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NSW Government Bulletin

29 April 2020

#Government

Published by:

Rebecca Weakley

NSW Government Bulletin

NSW allows audio visual witnessing of documents during COVID-19

In light of the COVID-19 pandemic, the NSW Government has recently passed regulations that allow documents to be witnessed via audio visual link.

On 22 April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulation) came into effect, amending the Electronic Transaction Regulation 2017 (NSW).

The COVID-19 restrictions imposed in NSW have made it difficult for people to execute documents in the presence of a witness. Across NSW, public libraries are closed, and a number of scheduled desk locations for Justices of the Peace have been suspended. Further, a number of organisations have employees working from home, rather than in the office, presenting issues in relation to meeting to execute documents. Although witnessing documents from behind a car window was a novel solution to witnessing documents in the context of social distancing, the Regulation now provides a recognised method to reduce the need for face-to-face contact during the pandemic.

The Regulation provides that documents that require a witness may be witnessed via audio visual link and that tasks in relation to witnessing a document may be performed via audio visual link. In this context, audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places.

The types of documents covered by the Regulation include the following:

  • a will
  • a power of attorney or enduring power of attorney
  • a deed or agreement
  • an enduring guardianship appointment
  • an affidavit, including an annexure or exhibit to the affidavit
  • a statutory declaration.

Requirements for witnessing

The Regulation sets out a number of requirements for the person who witnesses the signing of a document via an audio visual link. The witness must:

  • watch the signatory sign the document in real time via the audio visual connection
  • confirm that the signature was witnessed, by signing the document or a copy of the document
  • be reasonably satisfied the document is the same document, or a copy of the same document, that the witness observed being signed
  • endorse the document or copy of the document by stating what method was used to witness the signature and stating that the document was witnessed in accordance with the Regulation. An example statement is provided in the Regulation to assist witnesses: “the document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.”

Procedure for witnessing

To witness the signing of a document audio visually, the following steps are required (in addition to the administration of the oath or affirmation, where applicable):

  • establish an audio visual link. This can be via (but is not limited to) Skype, Webex, Zoom, FaceTime or WhatsApp
  • the signatory should:
    • display the document to be signed to the witness, and confirm to the witness that the document is complete and has no amendments
    • sign and date the document, and ensure the witness observes the signature and date via the audio visual service
    • scan a copy of the signed document or send a counterpart of the document to the witness.
  • the witness should:
    • countersign the scanned copy or sign the counterpart document as soon as practicable after witnessing the signature
    • include a statement on the document to the effect of:
      • “This [document] has been signed and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).”

While the Regulation has provided the option to sign counterparts, it would be preferable for the signatory and the witness to sign the same document as it reduces the risk of inconsistent versions and the impracticality of filing and serving (where applicable) or even keeping track of counterparts.

Oaths and declarations

To assist the witnessing of NSW statutory declarations, the categories of authorised witnesses have been expanded in line with Commonwealth legislation:

  • an oath, declaration or affidavit required for a purpose specified in section 26 of the Oaths Act 1900 (NSW) can be taken or made before an Australian legal practitioner as if the practitioner were a justice of the peace
  • a NSW statutory declaration can be made before a person before whom a statutory declaration under the Statutory Declarations Act 1959 (Cth) can be made.

The latter enables, for example, accountants to witness statutory declarations made under the NSW Act.

The Regulation is in place for six months, with NSW Parliament having the option to extend the Regulation to a maximum of 12 months.

While the Regulation is in force, the traditional methods of signing and witnessing documents still remain valid.

Click here to read more on the broader context of electronic transactions and here to read about the Queensland legislative response.

Authors: Christine Jones & Rebecca Weakley

In the media

Covid safe: Australian government launches coronavirus tracing app amid lingering privacy concerns
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COVID 19 arrangements for electronic witnessing of legal documents
President of the Law Society of NSW has welcomed the passing of an emergency regulation which allows for the witnessing of legal documents to be conducted electronically during the COVID-19 pandemic. The temporary provisions, which have been added to the Electronic Transactions Regulation 2017, provide altered arrangements for the witnessing of documents (23 April 2020).  More...

