COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic)
Version No. 001
COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
S.R. No. 34/2020
Version as at
12 May 2020
TABLE OF PROVISIONS
Regulation Page
Part 1—Preliminary
1Objective
2Authorising provision
3Definition
Part 2—Modification of application of provisions of Electronic Transactions (Victoria) Act 2000
Division 1—Preliminary
4Meanings given by Electronic Transactions (Victoria) Act 2000 apply
Division 2—Deeds and mortgages
5Meaning of transaction
6Provisions regarding signatures apply to deeds and mortgages
Division 3—Signatures and witnessing
7Meaning of requirement for a signature
8Meaning of writing their signature
9When a signature appears on a copy of a document
10Transaction involving remote witnessing
11Consent in relation to signatures
12Persons signing different copies of a document
13Division does not apply Act to transactions and requirements outside its scope
14Division does not permit person to write without forming satisfaction required by law
Part 3—Modification of application of provisions of Oaths and Affirmations Act 2018
15Meanings given by Oaths and Affirmations Act 2018 apply
16Use of audio visual link in making of statutory declaration
17Use of audio visual link in assisting a person to make a statutory declaration
18Electronic signatures, initials, etc.
19Division does not permit person to write without forming satisfaction required by law
Part 4—Modification of application of provisions of Powers of Attorney Act 2014
Division 1—Preliminary
20Meanings given by Powers of Attorney Act 2014 apply
Division 2—Non-enduring power of attorney
21Executing a non-enduring power of attorney—person signing at direction using audio visual link
22Executing a non-enduring power of attorney—witnesses using audio visual link
Division 3—Enduring power of attorney
23Executing an enduring power of attorney—person signing at direction using audio visual link
24Executing an enduring power of attorney—witnesses using audio visual link
25Witnessing acceptance by attorney using audio visual link
26Witnessing acceptance by alternative attorney using audio visual link
Division 4—Instruments of revocation
27Executing an instrument of revocation—person signing at direction using audio visual link
28Executing an instrument of revocation—witnesses using audio visual link
Division 5—Supportive attorney appointments
29Executing a supportive attorney appointment—person signing at direction using audio visual link
30Executing a supportive attorney appointment—witnesses using audio visual link
31Witnessing acceptance by supportive attorney using audio visual link
32Witnessing acceptance by alternative attorney using audio visual link
Division 6—Forms of revocation
33Executing a form of revocation—person signing at direction using audio visual link
34Executing a form of revocation—witnesses using audio visual link
Division 7—Electronic signatures and remote witnessing
35Signatures under Powers of Attorney Act 2014 may be electronic
Division 8—Miscellaneous
36Certifying matters where audio visual link or copies used
37VCAT powers where audio visual link or copies used
38Part does not permit person to write without forming satisfaction required by Act
Part 5—Modification of application of provisions of Wills Act 1997
39Meanings given by Wills Act 1997 apply
40Electronic signatures
41Witnessing a will by audio visual link
42Signing at the testator's direction by audio visual link
43Revoking a will at the testator's direction by audio visual link
44Altering a will with witnesses using audio visual link
45Part does not permit person to write without forming satisfaction required by Act
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 001
COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
S.R. No. 34/2020
Version as at
12 May 2020
Part 1—Preliminary
1Objective
The objective of these Regulations is to modify the application of various provisions of the following Acts to further provide for electronic signatures, witnessing the signing of documents by audio visual link, and related matters—
(a)the Electronic Transactions (Victoria) Act 2000;
(b)the Oaths and Affirmations Act 2018;
(c)the Powers of Attorney Act 2014;
(d)the Wills Act 1997.
2Authorising provision
These Regulations are made under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020.
3Definition
In these Regulations—
audio visual link has the same meaning as in Part IIA the Evidence (Miscellaneous Provisions) Act 1958.
Part 2—Modification of application of provisions of Electronic Transactions (Victoria) Act 2000
Division 1—Preliminary
4Meanings given by Electronic Transactions (Victoria) Act 2000 apply
Expressions used in this Part have the same meanings as they have in the Electronic Transactions (Victoria) Act 2000.
Division 2—Deeds and mortgages
5Meaning of transaction
(1)The application of sections 7(1) and (2) and 13B(2)(c) of the Electronic Transactions (Victoria) Act 2000 is modified as set out in this regulation.
(2)To avoid doubt, in a provision referred to in subregulation (1), transaction includes—
(a)a transaction in the nature of a deed; and
(b)a transaction in the nature of a mortgage.
6Provisions regarding signatures apply to deeds and mortgages
(1)The application of section 9 of the Electronic Transactions (Victoria) Act 2000 in relation to the signing of legal documents is modified as set out in this regulation.
(2)To avoid doubt, section 9 of the Electronic Transactions (Victoria) Act 2000 applies in relation to a requirement for a signature on—
(a)a deed; or
(b)a mortgage.
