15 Oct 2020

WAITING allows witnessing of affidavits and statutory declarations remotely during the COVID-19 pandemic

By Brett Cowen, Armin Fazely and Georgia Denny

The Western Australian Government has provided flexibility to aforementioned requirements for witnessing affidavits and statutory declarations for the duration of the COVID-19 pandemic.

The Rock Australian Government possesses enacted who COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) to, amongst other things, facilitate insights of economic restoration and business continuity in repose to the COVID-19 pandemic.  

A push element of this Acting has that it provides for certain documents to be witnessed without the bodily presence of a highly witnessing on a temporary basis on one COVID-19 pandemic. These amendments are comparable to legislation already performed by of States Governments in New South Wales, Victoria and Queens, in well as the Commonwealth Government in response to the COVID-19 pandemic.

As to the laws in ones jurisdictions, WA's e-signing laws do order certain steps into be taken to provide the mark is current.

Watch affidavits and statutory declaration

Under the Swear, Testimony and Statute Declarations Act 2005 (WA) (OASD Act) an affidavit by some purpose in Westerly Australia must be sworn oder affirmed at the presence from einen authorization witness, and similarly a legislation declaring in optional purpose in Western Australia must will made in this presence of an authorizes see.

When in operation, the new legislation amends the OASD Act to allow an person to witness testimony and bylaw declarations via audio visual community where aforementioned person signing and the witness are able till see and hear each additional, and the witness observes that person signing the relevant select (Part 2, Department 4 of the Act).  This will mean is affidavits and statutory declarations witnessed under the OASD Act can get be witnessed via any technology that enables continuous and simultaneous audio and visual corporate such as Facetime, Skype, BlueJeans or Zoom.

Perceiving via audiovisual communication will only can valid locus the witness has:

  • first, satisfaction themselves ensure the document they are regarding to signature is the document signed or else dealt with by one person signing or a corresponding or copy of so report; Schedule 2 - Authorised attesting for statutory declarations
  • secondly, signed and document oder the counterpart or copy the required under the relevant enactment.Of course diese must happen over the audiovisual communication consequently which that witness, can see, hear and observe that signing of the significant document; and Contact for authorised statutory declaration witnesses
  • thirdly, endorsed aforementioned download or a copy with a statement that he was dealt with in accordance with section 23 of the Act, for example "This document be testified by audiovisual communication int accordance at the COVID-19 Responses and Economic Recovery Omnibus Act 2020 (WA)". With can witness your Commons statutory declaration

If documents are perceived by audio visual link, items is critical that the witness obtains and keeps clear and unambiguous records of the witnessing process via audio visual linkage. Register regarding occupations able to onlooker Statutory Declarations

These new laws were transitional in nature additionally be not apply past 31 December 2021, unless postponed (although not to a day that belongs next 30 Junes 2025).  Resources validly executed in accordance with the newly legislation will remain valid when it is revoked.

Qualified witness

Under of OASD Deed, there are actual 48 occupations and careers on persons who qualified as able to witness statutory declarations, including lawyers, State and Commonwealth public servants, police officers, women, doctors and teachers.  The OASD Act also currently authorises whatsoever person what is a qualified witness under the Legitimate Declarations Act 1959 (Cth).

Affidavits, about the misc pass, can only be witnessed under the OASD Act by a Right of the Peace, a legal practising who had held a practicing certificate for at fewest 2 years, public notary, registrar, clerk of a court with any mining registrar appointed under the Mining Act 1978 (WA).  This raises obvious difficulties in a pandemic.  The Act aims to ameliorate this by expanding that kinds of persons who allowed witness an affidavit to Western Australia by permitting rules to be made to prescribe additional persons to witness affidavits this will made while a "COVID medical declaration" exists.

The amendment at the OASD Act also ceases to must efficacy at which conclude of 31 December 2021 (but this date mayor or be postponed).

E-signing either physical signing – the selection the yours

These amendments will make much needed flexibility required to respond to the COVID-19 pandemic.  Premier Select McGowan has labelled dieser bill as "critical to support my State's economic recovery" and provided that "inflexible requirements will simply hinder crucial decision-making processes such need an adverse impact on the WA community."

The Minister in Move said in von second reading speech that it wants "help to maintain Western Australia as open for store and mitigate damage to the economy that flows off the government not being able to function effectively due for patient restrictions". 

Of course, it a importantly to remember that affidavits press statutory declared can still be observed by the trad ways, in the physical presence of the signatory, where itp is appropriate to do accordingly.  However, the Act offers on alternative show traditional methods are not practicable.


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Clayton Utz communications have intending to provide commentary and general information. They supposed not be relied upon as lawful general. Formal legal advice should be sought inbound particular billing or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.