Video conferencing technology like Skype, WhatsApp, FaceTime and Zoom is now legal to use in the electronic witnessing of critical legal documents like SMSF trust deeds, powers of attorney and statutory declarations under new regulations in NSW.

The new temporary regulation, made under section 17 of the Electronic Transactions Act, helps reduce face-to-face contact and make it easier for people to stay home while still completing essential transactions during the COVID-19 pandemic.

Under the new law, a witness must see a person signing the document in real-time to confirm the signature is legitimate. Now they can safely do so using video conferencing technology.

The witness signs the document, or a copy of the document, to confirm they witnessed the signature. There are various options to sign, such as a hard copy scanned and sent to the witness or on an identical counterpart of the document the signatory signs.

Traditional methods of signing and witnessing these documents remain valid while the regulation is in force.

The number of categories of people authorised to witness documents have expanded in line federal legislation to facilitate witnessing NSW statutory declarations during COVID-19.

Commentary

While the change applies to the state of NSW at the time of writing, other states and territories will no doubt follow this lead to provide more certainty around the legal signing and witnessing of essential documents during the COVID-19 pandemic.

As already flagged by ASF Audits, the ATO is aware of the different laws that apply to electronic signing of SMSF documents. They are currently working towards amending the relevant laws that impede electronic signatures used for financial statements and other documents.

While the use of e-signatures is common practice within the SMSF industry, the ATO does not intend to pursue compliance activities as a commonsense approach ensures the safety and integrity of the superannuation industry.

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