Division 3—Signatures and witnessing
7Meaning of requirement for a signature
For the purposes of this Division, requirement for a signature means a requirement—
(a)that is for a signature; and
(b)that is referred to in section 9 of the Electronic Transactions (Victoria) Act 2000.
Note
Section 9 of the Electronic Transactions (Victoria) Act 2000 provides for these requirements to be taken to have been met in certain circumstances.
8Meaning of writing their signature
For the purposes of this Division, a reference to a person writing their signature also refers to that person doing a thing that, under section 9 of the Electronic Transactions (Victoria) Act 2000, is taken to meet a requirement for a signature.
9When a signature appears on a copy of a document
For the purposes of this Division, if—
(a)a person does a thing in respect of a copy of a document; and
(b)that thing, under section 9 of the Electronic Transactions (Victoria) Act 2000, is taken to meet a requirement for a signature—
that person's signature is taken to appear on that copy.
10Transaction involving remote witnessing
(1)The application of section 7(1) of the Electronic Transactions (Victoria) Act 2000 is modified as set out in this regulation.
(2)To avoid doubt, for the purposes of the Electronic Transactions (Victoria) Act 2000 a transaction that takes place partly by means of one or more electronic communications includes a transaction that involves remote witnessing.
Note
Section 7(1) of the Electronic Transactions (Victoria) Act 2000 provides that for the purposes of a law of Victoria a transaction is not invalid because it takes place in that way.
(3)A transaction involves remote witnessing if it is one in which a person uses an audio visual link to observe something in relation to which the person writes their signature.
Examples
1 A person observing another person by audio visual link in order to sign a document confirming that person's identity.
2 A person observing, by audio visual link, another person writing their signature in order to sign a document as a witness to that other person's signature.
(4)However, in a transaction in which—
(a)a person (the witness) writes their signature to signify that they have observed something; and
(b)the witness has observed that thing by audio visual link—
a requirement that the witness observed the thing, or has written their signature to signify that they observed the thing, is not to be taken to be met unless the witness also writes a statement accompanying their signature that indicates that the thing was observed by audio visual link in accordance with this regulation.
(5)Nothing in this regulation is to be taken to—
(a)prevent a provision of Division 2 or 3 of Part 2 of the Electronic Transactions (Victoria) Act 2000 from dealing with the validity of a transaction that involves remote witnessing (whether or not the application of the provision is modified by these Regulations); or
(b)otherwise affect the application of section 7(2) of that Act to a transaction that involves remote witnessing.
(6)In this regulation—
transaction means a transaction within the meaning of the Electronic Transactions (Victoria) Act 2000 and, to avoid doubt, includes—
(a)a transaction in the nature of a deed; and
(b)a transaction in the nature of a mortgage.
11Consent in relation to signatures
Section 9 of the Electronic Transactions (Victoria) Act 2000 applies as if after section 9(1) there were inserted—
"(1A)The fact that a person proposes to use a method referred to in subsection (1)(a) involving an electronic signature is not of itself sufficient reason to refuse to give the consent referred to in subsection (1)(c).".
12Persons signing different copies of a document
(1)The application of section 9(1) of the Electronic Transactions (Victoria) Act 2000 to circumstances where there are requirements for more than one signature on the same document is modified as set out in this regulation.
(2)The conditions set out in section 9(1) of the Electronic Transactions (Victoria) Act 2000, the meeting of which results in a requirement for a signature being taken to have been met, are to be read as also including the condition set out in subregulation (3).
(3)The condition is that each person—
(a)whose signature is required on the document; or
(b)whose consent is required under section 9(1)(c) of the Electronic Transactions (Victoria) Act 2000—
receives every copy on which a signature appears.
(4)None of the following circumstances prevents those requirements from being taken, under section 9(1) of the Electronic Transactions (Victoria) Act 2000, to have been met—
(a)some of those signatures appearing on only some of the copies of the document; or
(b)there being a copy on which not all the signatures appear; or
(c)there being no copy on which all the signatures appear.
13Division does not apply Act to transactions and requirements outside its scope
Nothing in this Division applies a provision of the Electronic Transactions (Victoria) Act 2000 to a transaction, or to a requirement for a signature, to which that provision does not otherwise apply.
14Division does not permit person to write without forming satisfaction required by law
Nothing in this Part is to be taken to limit any requirement imposed by a law of Victoria under which a person must not write something without first being satisfied of certain matters.
Part 3—Modification of application of provisions of Oaths and Affirmations Act 2018
15Meanings given by Oaths and Affirmations Act 2018 apply
Expressions used in this Part have the same meanings as they have in the Oaths and Affirmations Act 2018.
16Use of audio visual link in making of statutory declaration
(1)The application of section 30 of the Oaths and Affirmations Act 2018 to the making of a statutory declaration is modified as set out in this regulation.
