Requirements to self-isolate, quarantine and social-distance in response to the COVID-19 pandemic have made the physical signing of documents (and witnessing of such signatures) impractical, if not impossible, in many cases. This has led to some significant short-term legislative reform.
The Victorian and New South Wales Governments instituted special new measures which allow documents such as deeds, wills and powers of attorney to be signed electronically and witnessed remotely using audio-visual technology. These measures have been extended with the possibility of them becoming permanent.
The South Australian government introduced the COVID-19 Emergency Response Act 2020 (SA) which empowers the Governor to suspend or modify any requirements relating to the preparation, signing, witnessing, attestation, certification, stamping or other treatment of any document in response to COVID-19. The classes of persons who may witness statutory declarations were also extended to include police officers, full-time teachers, accountants, engineers and health practitioners. However, witnesses are still required to be physically present.
What is an electronic signature?
An electronic signature is a visible representation of a person’s name, initials or associated mark, which is placed on a document by electronic means. Examples of electronic signatures include:
- pasting a scanned version of a handwritten signature into an electronic document;
- typing a name into an electronic document;
- drawing a signature on an electronic document using a mouse, touch screen or stylus; or
- using a digital signing platform (eg. DocuSign).
Are electronic signatures binding?
Under the Electronic Communications Act 2000 (SA) and the Electronic Transactions Act 1999 (Cth), electronic signatures are considered to be legally binding if:
- a method is used to identify the person signing and their intention to accept or adopt the document;
- the method was as reliable as appropriate for the purpose of the document, in light of all the circumstances; and
- the receiving party consents to the use of an electronic signature.
Electronic signatures cannot be used for:
- Transactions under the Corporations Act 2001 (Cth); or
- Documents requiring a witness to be physically present at the signing of the document (eg. Wills, Powers of Attorneys, Affidavits, Statutory Declarations, etc).
What type of document can be signed electronically?
As contracts can be verbal or written, individuals and companies have some flexibility when it comes to signing contracts using electronic signatures.
South Australian Courts generally accept electronic signatures but affidavits are still required to be signed and witnessed in person, with appropriate safety precautions in place. However, if for health or logistical reasons this is not possible, a solicitor should exhibit the deponent’s unsworn affidavit to his/her affidavit with an undertaking to file the sworn original once it is possible to have it sworn.
There are legal requirements for deeds to be in writing and witnessed, which may not be able to be satisfied by electronic signatures. It is therefore recommended that deeds are not executed electronically. If it is not possible to sign and witness the execution of a deed in person, we recommend you seek legal advice before applying an electronic signature on a deed as there are risks that the deed would not be valid.
COVID-19 has made many of us re-think and re-imagine how technology can assist in enabling documents to be executed while social distancing or in isolation. In South Australia, electronic signatures are generally accepted unless a witness is required to be present. NSW and Victoria have already moved towards remote witnessing using audio-visual technology. Depending on the success of our Eastern state counterparts, South Australia may follow suit. Some of these changes may remain to assist vulnerable or remote people long after the pandemic.
While we at Hume Taylor & Co endeavour to accommodate face-to-face witnessing where it is safe to do so, there are a number of situations where face-to-face contact would not be appropriate in the current climate. In those circumstances, our team will endeavour to work out a solution.