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
see the face of the person making the declaration or
know the person who makes the declaration or affidavit or
confirm the persons identity in accordance with the regulations;
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
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
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
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);
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
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:
saw the face of the person making the declaration or affidavit;
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:
knows the person; or
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.
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
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
Depending on the purpose, statutory declarations are required to
be made in accordance with the relevant Commonwealth, State or
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.
The decision deals with the tension between a "reasonable endeavours" obligation and a promisor's commercial interests.
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