Witnessing legal documents remotely

Signatories and witnesses using the remote witnessing provisions may be outside NSW

• Signatories and witnesses using the remote witnessing provisions need not be physically present in NSW at the time of witnessing, as long as the relevant document is required to be signed under or is governed by NSW law.
• This would allow, for example, a person based overseas to have a document governed by NSW law witnessed by an authorised witness based in NSW.
• It would also allow a person based in NSW to have a document witnessed by an authorised witness, whether the witness is physically based in NSW or not.
• When the remote witnessing process is used, the location of execution is the place where the document was signed by the signatory.

The ‘original’ of a remotely witnessed document must contain every page or part of the document, and every signature, mark, or endorsement

• In some circumstances, a person may need to produce or retain the ‘original’ of a signed and witnessed document.
• The Electronic Transactions Act 2000 provides that the ‘original’ of a remotely witnessed document must be made up of:
  • each page or part of the document;
  • each signature or mark of the signatory and witnesses wherever required; and
  • the endorsement required by section 14G(2)(d) of the Electronic Transactions Act.

  Remote witnessing provisions do not permit certification of documents over AVL

  The remote witnessing provisions do not permit copies of documents to be certified remotely over AVL. Certifying a document as a true copy of the original must be done in person by an authorised witness.

  The remote witnessing scheme does not enable electronic signature

  The remote witnessing provisions do not enable documents to be electronically signed. Remotely witnessed documents may only be signed electronically by a signatory or witness where this is otherwise permitted by a NSW Act or law.

  Categories of witnesses for certain documents have been expanded

  Following legislative amendments in November 2021, Australian legal practitioners are permanently included in the categories of people authorised to witness written oaths, declarations or affidavits under section 26 of the Oaths Act.