The COVID-19 Omnibus (Emergency Measures) Act 2020 introduced temporary changes to legislation across many areas to address or reduce the impact of the Corona Virus pandemic.

One of these changes, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into effect on 12 May 2020. The Regulations will expire on 24 October 2020.  The Regulations govern the signing and execution and witnessing, of legal documents including deeds, contracts, wills, powers of attorney and other documents.

The Regulations provide for temporary changes that:

• Expand those documents that may be Electronically signed; and
• Permit remote witnessing of documents.

Electronic Signing

Method of electronic signing

The Regulations extend those documents that can be signed electronically by amending the Electronic Transactions (Victoria) Act 2000.   (“Electronically” includes a person typing their name in an email or word document, or using a digitised image of their physical signature.  This is not the same as a “digital signature” which is cryptographic authentication technology).

Broadly, the ETA permits documents to be signed electronically provided that:

• a method is used to identify the person and to indicate the person’s intention;
• the method is as reliable as it is appropriate; and
• the person receiving the signature consents to it being provided by use of the method.

Mortgages And Deeds

Prior to the Regulations, deeds and mortgages were not captured by the ETA and so could not be signed electronically.

A deed is a formal document that is subject to an antiquated provision that it must be on “parchment vellum or paper”. The ETA did not remove this requirement and so a deed was arguably not able to be signed electronically under the provisions of the ETA.

The regulations amend the ETA by expressly permitting deeds to be electronically signed.

A mortgage is an example of a document that requires registration to be enforceable. Often documents requiring registration would not be accepted for registration unless in writing, and in the case of a mortgage, a bank and/or the land title office would not accept a mortgage even if validly electronically signed.

The regulations amend the ETA by expressly permitting mortgages to be electronically signed.

Wills and Powers of Attorney

These documents may, if desired, be signed electronically under the Regulations.

If signed electronically a statement must accompany the signature.  The following would satisfy this:

“This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

Witnessing of Documents

Many documents, including deeds, mortgages, Wills and Powers of Attorney, are required to be witnessed.  The Regulations ease some of the requirements for witnessing of documents.

Included in these provisions are:

• Deeds are not required to be witnessed.
• Many other documents, including Wills and Powers of Attorney, may be witnessed remotely.

Production of Document

A document is witnessed by signing it before the witness and producing it to the witness.  Pursuant to the ETA, a document may be produced electronically for this purpose.

Witnessing document

A document may be witnessed remotely providing that:

• The witness uses an audio visual link to observe the signing; and
• The witness writes a statement accompanying their signature that indicates that the witnessing occurred by audio visual link in accordance with the Regulations.

For example, the following would satisfy this:

“I, [name] attest that this document was signed in counterpart and witnessed by me by audio visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

Take home message

1.  Deeds, mortgages, Wills and Powers of Attorney may be signed electronically
2. Remote witnessing may occur provided there is an audio visual link and the witness signature is accompanied by the confirmatory statement.