Domestic Violence in the wake of COVID-19 in NSW
Concerns have been raised that social isolation strategies implemented to address the COVID-19 pandemic may inadvertently increase the incidence of domestic violence.  The Bureau of Crime Statistics and Research have compiled preliminary statistics to monitor any early signs of increase in domestic violence (23 April 2020).  More...

OAIC takes stand over virus transparency
The Office of the Australian Information Commissioner (OAIC) has joined with its State and Territory counterparts to issue a public statement on the importance of transparency during the current Coronavirus pandemic (21 April 2020).  More...

How these agencies are breaching patient privacy
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The Family Court of Australia and Federal Circuit Court of Australia formalises support for alternative dispute resolution with the introduction of an Arbitration List
To support the development and promotion of arbitration for property matters in family law, the Family Court of Australia and the Federal Circuit Court of Australia (the Courts) have established a new specialist list in each Court, to be known as the National Arbitration List (16 April 2020).  More...

Appointment of The Family Court and Federal Circuit Court Chief Executive Officer and Principal Registrar
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LCA: High Court decision highlights ongoing vulnerability
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HRLC: Press freedom remains under threat despite High Court ruling
Today the High Court unanimously ruled that the warrant relied on by the Australian Federal Police to raid the home of News Corporation journalist Annika Smethurst was invalid, and the raid was therefore unlawful. However laws that criminalise public interest reporting remain in place, leaving journalists and whistleblowers exposed to police investigation and prosecution (15 April 2020).   More...

Practice and courts

Federal Circuit Court of Australia: Practitioner and litigant guide to virtual hearings and Microsoft Teams
This Guide is for proceedings conducted in the Family Court of Australia and the Federal Circuit Court of Australia (22 April 2020).  More...

High Court of Australia: Practice Notes

Evidence by Affidavit
High Court of Australia, 3 of 2020 - This Practice Direction takes effect on 15 April 2020.
The Registrar may accept  the  filing  of  the affidavit signed by the deponent but not sworn or affirmed before  a  qualified  witness  on  the  understanding  that,  if  required,  the  affidavit will later be sworn or affirmed when circumstances allow.

Law Council of Australia Submissions
21 April 2020— Law Council.  More...

Australian Bushfires Disaster Emergency Declaration — Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021

Current Senate Inquiries
Select Committee on COVID-19.  More...

Environment and Communications References Committee
On 16 March 2020, the Committee presented a progress report recommending that the Senate grant an extension of time to report until 20 May 2020.  More...

Legal and Constitutional Affairs References Committee
On 23 March 2020 the committee's reporting date was extended to 9 September 2020.  More...

Legal and Constitutional Affairs Legislation Committee
Report by 20 November 2020.  More...

NSW

DCJ: COVID-19. Video tech for witnessing legal documents
Last published on 22 Apr 2020.  More...

DCJ: COVID-19. Free help for pandemic legal issues
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NSW Privacy Commissioner Statement:  use of mobile phone data for managing the COVID-19 pandemic
The NSW Privacy Commissioner, Ms Samantha Gavel, has issued a statement about the use of aggregated mobile phone data to assist in the NSW Government COVID-19 response (18 April 2020)

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COVID - 19: Information for Attending Court – as at 20 April 2020
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments

Consultations
Statutory review of the Crimes (Serious Crime Prevention Orders) Act 2016
The NSW Department of Communities and Justice is conducting a review of the Crimes (Serious Crime Prevention Orders) Act 2016 to determine whether the policy objectives remain valid and the terms remain appropriate for securing those objectives. Submissions close on 22 May 2020.

Cases

Re Young; Re Young [2020] HCA 13
High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established.
Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty".

Smethurst v Commissioner of Police [2020] HCA 14
Held: Search warrant was invalid Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision.
Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds. Constitution, s 75(v); Australian Federal Police Act 1979 (Cth), s 8.; Crimes Act 1914 (Cth), Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3); Judiciary Act 1903 (Cth), s 32.

