COVID 19

The “special” conditions that related to JP activities (and capability) to act (via audio/visual) enacted by the ACT Govt – ended on 29th December 2022.

The following information from the Justice and Community Safety directorate of the ACT Government appears below

 

OFFICIAL UNCONTROLLED IF PRINTED

1.    COVID-19 AND JUSTICES OF THE PEACE SERVICES

1.1 In response to the COVID-19 pandemic, the Australian Capital Territory (ACT) and Commonwealth governments introduced new laws and regulations to allow certain documents to be witnessed remotely by authorised witnesses, including Justices of the Peace (JPs).

1.2 These laws were designed to help the community adapt and respond to the COVID-19 pandemic and facilitate their continued access to important services.

1.3 The changes introduced by the ACT Government via COVID-19 Emergency Response Act 2020 (ACT) expired on 29 December 2022.

1.4 JPs should take reasonable steps to ensure that they are aware of any changes to ACT public health orders and emergency declarations. This information is published on the ACT Government COVID-19 website, which can be found at the following link: www.covid19.act.gov.au

1.5 The changes introduced by the Commonwealth Government via the Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth) remain in force. However, they are temporary and will expire on the day specified in item 1 (7) of Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. This means that these changes are currently set to expire after 31 December 2023.

1.6 JPs should take reasonable steps to ensure that they are aware of any changes to the Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth), which can be found on the Federal Register of Legislation.

2.    WITNESSING DOCUMENTS VIA AUDIO VISUAL LINK

2.1     The COVID-19 Emergency Response Act 2020 (ACT) (the Act) made temporary changes to the law that allowed a signature on any of the following documents to be witnessed via audio visual link:

  • an affidavit;
  • a will;
  • a health direction under the Medical Treatment (Health Directions) Act 2006 (ACT); and
  • or a general power of attorney or an enduring power of attorney under the Powers of Attorney Act 2006.
    • These temporary measures have now expired. Therefore, JPs can no longer witness the above documents remotely.
    • To witness a signature on any of the above documents, a JP must:
  • be physically present with the signatory; and,
  • observe the signatory signing the document in-person.

2.4     JPs must also ensure they meet their obligations under the Justices of the Peace (Role) Guideline 2016. This includes taking reasonable steps to be satisfied about the identity of a person before providing services, along with maintaining a record of the service performed.

3.    STATUTORY DECLARATIONS VIA AUDIO VISUAL LINK

3.1     There are Commonwealth and State statutory declarations. In the ACT, we use Commonwealth statutory declarations made under the Statutory Declaration Act 1959 (Cth).

3.2     The Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth) (the Commonwealth Determination) makes temporary changes to the law that allow Commonwealth statutory declarations to be executed and witnessed electronically.

3.3     The temporary change means that a JP can observe a signatory executing a Commonwealth statutory declaration via audio visual link.

3.4 Both the JP and the signatory can sign a Commonwealth statutory declaration with either a physical or electronic signature.

3.5     To ensure that the statutory declaration complies with all legal requirements, it is highly recommended that JPs use the Commonwealth statutory declaration for electronic execution form, which can be found at the following link: https://www.ag.gov.au/legalsystem/publications/commonwealth-statutory-declaration-electronic-execution-form

3.6     To witness the signing of a statutory declaration by audio visual link, a JP must:

  • observe the person signing the document in real time. A JP may need to request the signatory to adjust the camera to allow the them to see the signing hand of the document for a physical signature, or the screen for an electronic signature.
  • be reasonably satsified that the document signed by the signatory is the same document, or a copy of the document that they sign as a witness.
  • sign the document or a copy of the document as a witness, either physically or electronically.
  • endorse the document or the copy of the document with:
  • a statement about the method used to witness the signature and confirming that the document was witnessed in a way that complies with the Act. A statement is provided in the Commonwealth statutory declaration for electronic execution form; and, their phone number or email address.
    • For further guidance on how to complete a Commonwealth statutory declaration, JPs are encouraged to consult the Commonwealth Attorney-General’s website: https://www.ag.gov.au/legal-system/statutory-declarations/how-complete-statutorydeclaration
    • For the avoidance of doubt, when providing services by audio-visual link, JPs must also ensure they meet their obligations under the Justices of the Peace (Role) Guideline 2016. This includes taking reasonable steps to be satisfied about the identity of a person before providing services, along with maintaining a record of the service performed.
    • If a member of the public requires a statutory declaration for use in another jurisdiction, such as New South Wales, a Commonwealth statutory declaration may not be appropriate. A JP should consider and adhere to the rules and requirements of the jurisdiction for which the statutory declaration is being undertaken.

