COVID-19 | Emergency Measures in Victoria – Electronic execution of deeds and mortgages, and remote witnessing

On 24 April 2020, the Victorian Government’s COVID-19 Omnibus (Emergency Measures) Act 2020 received Royal Assent. That Act made sweeping changes in various areas, on a temporary basis, to address many practical issues being faced due to the various restrictions in force to seek to minimise the spread of COVID-19. That Act permitted the Governor in Council to pass regulations to modify existing laws in a number of areas (and many of these have been discussed separately). Among the laws referred to are the laws relating to the witnessing, execution or signing of legal documents such as affidavits, statutory declarations, deeds, powers of attorney, contracts or agreements, undertakings and wills.

The Victorian Government has now introduced temporary measures to allow the electronic execution of deeds and mortgages, and witnessing of the signing of documents to occur by audio-visual link.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into effect on 12 May 2020. The Regulations will expire on 24 October 2020.

Electronic execution of deeds and mortgages

A deed or mortgage may now be executed electronically in Victoria, in accordance with the temporarily amended section 9 of the Electronic Transactions (Victoria) Act 2000 (ETA).

Consent of other party not required

The Regulations also remove a party’s ability to withhold their consent to receiving an electronic signature, under section 9(1)(c) of the ETA.  In other words, a party cannot simply contend they do not wish to receive a document that has been executed electronically, if the document is otherwise compliant with the requirements of the ETA.

Split execution

Where a document requires multiple signatures on the same document, that requirement is now taken to be met, on the condition that each person who is required to sign the document, or whose consent is required under paragraph 9(1)(c) of the ETA, receives every copy on which a signature appears.  This appears to supplement the Commonwealth’s recent changes to permit signing for a company by its directors/secretary under Section 127 of the Corporations Act 2001 (Cth) electronically, as discussed in this separate article.[1]

Remote witnessing

The Regulations also temporarily amend section 10 of the ETA to provide that a person may witness a transaction by audio visual link.

A witness must write a statement accompanying their signature that indicates that the witnessing occurred by audio visual link in accordance with the regulation.

Other Amendments

The Regulations have also made other changes in relation to signing and witnessing of documents, such as powers of attorney, statutory declarations and wills.  These will be discussed in a separate update, as they merit detailed consideration.

Is this a first step towards permanent reform?

Like the Commonwealth Determination in relation to electronic signing and virtual meetings, these measures are temporary.  However, they will allow the government and practitioners to determine the efficacy of electronic transactions, and lessons learnt over the coming months should hopefully form the basis of welcome permanent reform, eliminating a number of anachronistic legacy issues.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

Authored by:

Antoine Pace, Partner
Gabe Abfalter, Associate

[1] See Corporations (Coronavirus Economic Response) Determination (No. 1) 2020, 6 May 2020