Witnessing Documents in the COVID-19 Environment

Written by Tahnee Watson, Senior Associate

On 11 August 2020, the COVID-19 Response and Economic Recovery Omnibus Bill 2020 was introduced in the Parliament of Western Australia.

The aim of the Bill is to deliver measures that will facilitate business continuity in the COVID-19 environment, and to enable aspects of the economic recovery from the current crisis.

One of the problems that the Bill seeks to overcome is the difficulty for members of the public to sign documents in the presence of a witness, which has arisen because of the social distancing measures put in place in response to COVID-19.

The Bill seeks to overcome this issue by allowing for witnessing by audio-visual communication in some circumstances.

How is a document witnessed by audio-visual communication?

The Bill provides that you may sign in the presence of a witness by audio-visual communication if:

  1. you and the witness are able to see and hear each other; and
  2. the witness observes you signing the document.

For example, if you are making a statutory declaration, you will be considered to be “before a witness” if, when you make the declaration, you and the witness are connected using audio-visual communication (for example, on Microsoft Teams) and can see and hear each other, and the witness observes you making the declaration.

Any requirement upon a witness to sign a document will then be met if the witness:

  1. is satisfied what he or she is signing is the document (or a counterpart or copy of it) signed by you;
  2. signs the document (or a counterpart or copy of it); and
  3. writes a statement to say the document (or a counterpart or copy of it) was dealt with under the relevant provision.

What documents may be witnessed by audio-visual communication?

 The ability to witness documents by audio-visual communication only applies to a specific list of documents.

Some examples of the legislation where witnessing by audio-visual communication will be permitted include:

Importantly, the Bill does not allow witnessing by audio-visual communication for wills or enduring powers of attorney. This means that, if you are executing a will, you will be required to execute it in person before two adult people in the usual way.

The changes are set to expire, or “sunset”, on 31 December 2021, unless extended by the Governor.

The status of the Bill

 At the time of writing this article, the Bill is expected to come into operation shortly, having been before the Legislative Council Committee of the Whole on 20 August 2020.

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