COVID-19 and temporary updates to electronic signing

We have previously written about the current rules and uncertainties impacting electronic signing. State and Federal governments are now in the process of passing temporary laws to address issues relating to the signing and attesting of documents. The overall aim of these measures is to provide specific relief by way of modification or exemption to certain requirements of document preparation, signing and witnessing. However, the rules are not uniform across jurisdictions and you will need to consider both which laws govern the document to be executed and where that document is actually executed to determine the applicable rules. 

At the time of publishing this article only a couple of jurisdictions have released updated rules. We will provide another update once more jurisdictions have passed new regulations.

COVID-19 legislative changes

Federal, NSW, Victoria, Queensland, Tasmania and South Australia have now all passed legislation providing for certain decision makers to make regulations modifying arrangements for the signature, witnessing and attestation of documents, and in some jurisdictions, the format of the document and process by which a document is issued, certified and filed (COVID Regulations). We expect that all Australian jurisdictions will soon follow suit.

NSW has not only passed the laws providing for the power to make such new rules but also regulations setting out rules. These rules commenced on 22 April 2020 and expire six months after their commencement unless Parliament determines an earlier date.

Witnessing and attestation by audio visual link

The NSW regulations provide that witnessing, and arrangements in relation to witnessing and attestation of, a document can now be undertaken through an audio visual link where the document is required to be witnessed under NSW law. 

The types of document this applies to include a will, a power of attorney or an enduring power of attorney, a deed or agreement, an enduring guardianship appointment, an affidavit, including an annexure or exhibit to the affidavit, and a statutory declaration.

An audio visual link must be technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing. This would include platforms where both the audio and visual aspects of the platform are switched on, such as BlueJeans, Zoom, FaceTime, Skype or Microsoft Teams. 

If using audio visual technology to witness a document under the NSW regulations, the following steps must be implemented:

1. observe the signatory sign the document in real time;
   
   
2. attest or otherwise confirm the signature was witnessed by signing the document or a copy;
   
   
3. be reasonably satisfied the document the witness signs is the same document, or a copy of the document;
   
   
4. 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 the NSW COVID Regulations, such as:

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.

This effectively means a witness may sign a counterpart of the document, or if the signatory scans and sends the witness a copy of the signed document electronically, by countersigning that document. 

However, this does not alleviate the uncertainties of a company executing a deed electronically, under section 127 of the Corporations Act, or with split execution. However, an individual attorney appointed by a company under deed, may execute deeds electronically in NSW to assign, convey or dispose of property provided the individual attorney’s electronic execution is witnessed and is otherwise in accordance with the Conveyancing Act 1919 (NSW). 

Documents that can and can’t be electronically signed

Set out below is a list of some common types of documents that can and can’t be signed electronically based on the Electronic Transactions Acts, the common law and practicalities associated with that type of document (e.g. stamping or registration) which is an update to our prior article and current as at 9am on 27 April 2020. This is a high level summary only and the consideration of whether a particular document can be signed electronically needs to be carefully made on a case by case basis. 

Document	Electronic execution
Agreements
Agreements, other than as excluded by the Electronic Transaction Acts	Yes
Deeds
Under QLD, VIC, SA, TAS, WA, ACT & NT law	No, however this position may shortly change.
Under NSW law & executed in NSW	Until 22 October 2020 (or until Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) is no longer in force): yes for individuals; yes for an individual appointed by a Company under a power of attorney, where their execution is in accordance with the Conveyancing Act 1919 (NSW) and that Act applies to the transaction (see commentary above).   Otherwise yes, but not recommended. The Conveyancing Act 1919 (NSW) expressly permits a deed to be in electronic form and signed electronically by an individual (including an individual attorney signing for a company). However the general rule still applies that a witness must be physically present and must sign the same document at the same time as the signatory. This means that the two parties must be co-located when their signatures are electronically applied.
Property documents
Mortgage	While ordinarily registries will not accept an electronic signature on a paper document, the recent COVID Regulations amends the position on a jurisdiction by jurisdiction basis.  Care must be taken to ensure that the individual jurisdiction requirements are met, or that the mortgage is electronically transacted through PEXA.
Loan agreement	Yes, however, where there is an associated consumer guarantee, a hard copy of the Loan Agreement must be sent to the guarantor. The Loan Agreement may still be signed electronically (assuming there is no consumer guarantee contained within the Loan Agreement itself) provided your lender will accept electronic execution.
Documents relating to dealings with land	Obtain specific advice relevant to your jurisdiction.
Security documents
Guarantee	No, consumer guarantees must be signed with a wet-ink signature.
Trust Deed	Whether an electronic signature will suffice will depend on whether the trust deed falls within the COVID Regulations.
General security agreement	No, these are generally executed as deeds, and are executed pursuant to Commonwealth legislation and not State legislation.
Commercial documents
Powers of Attorney	Depends on the jurisdiction of the power of attorney. Generally speaking a power of attorney will need to be signed with wet ink, unless it is a power of attorney which can be executed under an existing power of attorney.
Purchase contract	Yes, provided it is not executed as a deed. For deeds, refer to comments above.
Court documents
Affidavits and statutory declarations	Currently, in NSW, affidavits and statutory declarations may be signed electronically and sworn over audio visual link under the COVID Regulations. However, requirements differ in jurisdictions and specific advice should be obtained on each document.

*Note: Registration and lodgement requirements for conveyancing documents is a complex area and can differ depending on the type of document and local requirements. It is therefore advisable to obtain specific advice on each document.

Even if an electronic signature is legally enforceable, it is prudent to check whether the document will be accepted by your counterparty, government agency, court or bank.