By Alex Cordova (Associate at Butler McIntyre & Butler)
Overview
Face to face contact is critical for the fulfilment of the functions of Justices of the Peace who are required to witness legal documents and assist in the administration of justice. The COVID-19 pandemic forced States and Territories around Australia to take measures to limit face to face contact and at the same time enacted legislation that allows for the witnessing of documents virtually by Justices of the Peace.
Remote Witnessing in Tasmania
In 2020, Tasmania enacted legislation called COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (the Act). Amongst other things, section 17 of the Act provides that by Notice, a Minister could authorise for certain actions to be taken electronically.
On 22 September 2021, the former Premier, Mr Gutwein published a Notice in the Gazette (the Notice) in accordance with the Act to allow the making, taking or receiving, swearing, signing or witnessing the signing of affidavits, declarations or other documents to be completed by audio-visual link, limited to the following documents:
- statutory declarations (under section 14 of the Oaths Act 2001);
- an affidavit which is made in support of a warrant pursuant to Schedule 4 of Children Young Persons and Their Families Act 1997;
- statutory declarations which are made in support of an application for a restricted driver’s licence pursuant to Section 18(3)(i) of the Vehicle and Traffic Act 1999;
- certain affidavits which are required to be filed pursuant to regulation 10(2) of the Bails Regulations Act 2014 and Bails Act 1994:
- section 17(1) – affidavit that needs to be filed to show cause to a Court that bail money should be returned to the person applying;
- section 20(a) – affidavit that needs to be filed in an application for recognizance be forfeited to the Crown;
- section 24(1) – affidavit that needs to be filed in an application for revocation, variation or addition of a condition of a for order bail; and
- section 27 – affidavit that needs to be filed in an application for release from recognizance;
- affidavits and statutory declarations which are required to be filed with applications for restraining orders or defending restraining orders pursuant to rules 4 and 7 of the Justices (Restraint Orders) Rules 2013;
- affidavits in support of an application to re-open a hearing held in a defendant’s absence pursuant to rule 38 of the Justices Rules 2003;
- affidavits in support of an application for, or to vary, revoke or extend, a Family Violence order pursuant to rule 54L(b) of the Justices Rules 2003;
- affidavits which are required to be filed in child protections cased pursuant to the Magistrates Court (Children’s Division) Rules 2012; and
- affidavits of proof of service of a notice to vacate pursuant to the Residential Tenancy Act 1997.
Importantly, the remote witnessing provisions do not permit copies of documents to be certified remotely. Certifying a document as a true copy of the original must be done in person by an authorised witness.
What are the requirements for executing and witnessing documents remotely?
In witnessing such documents using an audio-visual link the following conditions must be complied with:
- The witness must be able to observe, in real-time, the document being signed.
The camera angle may need to be adjusted to allow the witness simultaneously to see not just the face of the signatory but also the signing hand of the signatory and the document as the signing occurs. There is no specific platform that you are required to use when witnessing or signing the documents.
- The witness must be satisfied that the document they sign is the same document, or a copy of the document, they have observed being signed in accordance with above.
For documents being signed in counterpart, one way for a witness to satisfy themselves might be to have the document read aloud by the signatory so the witness can check that the counterpart is identical. Another way might be to ask the signatory to hold it close to the camera and conduct a “page turn” comparison.
- In signing the document, the witness is to endorse the document with a statement specifying that the document was sworn, made or signed, and witnessed, in accordance with the Notice made by the Premier under section 17 of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 on 22 September 2021.
There are two possible ways to sign the document:
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- that the witness may sign an exact counterpart of the document as soon as practical after witnessing the signing of the document; or
- if the signatory scans and send a copy of the signed document electronically, the witness may countersign the document as soon as practicable after witnessing the signing of the document.
Signatories and witnesses using the remote witnessing provisions do not appear to be required to be physically present in Tasmania at the time of witnessing, as long as the relevant document is required to be signed under is governed by Tasmania law and allowed to be remotely witnessed in accordance with the Notice. This would allow, for example, a person based overseas to have a document governed by Tasmania law witnessed by an authorised witness based in Tasmania.
The ‘original’ of a remotely witnessed document must contain every page or part of the document, and every signature, mark or endorsement. For example, a page or part of a document is only required to be included in the ‘original’ once, except where different copies of the same page or part contain a signature or mark or signatory or witness, or the endorsement required.
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 Tasmanian Act or law.
Justices of the Peace should take care to document the procedures followed in each case and retain all copies necessary to evidence the signing and witnessing process.
Although I see the remote witnessing of legal documents as a positive step, it is also important to consider some of its potential pitfalls. For example, the legislation does not require the recording or storage of remote witnessing sessions which may become relevant to review if an assertion of influence in the signing of affidavits and/or statutory declarations. That is, the technology creates the possibility that during the remote witnessing session a third party may be present in the room, who guides and influences the signatory to sign the legal document, which the witness is unaware of, as the third party’s actions may be outside the field of vision of the audio-visual link.
It may be sound practice to seek the consent of the signatory to record the remote witnessing session and identify if any other individuals are present.
Overall, the implementation of such rules around Australia has been so successful that most States and Territories have decided to keep these temporary changes long term. The use of remote witnessing has largely been viewed as an effective and successful tool in allowing the legal profession to adapt to the constraints brought on by the COVID-19 environment. But not only that, it has allowed people in remote areas to have more access to the services of Justices of the Peace.
Alex Cordova