Since November 2021
From emergency measure to permanent rule
The department says the arrangements were first introduced as emergency provisions in response to COVID-19, and “were made permanent in November 2021.” Its page was last updated on 31 August 2023. The same month brought a change to who may witness: following 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.”
How it works
How the witness takes part, step by step
See the signatory signing the document in real time over the AVL.
Sign the document, or a copy of it, as evidence of witnessing the signature. That can be a hard copy the signatory signed, then scanned and emailed to the witness, or a counterpart of the document.
Be reasonably satisfied that what they sign is the same document, or a copy of the document, the signatory signed.
Endorse the document “with a statement that specifies the method used to witness the signature and that it was witnessed in accordance with section 14G of the Electronic Transactions Act 2000 (NSW).”
Other witnessing tasks, such as confirming who the signatory is or certifying that they appeared to understand the document, can also be satisfied via AVL, the department says.
Where everyone is
The witness need not be in NSW
Signatory and witness “need not be physically present in NSW” when the witnessing happens, as long as the document must be signed under NSW law, or NSW law governs it. The department gives two examples:
“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.”
NSW Department of Communities and Justice, Witnessing legal documents remotely
When the process is used, the place of execution is where the signatory signed.
The paper part
Putting the “original” together
Sometimes a person needs to produce or keep the “original” of a signed and witnessed document. The department says that, under the Electronic Transactions Act 2000, a remotely witnessed document’s original is made up of:
- Every pageeach page or part of the document
- Every signatureeach signature or mark of the signatory and witnesses wherever required
- The endorsementthe endorsement required by section 14G(2)(d)
A page goes in once, unless different copies of it carry different signatures, marks or the endorsement; then each of those copies goes in, so that nothing signed is left out. A page bearing a physically written signature, mark or endorsement must itself be included. The department spells out the common case:
“This means that if a signatory signs a document by hand in one location, and the witness signs a copy or counterpart of that document by hand in another location, the ‘original’ document would be made up of one full copy of the document, with any pages that have been marked, signed or endorsed by either the signatory or the witness included.”
NSW Department of Communities and Justice, Witnessing legal documents remotely
What AVL does not do
Two limits worth knowing before the call
No certified copies
Copies of documents cannot be certified remotely over AVL. “Certifying a document as a true copy of the original must be done in person by an authorised witness.”
No e-signing by itself
The remote witnessing provisions do not enable documents to be electronically signed. A signatory or witness may sign electronically only where a NSW Act or law otherwise permits it.
Side by side
NSW video witnessing beside a Commonwealth statutory declaration
| Step | NSW, over AVL | Commonwealth statutory declaration, by video link |
|---|---|---|
| Seeing the signature | The witness must see the signatory sign in real time over the AVL. | The witness needs to watch you sign; you must position the camera so they can see it. |
| What the witness signs | The document, or a copy of it, such as a scanned and emailed hard copy or a counterpart. | The declaration, or a copy they are satisfied is a true copy of the one the declarant signed. |
| What the witness adds | A statement naming the method used and section 14G of the Electronic Transactions Act 2000 (NSW). | They complete sections 8, 9 and 10 of the form, their signature and details, and sign and date every page. |
Beside the Commonwealth rule
Other Acts, other rules
This page covers NSW law. A Commonwealth statutory declaration is governed by the Commonwealth Act, which allows observation by video link under its own section 9; see statutory declarations signed digitally. Each state and territory has its own Electronic Transactions Act, and the Attorney-General’s Department says each may differ slightly from the Commonwealth Act and carry different exemptions. How the Commonwealth Act treats writing and signatures is in writing and signatures under the Electronic Transactions Act.
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