Article Update:
As at 24 April 2020, following on from the changes in NSW, Victoria has introduced temporary measures in the COVID-19 Omnibus (Emergency Measures) Act 2020. This Act modifies the law in Victoria for the purposes of responding to COVID-19. 

In relation to affidavits, the Act specifies that in relation to requirements under the Amendments of Oaths and Affirmations Act 2018, the following are now applicable:

• 49B: A deponent or an authorised affidavit taker is able to satisfy the requirements of a signature or initials by electronic means. 
• 49C: The requirement for a deponent or an authorised affidavit taker to be in each other's presence may be satisfied by means of audio link or audio visual link. 
• 49D: The requirement for a deponent or an authorised affidavit taker to sign or initial the original copy of an affidavit, jurat or other document may be satisfied by the taker signing or initialing a scanned hard copy or an electronic copy of the affidavit, jurat or other document. 

It is important to note that the affidavit taker must state that the above processes were completed either by electronic means, by means of audio link, or audio visual link - and that the document is an electronic copy or scanned copy, and not an original. 

The temporary measures above from the COVID-19 Omnibus (Emergency Measures) Act 2020 are applicable despite anything contrary appearing in the legislation, the Human Rights Charter or in the Constitution Act 1975. 

In addition, as at 31 March 2020, the Federal Court has updated its guidelines to temporarily allow documents to be signed electronically. A person may also type their name into the document in lieu of a traditional or digital signature.  The new rules were introduced in the Special Measures In Response to COVID-19 (SMIN-1).
 

Article Update:
As at 22 April 2020, NSW has introduced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.  This Regulation provides that during the COVID-19 pandemic:

1. Documents that require a witness may be witnessed by audio visual link (including video conferencing);
2. Documents include the following:
   1. Affidavit
   2. A Will
   3. Power of Attorney / Enduring Power of Attorney
   4. Deed or agreement
   5. Enduring guardianship appointment
   6. Statutory declaration
3. If a signature is required to be witnessed, the signature may be witnessed by audio visual link;
4. Arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link; and
5. A witness must (via audio visual link):
   1. Observe the signatory sign the document in real time;
   2. Attest / confirm the signature was witnessed by signing the document or a copy of the document;
   3. Be reasonably satisfied the document the witness signs is the same document, or a copy; and
   4. Endorse the document, or the copy, with a statement specifying the method used to witness the signature of the signatory, and that the document witnessed in accordance with this Regulation, being Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.

Due to the social distancing regulations put in place to help deal with the COVID-19 outbreak, Australian courts have implemented a myriad of solutions to address the traditional method of swearing or affirming an affidavit in person.  

Under normal circumstances, the execution of documents is a complex area of law - however compromises have been made in order to accommodate these extraordinary times.

At this stage, few of the solutions involve digital signatures, despite the fact that (in principal) electronic signatures are valid under the Common Law, and have largely become accepted in the execution of various documents, including contracts and agreements (subject to any relevant statutory requirements or notable exceptions such as Deeds and companies signing under s127 of the Corporations Act 2001).

In fact, a large majority of contracts in Australia are signed digitally, meaning that under the Common Law, it is plausible for a digital affidavit to be executed and sworn or affirmed through a livestream (via Zoom, FaceTime or other similar platforms) attended by the relevant parties, in lieu of the parties meeting in person.

The procedure for Affidavits could temporarily transition into a digital platform across every jurisdiction.  As a suggestion, this procedure could potentially involve the following steps:

1. The Deponent identifies themselves, and indicates their intention in respect of the documents, and any further evidence required.
2. Both parties provide their written consent to the use of digital signatures.
3. Deponent digitally affixes their signature to an affidavit, during a livestream on an application such as Microsoft Teams, FaceTime or Zoom.
4. The authorized affidavit taker will watch the livestream.
5. Subsequently, the authorized affidavit taker can digitally swear or affirm the affidavit.

Unfortunately, each court currently has its own protocol in relation to the taking of Affidavits.

Below is a summary of some of those protocols, accurate as of 9 April 2020:

New South Wales Courts:

• Affidavits can be signed and witnessed by audio visual link

CLICK HERE for more information.
 

County Court of Victoria

• Registrar will accept the filing of an Affidavit which has not been sworn or affirmed, provided that a sworn or affirmed version is filed as soon as practicable.
• Ensure that the affidavit is signed by the deponent, and that a paragraph is included in the body of the affidavit stating that it cannot be sworn or affirmed at this stage due to measures to minimise the spread of COVID-19.

CLICK HERE for more information.
 

Supreme Court of Victoria

• The Chief Justice has made an order under r 2.04 of the Supreme Court (General Civil Procedure) Rules 2015 dispensing with the requirement under rr 2.05 and 05 of the Probate Rules to file an affidavit of searches in support of applications for probate or administration.
• There will no longer be a requirement to file an affidavit of searches in support of applications for probate or administration.
• Applications for probate and administration (and all documents filed in the Probate Office) must be sent via post to Registrar of Probates. It is recommended all applications that include original Wills be sent via registered post.
• Once the Probate Office receives an application for probate or administration, Probate Office staff will conduct all searches in respect of the application that formerly would have been conducted by or on behalf of the applicant when preparing an affidavit of searches.

CLICK HERE for more information.
 

Magistrates Court of Victoria

• The Court expects parties to sign and witness Affidavits in the usual way.

CLICK HERE for more information.
 

VCAT

• The Tribunal expects parties to sign and witness Affidavits in the usual way.

CLICK HERE for more information.
 

Federal Court of Australia

• The Court will accept unsworn Affidavits for the time being, that will need to be sworn or affirmed when the situation changes.

CLICK HERE for more information.
 

NSW Family Court and Federal Circuit Court

• Signatures on documents and Affidavits may be done electronically.
• Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020

CLICK HERE for more information.
 

Family Court of Australia

• Affidavits and other documents requiring a signature under the Family Law Rules 2004 or the Federal Circuit Court Rules 2001 may be signed digitally, including by having a person type their name into the signature block in lieu of a physical signature.
• Court will accept documents which have not been witnessed, provided the deponent is available to swear or affirm that the contents of the documents are true and correct to the best of their knowledge, information and belief.

CLICK HERE for more information.

If you have a query relating to any of the information in this piece, or if you have a specific question regarding a matter of your own, please don’t hesitate to get in touch today.