(2)A reference in section 30(2) of the Oaths and Affirmations Act 2018 to a statutory declaration being declared in the presence of a statutory declaration witness is to be read as including the statutory declaration being declared while the person doing so and the witness are each appearing before each other by audio visual link.
(3)A reference in section 30(3) of the Oaths and Affirmations Act 2018 to the person making the statutory declaration and the statutory declaration witness doing the things set out in the paragraphs of section 30(3) of that Act in the presence of each other is to be read as including the conditions in subregulation (4) being met.
(4)The conditions are that—
(a)the person making the statutory declaration does the things set out in the paragraphs of section 30(3) of the Oaths and Affirmations Act 2018 while—
(i)the person and the statutory declaration witness are each appearing before each other by audio visual link; and
(ii)the statutory declaration witness observes the doing of those things by that audio visual link; and
(b)a copy is made of the statutory declaration to which the person has done the things referred to in paragraph (a); and
(c)if the statutory declaration refers to a document, the following things are done to that document and the certificate in respect of that document described in section 30(3)(c) of that Act—
(i)a copy is made of the certificate; and
(ii)a copy is made of the document; and
(iii)the copies are attached to each other; and
(d)the statutory declaration witness does the following things to the copy of the statutory declaration while the statutory declaration witness and the person making the statutory declaration are each appearing before each other by audio visual link—
(i)signs or initials each alteration to the statutory declaration referred to in section 30(3)(a) of that Act;
(ii)signs or initials each page of that copy;
(iii)signs and dates that copy;
(iv)legibly writes, types or stamps their name and address on that copy;
(v)writes or stamps under their signature required by subparagraph (iii) or (iv)—
(A)their qualification as a statutory declaration witness; and
(B)a statement indicating that the statutory declaration was witnessed using an audio visual link in accordance with this regulation; and
(e)if a copy of a certificate and a copy of a document are made in accordance with paragraph (c), the statutory declaration witness—
(i)signs the copy of the certificate; and
(ii)writes a statement indicating that the statutory declaration was witnessed using an audio visual link in accordance with this regulation; and
(f)the copy of the statutory declaration, along with any copies of certificates and attached documents, are transmitted to the person making the statutory declaration; and
(g)the person making the statutory declaration—
(i)writes on the copy of the statutory declaration and the copy of each certificate a statement that—
(A)the copy is a true copy of the statutory declaration made by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(h)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(5)For the purposes of subregulation (4)(d)(iv), the address of the statutory declaration witness may be a personal address or a professional address.
(6)It does not matter how a copy of a document is transmitted for the purposes of subregulation (4).
17Use of audio visual link in assisting a person to make a statutory declaration
(1)The application of section 32 of the Oaths and Affirmations Act 2018 is modified as set out in this regulation.
(2)A reference in section 32 of the Oaths and Affirmations Act 2018 to a person who assists a person to make a statutory declaration is to be read as including a person who provides that assistance while both persons are appearing before each other by audio visual link.
(3)A reference in section 32(1) of the Oaths and Affirmations Act 2018 to a person legibly writing, stamping and explaining certain information on the face of the statutory declaration is to be read as including, if the person provided assistance using an audio visual link as described in subregulation (2), the conditions in subregulation (4) being met.
(4)The conditions are that—
(a)a copy is made of the statutory declaration to which the person making it and the statutory declaration witness have done the things set out in section 30(3); and
(b)on that copy, the person who provided the assistance legibly—
(i)writes or stamps the name and address of the assistant; and
(ii)explains the nature of the assistance provided to the person making the declaration; and
(iii)writes a statement that indicates that the assistance was provided using an audio visual link in accordance with this regulation; and
(c)the copy of the statutory declaration is transmitted to the person making the statutory declaration; and
(d)the person making the statutory declaration—
(i)writes on the copy of the statutory declaration a statement that—
(A)the copy is a true copy of the statutory declaration made by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(e)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(5)It does not matter how a copy of a document is transmitted for the purposes of subregulation (4).
18Electronic signatures, initials, etc.
(1)The application of sections 30 and 32 of the Oaths and Affirmations Act 2018 is modified as set out in this regulation.
(2)A reference in section 30 or 32 of the Oaths and Affirmations Act 2018, or in a provision of these Regulations modifying either section, to a person signing, initialling, dating or writing anything else on a document is to be read as including the person—
(a)doing that to the document by electronic means; and
(b)making on the document a statement indicating that the thing was done by electronic means in accordance with this regulation.
(3)A reference in section 30 of the Oaths and Affirmations Act 2018, or in a provision of these Regulations modifying that section, to a signature is to be read as including an electronic signature that is accompanied by a statement indicating that the signature was made by electronic means in accordance with this regulation.
19Division does not permit person to write without forming satisfaction required by law
Nothing in this Part is to be taken to limit any requirement imposed by the Oaths and Affirmations Act 2018 under which a person must not write something without first being satisfied of certain matters.
