Blog

By Mitchell Lyon – Trainee Lawyer, Kingston Lawyers

The Victorian parliament has recently enacted the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (‘The Act’), in a concerted effort to ensure the industry keeps up with the changing needs of remote work and ease of communication.

Electronic Signatures

What has changed?

Historically, legal documentation required the physical and hand-written signature of the relevant parties. As the pandemic forced the exchange of this documentation online, this requirement became substantially harder to achieve. Accordingly, the recent changes to the law now recognize electronic signatures as having the same legal effect as a hand-written equivalent.

What is an electronic signature?

Although a definition of ‘electronic signature’ is not provided by the recent changes in the law, the term appears to be interpreted quite broadly. An example of an electronic signature might include the full name of a client, as typed into the relevant document using a computer. It might also include a signature that is hand-drawn using a device with an interactive or ‘touch-screen’. Importantly, The Act provides a specific example of communication that would be considered an electronic signature. This example is given as “confirming a person’s agreement by electronically selecting an option indicating agreement or affirmation.”

However, before an ‘electronic signature’ can take legal effect, the signatory must consent to the requirement to sign being met by way of the electronic method chosen.

How might this work in practice?

A simple and typical example of how this might work in practice can be examined in relation to a contractor agreement and a prospective client. In order to obtain the signature of the client (should they wish to provide it), the contractor can e-mail through an interactive and electronic document which enables the client to type in their name as a signature.

Witnesses

What has changed?

Prior to the demands of COVID-19 the process of witnessing a signature or identity verification required the physical attendance of the relevant party. To ensure that social distancing can be maintained in the event it is required, this process is now able to occur via ‘audio visual link’.

How might this work in practice?

The following two scenarios are expressly used as examples in the amending act. They are common situations which the law now facilitates.

Firstly, a remote witness may be required to fulfil their duties with respect to witnessing the signing of relevant documentation. In such an instance, a witness would be required to satisfy themselves of the relevant timing and identification requirements through the medium of an audio and visual link.

Alternatively, a witness may be required to connect remotely in order to confirm and verify the identity of another person.

Creation of Legal Documents

What has changed?

Further to utilizing the full capacity of technology in overcoming the challenges of COVID-19, the law has also changed to allow that certain documents may be created, signed, sealed and delivered electronically.

It is important to note that whilst this provides greater flexibility with respect to the method of producing the legal document, it does not in any way affect any other legal requirements or principles that determine the legitimacy of the document.

How might this work in practice?

The change to the law makes specific reference to the creation of deed and mortgage documents. Accordingly, these important documents can now be created electronically.

Hearings

What has changed?

Another change brought upon by the circumstances of the pandemic, is the ability of the courts to now determine a pre-trial matter based on written submissions alone.

How might this work in practice?

The new change removes the obligation on the court to conduct an oral hearing before deciding a pre-trial matter, but only in the event the court is satisfied that it is in the interests of justice to circumvent this requirement.

Mitchell Lyon is a Trainee Lawyer with Kingston Lawyers