Electronic Witnessing of Statutory Declarations in Australia
Statutory declarations are an integral part of legal and administrative processes in Australia.
They allow individuals to make formal declarations for matters such as identity verification, affirming the truthfulness of information, or for various other legal purposes. Traditionally, these documents have required in-person witnessing.
However, with advances in technology and the increasing demand for remote legal services, electronic witnessing of statutory declarations has become more relevant.
This article provides an overview of the current legal framework surrounding electronic witnessing in Australia, along with practical methods for achieving legally compliant remote witnessing via live audio-visual link.
Current Status of Electronic Witnessing of Statutory Declarations in Australia
Since the COVID-19 pandemic, governments across Australia have introduced temporary and permanent reforms to allow for the electronic witnessing of legal documents, including statutory declarations.
These reforms were initially enacted as emergency measures to facilitate social distancing and reduce the need for in-person interactions. However, some jurisdictions have since made these changes permanent or have extended the emergency provisions.
The key changes to the witnessing of statutory declarations via electronic means involve:
- Electronic Signatures: Many states and territories now allow statutory declarations to be signed electronically, provided that the signatory uses a secure method to execute their signature.
- Remote Witnessing: Witnessing a statutory declaration through live audio-visual links is permitted in several jurisdictions, provided that specific legal requirements are met.
- Legislation Varies by State and Territory: Each state and territory has its own legislation governing the use of electronic signatures and remote witnessing for statutory declarations. It is important to be aware of the specific rules that apply in your jurisdiction.
How to Legally Witness a Statutory Declaration Remotely via Live Audio-Visual Link
Witnessing statutory declarations remotely using live audio-visual technology (such as Zoom or Microsoft Teams) has become more commonplace in Australia.
However, to ensure the legal validity of the declaration, certain procedures must be followed.
1. Confirm Jurisdictional Requirements
As the laws for electronic witnessing of statutory declarations differ between states and territories, you must first check whether remote witnessing is allowed where you are.
The the federal government permits the remote witnessing of statutory declarations, as do most states and territories, but the specific conditions and requirements vary.
2. Use Approved Technology
A live audio-visual link means that both the declarant (the person making the declaration) and the witness must be able to see and hear each other in real-time. Technologies like Zoom, Microsoft Teams, or other approved secure communication platforms are commonly used for this purpose.
It is important for the link to be of good quality, for both camera and sound, and most built in cameras for laptops, tablets and smart phones are sufficient, so long as you have a good internet connection.
3. Witnessing Process
The witnessing of a statutory declaration remotely must follow specific steps:
- Real-time Communication: The witness must watch the declarant sign the document electronically or physically (by scanning a signed document) in real-time.
- Identify the Declarant: The witness should confirm the identity of the declarant, ensuring that the person making the declaration is the same as the person who is providing the statement. This can involve showing photo identification through the video link, or undertaking a separate verification of identity process.
- Confirmation of Signed Document: After the declarant signs the document, the signed copy must be sent to the witness physically, if signed in hard copy, or vis email, if electronically signed and shared through secure means.
The potential to use an entirely electronic witnessing, or use hard copy ‘wet’ signing is often determined by the lender who has requested the declaration be provided.
So whilst it may be entirely lawful to sign the declaration electronically, the lender may still request a ‘wet’ signed declaration.
4. The Witness’s Role
The witness is responsible for signing the statutory declaration after they have observed the declarant sign it. Depending on the jurisdiction, this can be done:
- Electronically: The witness may add their electronic signature to the document.
- Physically: The witness may print and sign the document once they have received the scanned copy of the signed statutory declaration from the declarant.
5. Record-Keeping and Compliance
In some jurisdictions, the witness is required to keep a record of the remote witnessing process, including details about the live audio-visual session, to ensure transparency and compliance with local laws.
This may include the date, time, and technology used, as well as confirmation of the identity of the declarant.
Legislation by State and Territory
- Queensland: In Queensland, the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 allows for remote witnessing of statutory declarations via live audio-visual link.
- New South Wales: NSW has enacted permanent reforms under the Electronic Transactions Amendment (Remote Witnessing) Act 2021, which permits remote witnessing of statutory declarations.
- Victoria: Victoria’s Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 includes provisions for remote witnessing.
- Western Australia: The Emergency Management Amendment (COVID-19 Response) Act 2020 permits temporary remote witnessing measures, although some may become permanent.
- South Australia, Tasmania, ACT, and Northern Territory: Similar provisions are in place, with some jurisdictions extending temporary measures while others are still reviewing the permanency of such changes.
The area of remote and electronic witnessing is changing, so its important to check the current status of the law as it relates to your State or Territory at the time of witnessing.
Conclusion
The ability to electronically witness statutory declarations via live audio-visual link has revolutionised the way legal documents are executed in Australia.
By following the steps outlined above and complying with local legislation, remote witnessing can provide a convenient and secure way to execute statutory declarations in the modern era.
At ILA Australia, we provide all our advice online and remotely (this is always permitted).
We then work with you, and the lender to ensure that thy receive the required statutory declarations, in the format they will accept, whether it is entirely electronic or in hard copy wet signed.
If you are unsure about witnessing or executing statutory declarations remotely, contact ILA Australia for assistance.
