By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group
Whilst there have been leaps and bounds in recent years when it comes to the merging of law and technology, properly executing legal documents has escaped this evolution. Even though NSW and some other states have an Electronic Transactions Act, this does not assist with present difficulties imposed with executing Deeds and other formal documents during self-isolation. Whilst Zoom, Skype and FaceTime can make it seem like you are in the same room as someone else, ultimately the law is clear – this technology cannot replicate the requirements needed for the valid witnessing of formal documents. These requirements include that a witness must be physically present when the document is signed.
But what if you are locked down in self-isolation?
Until the COVID-19 pandemic, this had not really been a pressing issue. But with the Australian Government advocating for more people to work from home and for people generally to self-isolate, what happens to the requirements for witnesses to be physically present to witness a document being signed?
There is not yet a clear answer but one may be coming. The NSW Government recently passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), which amends the Electronic Transactions Act 2000 (NSW) to permitregulations under certain Acts (including the Conveyancing Act 1919 (NSW)) to provide for ‘altered arrangements for witnessing signatures, including requirements for certification of certain matters by witnesses and verification of identity’. Unfortunately at this early stage no regulations have as yet been made pursuant to these new powers.
For those in quarantine or self-isolation, the legal requirements for the witnessing of documents could mean a delay in the signing of documents during this period, and for transactions where time is of the essence, this could potentially be quite problematic. Given the possibility of regulations being made however, hopefully there will be some assistance for isolated contractors to enter legal arrangements.
Whilst these requirements may change or evolve in the coming days and weeks to account for the difficulties presented by COVID-19, presently the requirements for witnessing signatures remain unaltered.
