In 2020, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Omnibus Act) and the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 introduced the ability in Victoria for certain documents to be remotely signed and witnessed electronically.
As at 26 April 2021, the Omnibus Act sunsetted and the Oaths and Affirmations Act 2018 (OaA Act) was permanently amended by the Justice Legislation Amendment (System Enhancement and Other Matters) Act . This means those in Victoria have the permanent option to execute affidavits and statutory declarations electronically, before witnesses who are present via audio-visual link.
An audio-visual link is a program or application that permits real-time video conferencing (for example, Microsoft Teams, Skype and Zoom).
Affidavits may now be signed or initialled electronically and witnessed over audio-visual link. However, all existing requirements for taking affidavits under the OaA Act continue to apply. The requirements are:
- Where an affidavit is being signed and witnessed remotely, the affidavit must state:
- that the affidavit has been signed and sworn or affirmed by audio-visual link
- in the jurat, whether the authorised witness has used a scanned or electronic copy of the affidavit.
- As always, pursuant to sections 25 to 27 of the OaA Act:
- the deponent and witness must sign or initial any alteration
- the deponent and witness must sign each page of the affidavit
- the deponent and witness must sign the final page of the affidavit
- the deponent and witness must sign exhibit sheets
- the witness must insert below the deponent's signature, their name and address (whether personal or professional) and a statement of the capacity in which the witness has the authority to take the affidavit (ie. Australian Legal Practitioner).
An example of recommended wording to include below jurats is:
This document was electronically initialled and signed by the deponent in accordance with the Oaths and Affirmations Act 2018.
This document was witnessed electronically by audio-visual link in accordance with the Oaths and Affirmations Act 2018.
This affidavit/exhibit is an electronic copy, not a scanned copy or original.
Statutory declarations may also now be signed or initialled electronically, and witnessed over audio-visual link. Again, all existing requirements for statutory declarations under the OaA Act continue to apply. The requirements are:
- Where a statutory declaration has been signed and witnessed remotely, the statutory declaration must state:
- that the statutory declaration was made and witnessed by audio-visual link
- whether the authorised witness has used a scanned or electronic copy of the statutory declaration.
- As always, pursuant to section 30 of the OaA Act, a statutory declaration requires that:
- the declarant and witness sign or initial any alteration
- the declarant and witness sign or initial each page
- the declarant and witness sign and date the final page
- the declarant and witness sign and date any other attached documents (if any).
Oaths, affirmations and declarations
Executing an affidavit or statutory declaration remotely via audio-visual link does not remove the need for a deponent/declarant to state the oath, affirmation or declaration aloud.
In the case of an affidavit, the witness must administer the oath or affirmation to the deponent, and the deponent must swear or affirm the affidavit by saying the prescribed oath or affirmation aloud in the presence of the witness.
Similarly, with a declaration, the declarant must make a declaration by saying the prescribed words aloud in the presence of the witness.
Contact our team
For assistance with drafting Affidavits or Statutory Declarations or if you require advice on who is an authorised witness in a Victorian public sector context, contact Alex Murphy, Acting Assistant Victorian Government Solicitor, on 03 8684 0927 or firstname.lastname@example.org, or get in touch with one of our team .
Reviewed 16 August 2021