocation.
Lastly, the Regulations have modified the requirements under sections 7, 10 and 15(3) of the Wills Act 1997 (Vic) to allow a signature under those sections to be made electronically. In addition, the witnessing of a will by persons being present as required under section 7 has been modified to include being present via audio visual link.
The requirements for evoking a will under section 12, and altering a will under section 15 have also been modified to allow for the use of an audio visual link to complete those actions.
All organisations should update their procedures in relation to the modifications to allow for electronic signing a witnessing of documents as discussed above and as outlined in the VIC – Electronic Transactions topic.
For further information please contact the Law Compliance team:
Phone: 1300 862 667