Focus: New Part 6 of the Oaths Act 1900
(NSW) Services: Disputes & Litigation
From 30 April 2012, solicitors, Justices of the Peace and other
authorised witnesses of statutory declarations and affidavits in
New South Wales will be required to take specific steps to confirm
the identity of persons making declarations and affidavits.
The new requirements are set out in a new Part 6 of the
Oaths Act 1900 (NSW) (the Act) (pursuant
to the Identification Legislation Amendment Act 2011) and
the Oaths Regulation 2011.
The new provisions provide that, commencing 30 April 2012, a
person witnessing a statutory declaration or affidavit in New South
must see the face of the person making the declaration or
must have known the person making the declaration or affidavit
for at least 12 months, or confirm the person's identity in
accordance with the regulations, and
must certify on the declaration or affidavit that the
requirements of the Act have been complied with.
Removal of face covering
The new subsection 34(2) of the Act provides that a witness may
request a person who is seeking to make a statutory declaration or
affidavit to remove part of any face covering which prevents the
witness from seeing the person's face.
An authorised witness is exempted from the requirement to see
the face of the person making the declaration or affidavit if the
person has a "special justification" (as defined in
section 19B of the Law Enforcement (Powers and
Responsibilities) Act 2002).
At this stage, the only "special justification" is a
"legitimate medical reason" for not removing the face
covering. There is currently no exemption for religious
Confirmation of identity
If the witness has not known the declarant/deponent for 12
months, the witness must confirm the person's identity by
sighting an original or certified copy of a prescribed
Acceptable identification documents are prescribed in the
Oaths Regulation 2011 and include both photographic and
non-photographic documents (including passport, drivers licence,
birth certificate, Medicare card) subject to specified requirements
as to currency, validity and age of the document.
Authorised witnesses should familiarise themselves with the
specific requirements in respect to the different identification
Once the witness is satisfied that he or she has complied with
the Act's requirements to identify the person making the
affidavit or declaration, he or she must certify in a certificate
on the statutory declaration or affidavit that:
he or she saw the face of the person making the declaration or
affidavit OR did not see the face of the person but was satisfied
that the person had a special justification for not removing the
he or she has known the person for 12 months OR has not known
the person for 12 months but has confirmed the person's
identity by reference to an identification document, citing the
document relied upon.
The amendments place an onus on authorised witnesses to see the
face, and confirm the identity, of persons making statutory
declarations and affidavits.
Solicitors, Justices of the Peace and other authorised witnesses
of statutory declarations and affidavits in NSW should ensure that
they are familiar with the new requirements, including the specific
identification documents that can be relied upon, update any
precedent documents accordingly, and ensure compliance.
Failure to comply with the new provisions will not render the
statutory declaration or affidavit invalid but may result in a
penalty of up to two penalty units ($220).
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