Part 4—Modification of application of provisions of Powers of Attorney Act 2014
Division 1—Preliminary
20Meanings given by Powers of Attorney Act 2014 apply
Expressions used in this Part have the same meanings as they have in the Powers of Attorney Act 2014.
Division 2—Non-enduring power of attorney
21Executing a non-enduring power of attorney—person signing at direction using audio visual link
(1)The application of section 11(1) of the Powers of Attorney Act 2014 to the execution of a non-enduring power of attorney is modified as set out in this regulation.
(2)A reference in section 11(1)(b) of the Powers of Attorney Act 2014 to a person signing a power of attorney in the presence of the principal and at the principal's direction is to be read as including the person signing the power of attorney while that person and the principal are appearing before each other by audio visual link.
22Executing a non-enduring power of attorney—witnesses using audio visual link
(1)The application of section 11(2) of the Powers of Attorney Act 2014 to the execution of a non-enduring power of attorney is modified as set out in this regulation.
(2)A reference in section 11(2)(a) of the Powers of Attorney Act 2014 to a person (a witness) being present and witnessing a person signing the power of attorney at the principal's direction is to be read as including the witness doing so by audio visual link in accordance with subregulation (3).
(3)A witness is present at and witnesses a person signing the power of attorney by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the witness and each of the following persons who is not physically present with the witness appear before each other by audio visual link—
(i)the principal;
(ii)the person signing the power of attorney; and
(b)the witness observes, by that audio visual link, the signing of the power of attorney at the principal's direction.
(4)A reference in section 11(2)(b) of the Powers of Attorney Act 2014 to the witnesses signing the power of attorney is to be read as including, if at least one of those witnesses was a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)any witness who was not a remote witness signs the power of attorney; and
(b)a copy is made of the power of attorney as signed by—
(i)the person who signed at the principal's direction; and
(ii)the witness who signed as described in paragraph (a) (if any); and
(c)each remote witness—
(i)signs that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(d)the result is that there is one copy of the power of attorney on which appears the signatures of both witnesses; and
(e)that one copy is transmitted to the person who signed at the principal's direction; and
(f)the person who signed at the principal's direction—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the power of attorney signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(g)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the power of attorney is transmitted for the purposes of subregulation (5).
Division 3—Enduring power of attorney
23Executing an enduring power of attorney—person signing at direction using audio visual link
(1)The application of section 33 of the Powers of Attorney Act 2014 to the execution of an instrument creating an enduring power of attorney is modified as set out in this regulation.
(2)A reference in section 33(a)(ii) of the Powers of Attorney Act 2014 to a person signing the instrument in the presence of the principal and at the principal's direction is to be read as including the person signing the instrument while that person and the principal are appearing before each other by audio visual link.
24Executing an enduring power of attorney—witnesses using audio visual link
(1)The application of section 33 of the Powers of Attorney Act 2014 to the execution of an instrument creating an enduring power of attorney is modified as set out in this regulation.
(2)A reference in section 33(b) of the Powers of Attorney Act 2014 to a person (a witness) being present and witnessing the signing of the instrument is to be read as including the witness doing so by audio visual link in accordance with subregulation (3).
(3)A witness is present at and witnesses the signing of the instrument by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the witness and each of the following persons who is not physically present with the witness appears before each other by audio visual link—
(i)the principal;
(ii)if a person signs the instrument at the principal's direction, that person;
(iii)the other witness; and
(b)the witness observes, by that audio visual link, the signing of the instrument by the principal or a person signing at the principal's direction.
(4)A reference in section 33(b) of the Powers of Attorney Act 2014 to 2 persons—
(a)signing and dating the instrument in the presence of the principal and in the presence of each other; and
(b)certifying in writing in the instrument in the manner required by section 36 of that Act—
is to be read as including, if at least one of those persons was a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)the witness who was not a remote witness (if any) signs and dates the instrument while they and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the instrument at the principal's direction, that person;
(iii)the remote witness; and
(b)a copy is made of the instrument as signed by—
(i)the principal or the person who signed at the principal's direction; and
(ii)the witness who signed as described in paragraph (a) (if any); and
(c)each remote witness and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the instrument at the principal's direction, that person;
(iii)the other witness; and
(d)while appearing as described in paragraph (c), each remote witness—
(i)signs and dates that one copy; and
(ii)certifies in writing in the copy in the manner required by section 36 of the Powers of Attorney Act 2014 as modified by regulation 36; and
(iii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(e)the result is that there is one copy of the instrument on which appears the signatures and certifications of both witnesses; and
(f)that one copy is transmitted to—
(i)if the instrument was signed by a person at the principal's direction, that person; or
(ii)otherwise, the principal; and
(g)the person to whom the one copy is transmitted—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the instrument signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(h)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).
