Execution and witnessing in a COVID world

James Creevy, current as of: 1 September 2020.

This table has been superceeded by an updated version.

State and Federal governments have passed temporary laws relating to the execution and witnessing of documents, namely Deeds and Statutory Declarations, in response to the challenges created by COVID-19.

The following information provides both a snapshot of the changes in various jurisdictions and guidance on where to find further information.

JurisdictionExecution of deedsWitnessing of deedsStatutory declarationsRelevant legislation
Commonwealth

In accordance with Section 127 of the Corporations Act, a company may execute a document without a common seal if each person specified in paragraphs 127(1)(a), (b) or (c) signs a true copy or counterpart of that document.

In terms of electronic execution, there is no definitive answer as to whether the Determination permits electronic execution of deeds due to the paper, parchment and vellum requirement for deeds.

N/A

N/A

Corporations (Coronavirus Economic Response) Determination (No.1) 2020 (Cth) Section 6 (in relation to subsection 127(1) of the Corporations Act)

Queensland

Deeds may be an electronic document and may be electronically signed. The parties to the deed may execute a true copy or counterpart of the deed. It is no longer a compulsory requirement for a company to affix its common seal when executing a deed.

An instrument that is to have effect as a deed may be signed in accordance with Division 2 of the Regulation whether or not in the presence of a witness.

Statutory declarations may be an electronic document and may be electronically signed.

Statutory declarations can be witnessed via audio visual link by a special witness.

A special witness is defined in Section 5, Part 1 of the Regulation.

Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Amendment Regulation 2020 (Qld) Section 12S

COVID-19 Emergency Response Act 2020 (Qld)

Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 (in relation to the Oaths Act 1867, Property Law Act 1974)

New South Wales

Deeds can be signed electronically.

A deed may be witnessed remotely by audio visual link. The witness must observe the person signing in real time, endorse the document, or copy of the document, specifying the method used to witness the signatory’s execution.

The signing of a statutory declaration may be witnessed remotely by audio visual link but it must be made before a person whom a statutory declaration may be made in accordance with the Statutory Declarations Act 1959 (Cth).

Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)

Clause 1(c)(f) (in relation to documents that may be witnessed remotely)

Clause 2 (in relation to Section 17(1)(b)(c) Electronic Transactions Act 2000 No 8)

Clause 4 (in relation to Section 17(1)(a) Electronic Transactions Act 2000 No 8)

Section 38A Conveyancing Act 1919

Victoria

Deeds can be signed electronically.

There is no requirement for deeds to be witnessed in Victoria.

Statutory declarations can be declared remotely however Section 30(3) of the Oaths and Affirmations Act must be abided by while the person and the statutory declaration witness are appearing before each other by audio visual link.

The witness must observe the doing of those things required by Section 30(3) of the Oaths and Affirmations Act 2018 (Vic).

Additional conditions are set out in Regulation 16.

COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic)

Regulation 16 (in relation to Section 30 Oaths and Affirmations Act 2018)

Regulation 17 (in relation to Section 30 Oaths and Affirmations Act 2018)

Electronic Transactions (Victoria) Act 2000

South Australia

There is currently no provision allowing deeds to be electronic documents or for signing to occur electronically.

A witness must be physically present to witness a document or to take any oath, affirmation or declaration in relation to a document.

Statutory declarations must be declared in person although the Regulation authorises a broader class of persons to take statutory declarations.

COVID-19 Emergency Response Act 2020 (SA)

COVID-19 Emergency Response (Section 16) Regulations 2020 (SA)

COVID-19 Emergency Response (Section 17) Regulations 2020 (SA)

ACT

N/A

A deed is not defined as a document that may have its signing witnessed remotely by audio visual link.

A statutory declaration has not been defined as a document that may be declared or witnessed remotely by audio visual link.

COVID-19 Emergency Response Act 2020 Section 4

COVID-19 Emergency Response Legislation Amendment Act 2020

At this stage, Tasmania, Western Australia and Northern Territory are yet to provide guidance or implement  measures to modify their requirements for the execution and witnessing of deeds and statutory declarations.

Important Note:  These changes are temporary – the majority of the State based legislative changes are due to cease in October, November or December of 2020 (varying from State to State). The Commonwealth changes regarding the Corporations Act were set to be repealed in November 2020 however there is speculation that this will be extended until March 2021. Please note these dates are subject to be extended or brought forward so please ensure care is taken to ensure that the relevant legislation is in force at the time you are relying on it. Prior to executing or witnessing a document, independent legal advice should be sought about your specific circumstances. Please also check that the document will be accepted by your bank, counterparty, government agency or Court.

Get in touch with our Legal Team if you have any queries. 

Acis does not provide advice in relation to taxation, duty, company law or any other matter. We do not purport to give advice nor should you construe anything in any correspondence with us or material provided by us as advice of any kind.