On 30 April 2012, new requirements for witnessing statutory declarations and affidavits will commence in New South Wales.

The new requirements are set out in a new section 34 the Oaths Act 1900 (NSW) (Oaths Act) (introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011.

This new section of the Oaths Act requires that an authorised witness must:

  • see the face of the person making the declaration or affidavit;
  • know the person who makes the declaration or affidavit or confirm the persons identity in accordance with the regulations; and
  • certify on the declaration or affidavit that the requirements of the Oaths Act have been complied with.

Under section 34(1) of the Oaths Act, an 'authorised witness' (usually a Justice of the Peace or a lawyer) is a person who takes and receives a statutory declaration or affidavit in New South Wales.

Seeing a person's face

An authorised witness must see the face of the person making the declaration or affidavit.

If the person's face is not clearly visible, by being covered, an authorised witness may request for the covering to be removed.

If the authorised witness is satisfied that the person has a 'special justification' for the covering, such as medical reasons, the authorised witness will be exempt from the requirement.

Confirmation of identity

An authorised witness 'knows' the person making the declaration or affidavit only if they have known the person for at least 12 months.

If an authorised witness does not know the person making the declaration or affidavit, the authorised witness must sight an original or certified copy of an identification document of the person.

Any certified copy of the original identification document must not have been certified by the authorised witness.

The identification document must not be:

  • expired (or in the case of an Australian passport expired for more than 2 years);
  • cancelled;
  • an account or statement of account (other than a credit card or passbook) from a bank, building society or credit union that is more than 1 year old;
  • an electoral enrolment card or other evidence of enrolment as an elector that is more than 2 years old; or
  • a student identity card, or a certificate or statement of enrolment from an educational institution that is more than 2 years old.

Certification

Once an authorised witness has satisfied the prescribed steps, the authorised witness must certify compliance by executing a certificate on the declaration or affidavit.

The certificate must certify the following:

  • that the authorised witness either:
    1. saw the face of the person making the declaration or affidavit; or
    2. did not see the face of the person because of a face covering, but is satisfied that the person has a 'special justification' for not removing the covering;
  • that the authorised witness either:
    1. knows the person; or
    2. does not know the person, but has confirmed the person's identity from a valid identification document; and
  • the authorised witness specifies the type of identification document relied upon in the certificate.

No compliance

Failure to comply with section 34 of the Oaths Act does not affect the validity of any statutory declaration or affidavit. However, a penalty of up two 2 penalty units ($220) may be imposed.

Which legislation applies?

When a person gives a statutory declaration, it is important to identify which legislation applies to the making of that declaration. The Commonwealth, States and Territories each have separate legislation which specifically deals with statutory declarations.

Depending on the purpose, statutory declarations are required to be made in accordance with the relevant Commonwealth, State or Territory legislation.

For example, where a Commonwealth statute requires a declaration to be made, it must be made pursuant to the Statutory Declarations Act 1959 (Cth).

On the other hand, where a New South Wales statute requires a declaration to be made, it can be made pursuant to the Oaths Act or, if made outside NSW, in accordance with the relevant legislation for administering an oath in that jurisdiction.

For more information, please contact:

Sydney

Vicki Grey

P +61 2 9931 4753

e vgrey@nsw.gadens.com.au

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.