25Witnessing acceptance by attorney using audio visual link
(1)The application of section 37 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)A reference in section 37(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age witnessing an attorney signing a statement of acceptance under section 37(a) of that Act is to be read as including the person doing so by audio visual link in accordance with subregulation (3).
(3)A person witnesses, under section 37(b) of the Powers of Attorney Act 2014, an attorney signing a statement of acceptance under section 37(a) of that Act by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the person and the attorney appear before each other by audio visual link; and
(b)the person observes, by that audio visual link, the signing of the statement of acceptance.
(4)A reference in section 37(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age signing that they have witnessed an attorney signing a statement of acceptance under section 37(a) of that Act is to be read as including, if the person is a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)a copy is made of the instrument that—
(i)creates the power of attorney; and
(ii)contains a statement of acceptance signed by the attorney; and
(b)the remote witness—
(i)signs that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(c)that one copy is transmitted to the attorney; and
(d)the attorney—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the instrument containing the statement of acceptance signed by the attorney; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(e)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).
26Witnessing acceptance by alternative attorney using audio visual link
(1)The application of section 38 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)A reference in section 38(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age witnessing an alternative attorney signing a statement of acceptance under section 38(a) of that Act is to be read as including the person doing so by audio visual link in accordance with subregulation (3).
(3)A person witnesses, under section 38(b) of the Powers of Attorney Act 2014, an alternative attorney signing a statement of acceptance under section 38(a) of that Act by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the person and the alternative attorney appear before each other by audio visual link; and
(b)the person observes, by that audio visual link, the signing of the statement of acceptance.
(4)A reference in section 38(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age signing that they have witnessed an alternative attorney signing a statement of acceptance under section 38(a) of that Act is to be read as including, if the person is a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)a copy is made of the instrument that—
(i)creates the power of attorney; and
(ii)contains a statement of acceptance signed by the alternative attorney; and
(b)the remote witness—
(i)signs that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(c)that one copy is transmitted to the alternative attorney; and
(d)the alternative attorney—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the instrument containing the statement of acceptance signed by the alternative attorney; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(e)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).
Division 4—Instruments of revocation
27Executing an instrument of revocation—person signing at direction using audio visual link
(1)The application of section 46 of the Powers of Attorney Act 2014 to the execution of an instrument of revocation is modified as set out in this regulation.
(2)A reference in section 46(a)(ii) of the Powers of Attorney Act 2014 to a person signing the instrument in the presence of the principal and at the principal's direction is to be read as including the person signing the instrument while that person and the principal are appearing before each other by audio visual link.
28Executing an instrument of revocation—witnesses using audio visual link
(1)The application of section 46 of the Powers of Attorney Act 2014 to the execution of an instrument of revocation is modified as set out in this regulation.
(2)A reference in section 46(b) of the Powers of Attorney Act 2014 to a person (a witness) being present and witnessing the signing of the instrument is to be read as including the witness doing so by audio visual link in accordance with subregulation (3).
(3)A witness is present at and witnesses a person signing the instrument by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the witness and each of the following persons who is not physically present with the witness appear before each other by audio visual link—
(i)the principal;
(ii)if a person signs the instrument at the principal's direction, that person;
(iii)the other witness; and
(b)the witness observes, by that audio visual link, the signing of the instrument by the principal or the person signing at the principal's direction.
(4)A reference in section 46(b) of the Powers of Attorney Act 2014 to 2 persons—
(a)signing and dating the instrument in the presence of the principal and in the presence of each other; and
(b)certifying in writing in the instrument in the manner required by section 49—
is to be read as including, if at least one of those persons were a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)the witness who was not a remote witness (if any) signs the instrument while they and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the instrument at the principal's direction, that person;
(iii)the remote witness; and
(b)a copy is made of the instrument as signed by—
(i)the principal or the person who signed at the principal's direction; and
(ii)the witness who signed as described in paragraph (a) (if any); and
(c)each remote witness and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the instrument at the principal's direction, that person;
(iii)the other witness; and
(d)while appearing as described in paragraph (c), each remote witness—
(i)signs and dates that one copy; and
(ii)certifies in writing in the copy in the manner required by section 36 of the Powers of Attorney Act 2014 as modified by regulation 36; and
(iii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(e)the result is that there is one copy of the instrument on which appears the signatures and certifications of both witnesses; and
(f)that one copy is transmitted to—
(i)if the instrument was signed by a person at the principal's direction, that person; or
(ii)otherwise, the principal; and
(g)the person to whom the one copy is transmitted—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the instrument signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(h)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).
Division 5—Supportive attorney appointments
29Executing a supportive attorney appointment—person signing at direction using audio visual link
(1)The application of section 95 of the Powers of Attorney Act 2014 to the execution of a supportive attorney appointment is modified as set out in this regulation.
