Victoria’s electronic execution and remote witnessing provisions: your questions answered

By Kathryn Howard, Ben Hamilton and Jennifer Butler

What changes have been introduced into Victoria?

The Victorian Government has recently made many of the temporary processes and procedures implemented in response to COVID-19 permanent, with the commencement of the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (Act).

Which documents does the legislation apply to?

The Act applies to:

• deeds;
• mortgages;
• transactions (including contracts and agreements);
• affidavits;
• statutory declarations;
• powers of attorney; and
• Wills (including codicils).

What is permitted under the legislation?

The Act allows for:

• electronic signing of deeds and mortgages by individuals;
• remote witnessing of electronic transactions (including contracts and agreements);
• electronic signing and remote witnessing of powers of attorney, Wills, affidavits and statutory declarations; and
• split execution of documents.

Electronic execution and remote witnessing requirements

The Act provides for strict requirements that must be met, including:

• the recipient’s consent must be obtained for an electronic signature to be used;
• the witness must observe the electronic signing, by some form of audio visual means;
• the witness must be reasonably satisfied that the document they sign is the same document;
• all requirements for witnessing must occur on the same day; and
• the witness must include a statement on the document that all requirements have been met.

For most, but not all, documents there is no requirement for all participants to be physically located within Victoria.

Particular and very stringent requirements apply to certain documents, including affidavits, statutory declarations and Wills.

What is not permitted?

The Act does not permit remote certification of documents.

Judicial doubt persists as to whether execution of documents by companies under section 127 of the Corporations Act 2001 (Cth) can be done electronically. The Senate has adjourned, until August 2021, debate on the Bill that would have extended the temporary measures enabling the electronic execution of documents with ‘split execution’ under section 127.

As a result, we have returned to the pre COVID-19 relief position regarding electronic execution by companies.  We therefore recommend that, for now, these documents be signed using a ‘wet ink’ signature on the same document by two directors (or a director and company secretary).

Warning!

While remote execution continues to be permitted in Victoria, the requirements imposed for the execution of each document type are specific and strict.

In addition, as noted above, care must be exercised when corporations are involved. Advice should be sought if the provisions of this Act are to be relied on in the case of execution of a document by a corporation.

We therefore recommend that remote execution only be used as a last resort. If a document can be executed with wet ink signature and witnessed in-person, this is the best option.

Hall & Wilcox has extensive experience advising on electronic document execution issues. For more information, please contact us.

This article was written with the assistance of Eliza Venville, Legal Excellence & Risk Paralegal.