Australian Information Commission v Facebook Inc [2020] FCA 531
PRACTICE AND PROCEDURE – Alleged contraventions of s 13G of the Privacy Act 1988 (Cth) – Interlocutory Application – Application for interim suppression and non-publication orders under s 37AI of the Federal Court of Australia Act 1976 (Cth) – Application for service outside of Australia pursuant to r 10.43(3) and (4) of the Rules – Application for substituted service under r 10.24 of the Federal Court Rules 2011 (Cth) – Application granted

Godla v Commissioner of Police, New South Wales Police Force [2020] FCA 489
ADMINISTRATIVE LAW – application for judicial review of decision under federal statute made by an agent of a state decision-maker, the Commissioner of Police, NSW – pseudonym application – where the Commissioner’s agent refused applications by the applicant for permission to travel as required by s 271A.1 of the Criminal Code (Cth) in circumstances where the applicant was named on the NSW Child Protection Register – where the Minister for Foreign Affairs cancelled the applicant’s passport and refused to reinstate the applicant’s passport – whether decision-makers made reviewable errors under s 5, s 6, or s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – no other viable grounds of review established – application dismissed with costs

Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74
CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar’s decision   CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A   CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11   CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency

Hamzy v Commissioner of Corrective Services and the State of NSW [2020] NSWSC 414
Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant requiring legal practitioners to undergo criminal records enquiry as part of the approval process to visit high risk restricted inmates – Whether decision unlawful – Whether decision unreasonable – Whether decision infringed or removed the right of a high risk inmate to choose a legal practitioner   Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant to deny the plaintiff access to AVL facilities for the purposes of conferring with his legal representative – Where the defendant took into account the fact that conversations over AVL could not be monitored – Where defendant also took into account the security risk which would arise if the plaintiff were granted access – Whether defendant’s decision was unreasonable   Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to the practice of the defendant to permit limited monitoring of calls between the plaintiff and his legal representative – Whether such a practice unlawful – Whether such a practice amounted to an impermissible intrusion into legal professional privilege   Statutory interpretation – Prison legislation – General principles applicable to the interpretation of such legislation – General reluctance of Courts to interfere in matters of prison administration – Necessity to recognise the difficulty of the task of managing prisons – General recognition of Parliament’s intention to give those responsible for the management of prisons a broad discretion commensurate with their task   Human Rights Law – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Where defendant required that communications to which the plaintiff was party during visits in custody be in English – Where plaintiff asserted a right to be able to speak Arabic – Whether the right to freedom of expression encompassed a right of the plaintiff to be able to speak in the language of his choice – Whether provisions of the regulations pursuant to which the defendant acted in requiring that conversations be conducted in English were invalid constitutionally or otherwise   Words and phrases – “in English” – “based on”

Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69
ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review

Learmouth v Secretary, Department of Education [2020] NSWCATAD 109
ADMINISTRATIVE LAW – government information – reasonable searches – disclosure against public interest

Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108
ADMINISTRATIVE REVIEW — grant of liquor licence — whether the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community

DTN v Commissioner of Police [2020] NSWCATAD 107
 PROCEDURE - Time for lodgement of Application under Privacy and Personal Information Protection Act 1998 (NSW) – “the time the applicant first became aware” – imputed knowledge - agency – materials supplied to the applicant’s former solicitor but not to the applicant

Dezfouli v Commissioner of Police [2020] NSWCATAD 103
ADMINISTRATIVE LAW – government information – access application – prejudice supply of information – reveal identity of informant – personal information – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure

Legislation

NSW

Regulations and other miscellaneous instruments
Child Protection (Working with Children) Amendment (COVID-19 Proof of Identity) Regulation 2020 (2020-168) — published LW 22 April 2020
Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (2020-169) — published LW 22 April 2020
Administrative Arrangements (Administration of Acts—Amendment No 3) Order 2020 (2020-149) — published LW 15 April 2020
Administrative Arrangements (Administrative Changes—Ministers and Public Service Agencies) Order 2020 (2020-150) — published LW 15 April 2020
Legal Profession Uniform Law Application Amendment (Savings and Transitional) Regulation 2020 (2020-151) — published LW 17 April 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rebecca Weakley

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