(2)A reference in section 95(a)(ii) of the Powers of Attorney Act 2014 to a person signing the appointment form in the presence of the principal and at the principal's direction is to be read as including the person signing the appointment form while that person and the principal are appearing before each other by audio visual link.
30Executing a supportive attorney appointment—witnesses using audio visual link
(1)The application of section 95 of the Powers of Attorney Act 2014 to the execution of a supportive attorney appointment is modified as set out in this regulation.
(2)A reference in section 95(b) of the Powers of Attorney Act 2014 to a person (a witness) being present and witnessing the signing of the appointment form is to be read as including the witness doing so by audio visual link in accordance with subregulation (3).
(3)A witness is present at and witnesses the signing of the appointment form by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the witness and each of the following persons who is not physically present with the witness appear before each other by audio visual link—
(i)the principal;
(ii)if a person signs the appointment form at the principal's direction, that person;
(iii)the other witness; and
(b)the witness observes, by that audio visual link, the signing of the appointment form by the principal or a person signing at the principal's direction.
(4)A reference in section 95(b) and (c) of the Powers of Attorney Act 2014 to 2 persons—
(a)signing and dating the appointment form in the presence of the principal and in the presence of each other; and
(b)certifying in writing in the appointment form in the manner required by section 98 of that Act—
is to be read as including, if at least one of those persons were a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)the witness who was not a remote witness (if any) signs and dates the appointment form while they and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the appointment form at the principal's direction, that person;
(iii)the remote witness; and
(b)a copy is made of the appointment form as signed by—
(i)the principal or the person who signed at the principal's direction; and
(ii)the witness who signed as described in paragraph (a) (if any); and
(c)each remote witness and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the appointment form at the principal's direction, that person;
(iii)the other witness; and
(d)while appearing as described in paragraph (c), each remote witness—
(i)signs and dates that one copy; and
(ii)certifies in writing in the copy in the manner required by section 98 of the Powers of Attorney Act 2014 as modified by regulation 36; and
(iii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(e)the result is that there is one copy of the appointment form on which appears the signatures and certifications of both witnesses; and
(f)that one copy is transmitted to—
(i)if the appointment form was signed by a person at the principal's direction, that person; or
(ii)otherwise, the principal; and
(g)the person to whom the one copy is transmitted—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the appointment form signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(h)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the appointment form is transmitted for the purposes of subregulation (5).
31Witnessing acceptance by supportive attorney using audio visual link
(1)The application of section 99 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)A reference in section 99(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age witnessing a supportive attorney signing a statement of acceptance under section 99(a) of that Act is to be read as including the person doing so by audio visual link in accordance with subregulation (3).
(3)A person witnesses, under section 99(b) of the Powers of Attorney Act 2014, a supportive attorney signing a statement of acceptance under section 99(a) of that Act by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the person and the attorney appear before each other by audio visual link; and
(b)the person observes, by that audio visual link, the signing of the statement of acceptance.
(4)A reference in section 99(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age signing that they have witnessed a supportive attorney signing a statement of acceptance under section 99(a) of that Act is to be read as including, if the person is a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)a copy is made of the appointment form that contains a statement of acceptance signed by the attorney; and
(b)the remote witness—
(i)signs that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(c)that one copy is transmitted to the supportive attorney; and
(d)the supportive attorney—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the appointment form containing the statement of acceptance signed by the supportive attorney; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(e)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the appointment form is transmitted for the purposes of subregulation (5).
32Witnessing acceptance by alternative attorney using audio visual link
(1)The application of section 100 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)A reference in section 100(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age witnessing an alternative supportive attorney signing a statement of acceptance under section 100(a) of that Act is to be read as including the person doing so by audio visual link in accordance with subregulation (3).
(3)A person witnesses, under section 100(b) of the Powers of Attorney Act 2014, an alternative supportive attorney signing a statement of acceptance under section 100(a) of that Act by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the person and the alternative supportive attorney appear before each other by audio visual link; and
(b)the person observes, by that audio visual link, the signing of the statement of acceptance.
(4)A reference in section 100(b) of the Powers of Attorney Act 2014 to a person of or over 18 years of age signing that they have witnessed an alternative supportive attorney signing a statement of acceptance under section 100(a) of that Act is to be read as including, if the person is a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)a copy is made of the appointment form that contains a statement of acceptance signed by the alternative supportive attorney; and
(b)the remote witness—
(i)signs that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(c)that one copy is transmitted to the alternative supportive attorney; and
(d)the alternative supportive attorney—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the appointment form containing the statement of acceptance signed by the alternative supportive attorney; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(e)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).
Division 6—Forms of revocation
33Executing a form of revocation—person signing at direction using audio visual link
(1)The application of section 105 of the Powers of Attorney Act 2014 to the execution of a form of revocation is modified as set out in this regulation.
(2)A reference in section 105(a)(ii) of the Powers of Attorney Act 2014 to a person signing the form in the presence of the principal and at the principal's direction is to be read as including the person signing the form while that person and the principal are appearing before each other by audio visual link.
