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.

Prescribed steps

The new provisions provide that, commencing 30 April 2012, a person witnessing a statutory declaration or affidavit in New South Wales:

  • must see the face of the person making the declaration or affidavit
  • 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 grounds.

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 identification document.

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 documents.

Certification

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 covering
  • 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.

Upshot

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).

For more information, please contact a member of the DibbsBarker Disputes & Litigation Team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.