4.    EXECUTING STATUTORY DECLARATIONS WITH AN ELECTRONIC SIGNATURE

4.1     Even in circumstances where a JP is offering in-person services, the Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth) allows both a signatory and a JP to sign a Commonwealth statutory declaration with an electronic signature.

4.2     The term “electronic signature” can include:

  • sign a PDF on an electronic device, such as a tablet, smartphone or laptop using a stylus or finger;
  • place an electronically created signature into an electronic document. To minimise the risk of unauthorised or fraudulent use of electronic signatures, JPs are highly encouraged to:
  • sign electronic documents with a digital signature. A digital signature is a type of electronic signature that contains encrypted information that can be used to authenticate the identity of the signatory. Platforms like Adobe Acrobat Sign, DocuSign and Microsoft allow users to create a digital signature; and
  • maintain complete and accurate records of the services provided.

5.    CERTIFYING DOCUMENTS ISSUED ELECTRONICALLY

5.1     A JP can certify physical copies of documents that are issued electronically, such as bank statements and Centrelink Statements. However, extra care should be taken to ensure that the electronic document has been issued by the relevant authority, and the physical document is a true and accurate copy of that document.

5.2     Wherever possible, a JP should only certify a physical copy of a document issued electronically, if they have:

  • seen the physical copy being printed directly from the website of the document’s issuing authority;
  • seen the physical copy being printed directly from a computer that is under the control of the document’s issuing authority;
  • seen the original document displayed on an official website under the control of the document’s issuing authority, and checked that all information in the original, electronic document is the same as the physical copy; or
  • the issuing authority has endorsed a physical printout of the original document with its official stamp in ink.
    • There may be instances where the relevant authority will only issue an electronic document by email. For example, a member of the public may receive their Rates and Land Tax Assessment Notices via email from the ACT Revenue Notice. However, such notices are not accessible through the official ACT Revenue Office website.
    • Where a member of the public cannot access a live original document through an official website, the JP may use reasonable caution in determining whether the document was issued by the relevant authority. In these circumstances, a JP may certify a document, but should use the below alternate certification:

I certify this to be a true copy of the electronic document shown and reported to me as the original.

5.5     For example, a JP may use their best judgement and reasonable caution, and find that a document was issued by the relevant authority, where:

  • the email was received directly from an email address controlled by the authority; and
  • the email contained logos and branding consistent with that maintained by the relevant authority.

5.6     A JP must decline to certify the physical copy of the electronic document if:

  • it has been edited or tampered with in any way; or
  • it has not been issued by the relevant authority, or it is unclear whether it has been issued by the issuing authority.

5.7     There may be circumstances where a member of the public is unable to demonstrate to a JP that an electronic document was issued by the relevant authority. For example, a parent may not be able to demonstrate to a JP that the document they are having witnessed on behalf of their child was issued by the relevant authority, because they do not have access to their child’s email or other accounts. In these circumstances, a JP may suggest to the client that may make a statutory declaration, attaching the copy as an annexure and declaring that it is a true copy of the original that exists only in electronic form. For example, the declaration may read:

I declare the attached documents, marked [Annexure A, B, C] are true copies of the original documents, which exist only in electronic form and which [I or other party] received from [insert relevant authority]. The documents have been printed without alteration or amendment.

5.8     Restrictions or limitations to when and how a JP may witness, execute or certify an electronic document are necessary precautions to limit the risk of fraud. In circumstances where a JP has not seen the electronic document obtained directly from the relevant authority, there is some risk that the document presented as the original had been altered at an earlier stage, using computer editing software. This includes circumstances where an electronic document has been sent by email, fax or other electronic communication (even when that communication appears to have come from the issuing authority).

5.9     However, there are some discrepancies between the original electronic document and the physical copy that are acceptable and should not prevent a JP from certifying the copy. These are:

  • if the copy is a different size to the original; and
  • if the copy is a black and white copy of the colour original.

© Australian Capital Territory 2022

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