34Executing a form of revocation—witnesses using audio visual link
(1)The application of section 105 of the Powers of Attorney Act 2014 to the execution of a form of revocation is modified as set out in this regulation.
(2)A reference in section 105(b) of the Powers of Attorney Act 2014 to a person (a witness) being present and witnessing the signing of the form is to be read as including the witness complying with subregulation (3).
(3)A witness is present at and witnesses the signing of the form by audio visual link in accordance with this subregulation (and is a remote witness) if—
(a)the witness and each of the following persons who is not physically present with the witness appear before each other by audio visual link—
(i)the principal;
(ii)if a person signs the form at the principal's direction, that person; and
(b)the witness observes, by that audio visual link, the signing of the form by the principal or a person signing at the principal's direction.
(4)A reference in section 105(b) of the Powers of Attorney Act 2014 to a witness signing and dating the form in the presence of the principal is to be read as including, if the witness is a remote witness, the conditions in subregulation (5) being met.
(5)The conditions are that—
(a)a copy is made of the form as signed by the principal or the person who signed at the principal's direction; and
(b)the remote witness and each of the following persons who is not physically present with them appear before each other by audio visual link—
(i)the principal;
(ii)if a person signed the form at the principal's direction, that person; and
(c)while appearing as described in paragraph (b), the remote witness—
(i)signs and dates that one copy; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(d)that one copy is transmitted to—
(i)if the form was signed by a person at the principal's direction, that person; or
(ii)otherwise, the principal; and
(e)the person to whom the one copy is transmitted—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the form signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(f)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the form is transmitted for the purposes of subregulation (5).
Division 7—Electronic signatures and remote witnessing
35Signatures under Powers of Attorney Act 2014 may be electronic
(1)The application of the following provisions of the Powers of Attorney Act 2014 in relation to signatures is modified as set out in this regulation—
(a)section 11;
(b)section 12;
(c)section 30(4);
(d)section 33;
(e)section 34;
(f)section 35;
(g)section 36;
(h)section 37;
(i)section 38;
(j)section 46;
(k)section 47;
(l)section 48;
(m)section 49;
(n)section 95;
(o)section 96;
(p)section 97;
(q)section 98;
(r)section 99;
(s)section 100;
(t)section 105;
(u)section 106;
(v)section 107;
(w)section 117.
(2)A reference in a provision referred to in subregulation (1), or in a provision of these Regulations modifying that section, to a person signing a document is to be read as including the person—
(a)signing that document by electronic means; and
(b)making on the document a statement indicating that the signature was made by electronic means in accordance with this regulation.
(3)A reference in a provision referred to in subregulation (1), or in a provision of these Regulations modifying that section, to a signature is to be read as including an electronic signature that is accompanied by a statement indicating that the signature was made by electronic means in accordance with this regulation.
Division 8—Miscellaneous
36Certifying matters where audio visual link or copies used
(1)The application of sections 36, 49 and 98 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)For the purposes of a certification under section 36, 49 or 98 of the Powers of Attorney Act 2014—
(a)where those sections provide for two persons being in each other's presence, those sections are to be read as also providing for those persons appearing before each other by audio visual link; and
(b)if those persons were appearing before each other by audio visual link, a certification that they were in each other's presence is to be read as including such appearance.
37VCAT powers where audio visual link or copies used
(1)The application of section 117 of the Powers of Attorney Act 2014 is modified as set out in this regulation.
(2)For the purposes of section 117(1)(c)(ii) and (2)(c)(ii) of the Powers of Attorney Act 2014, where those subparagraphs provide for two persons being in each other's presence, those subparagraphs are to be read as also providing for those persons appearing before each other by audio visual link.
38Part does not permit person to write without forming satisfaction required by Act
Nothing in this Part is to be taken to limit any requirement imposed by the Powers of Attorney Act 2014 under which a person must not write their signature without first being satisfied of certain matters.
Part 5—Modification of application of provisions of Wills Act 1997
39Meanings given by Wills Act 1997 apply
(1)Expressions used in this Part have the same meanings as they have in the Wills Act 1997.
(2)The modifications made by this Part apply to a codicil or other testamentary writing in the same manner as they apply to a will.
Note
See section 3(2) of the Wills Act 1997.
40Electronic signatures
(1)The application of the following provisions of the Wills Act 1997 in relation to a signature is modified as set out in this regulation—
(a)section 7;
(b)section 10;
(c)section 15(3).
(2)A reference in a provision referred to in subregulation (1), or in a provision of these Regulations modifying such a provision, to a person signing a document is to be read as including the person—
(a)signing that document by electronic means; and
(b)making on the document a statement indicating that the signature was made by electronic means in accordance with this regulation.
