Witnessing a document electronically

•23 April 2022

The New South Wales Government has made amendments to the Electronic Transactions Act 2000 and the associated regulations in response to the COVID-19 pandemic.

The amendments allow for a number of documents to be witnessed employing audio visual link in NSW. Previously, when witnessing the signing or execution of a document, the person signing the document and the witness had to be physically present with each other. The witness was required to see the signature or execution of the document physically.

The law now allows for the person witnessing the signature of the document to witness the signature by audio visual link and then confirm that they have witnessed the document as soon as reasonably possible.

What documents can be witnessed by audio visual link?

The regulation includes the following documents:

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
a statutory declaration

What is an audio visual link?

The regulation defines an audio visual link as a technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.

How does a witness go about electronically witnessing a document?

The regulation sets out the steps a person must take to witness a document electronically.

These steps include:

observing the person (the signatory) signing the document in real time; and
confirming that the signature was witnessed by the witness signing the document or a copy of the document; and
being reasonably satisfied that the document the witness signs is the same document or a copy of the same document which was signed by the signatory; and
stating on the document or the copy of the document that the document was signed and witnessed using audio visual means and that is was witnessed in accordance with the Electronic Transactions Regulation 2017.