(3)A reference in a provision referred to in subregulation (1), or in a provision of these Regulations modifying such a provision, to a signature is to be read as including an electronic signature that is accompanied by a statement indicating that the signature was made by electronic means in accordance with this regulation.
41Witnessing a will by audio visual link
(1)The application of section 7 of the Wills Act 1997 in relation to the persons being present for or witnessing the signing of a will is modified as set out in this regulation.
(2)A reference in section 7(1)(c) or (d) of the Wills Act 1997 to a person being in the presence of another person is to be read as including those 2 persons appearing before each other by audio visual link.
(3)A reference in section 7(1)(c) of the Wills Act 1997 to a person being a witness to a testator making or acknowledging a signature is to be read as including, where the person and the testator are appearing before each other by audio visual link, the person observing the making or acknowledging of the signature by that audio visual link.
(4)A reference in section 7(1)(d) of the Wills Act 1997 to the will being attested to and signed by at least 2 witnesses in the presence of the testator is to be read as including the conditions set out in subregulation (5) being met.
(5)The conditions are that—
(a)the witnesses (if any) who were in the testator's physical presence when the signature was made or acknowledged by the testator attest and sign the will in the testator's physical presence (but not necessarily in the physical presence of each other); and
(b)a copy is made of the will as signed by—
(i)the testator or the person who signed at the testator's direction; and
(ii)each witness who attested and signed as described in paragraph (a) (if any); and
(c)for each witness who witnessed the will using audio visual link as described in subregulation (3), that witness and the testator appear before each other by audio visual link and while so appearing the witness—
(i)attests and signs the same copy of the will that has, so far, been previously signed by each other witness under this paragraph; and
(ii)writes on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with this regulation; and
(d)the result is that there is one copy of the will on which appears the signatures and statements of all the witness; and
(e)that one copy is transmitted to—
(i)if the will was signed by a person at the testator's direction, that person; or
(ii)otherwise, the testator; and
(f)the person to whom the one copy is transmitted—
(i)writes on that copy a statement that—
(A)the copy is a true copy of the will signed by the person; and
(B)the conditions in this subregulation have been met; and
(ii)signs and dates the writing referred to in subparagraph (i); and
(g)every thing that is done as described in another paragraph of this subregulation is done on the same day.
(6)It does not matter how a copy of the will is transmitted for the purposes of subregulation (5).
42Signing at the testator's direction by audio visual link
(1)The application of section 7 of the Wills Act 1997 in relation to a person signing a will at the testator's direction is modified as set out in this regulation.
(2)A reference in section 7(1)(a) of the Wills Act 1997 to a will being signed by a person at the testator's direction and in the presence of the testator is to be read as including a will being signed by a person at the testator's direction while the testator and that person are appearing before each other by audio visual link.
43Revoking a will at the testator's direction by audio visual link
(1)The application of section 12 of the Wills Act 1997 in relation to a person writing on or dealing with a will at the testator's direction is modified as set out in this regulation.
(2)A reference in section 12(2)(g) of the Wills Act 1997 to a person writing on a will or dealing with it as described in that provision at the testator's direction and in the testator's presence is to be read as including the person doing so at the testator's direction while the person and the testator are appearing before each other by audio visual link.
44Altering a will with witnesses using audio visual link
(1)The application of section 15(3) of the Wills Act 1997 is modified as set out in this regulation.
Note
Section 15(1) of the Wills Act 1997 requires an alteration to a will to be executed in the manner in which the will is required to be executed under that Act. Regulation 41 modifies the application of section 7 of that Act to provide for a will to be witnessed using audio visual link.
(2)A reference in section 15(3) of the Wills Act 1997 to a witness making a signature in a particular part of will is to be read as including—
(a)making that signature in that part of the one copy of the will described in regulation 41(5); and
(b)writing on that copy a statement indicating that witnessing of the alteration was done using an audio visual link in accordance with this regulation.
(3)A reference in section 15(3) of the Wills Act 1997 to a witness making a signature as authentication of a memorandum referring to an alteration and written on the will is to be read as including—
(a)making that signature on the one copy of the will described in regulation 41(5); and
(b)writing on that copy a statement indicating that witnessing of the alteration was done using an audio visual link in accordance with this regulation.
(4)Nothing in this section alters the modification made by regulation 41(5) under which a copy of a will, but only one copy, may be used for the purposes of recording signatures and other things written by witnesses.
45Part does not permit person to write without forming satisfaction required by Act
Nothing in this Part is to be taken to limit any requirement imposed by the Wills Act 1997 under which a person must not write something without first being satisfied of certain matters.
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Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020, S.R. No. 34/2020 were made on 12 May 2020 by the Governor in Council, on the recommendation of the Attorney-General, under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020, No. 11/2020 and came into operation on 12 May 2020.
The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 will sunset 10 years after the day of making on 12 May 2030 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 by statutory rules, subordinate instruments and Acts.
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.
4 Explanatory details
No entries at date of publication.
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