By: Marsdens Law Group  18-Feb-2012


Changes in the law governing the witnessing of Statutory Declarations and Affidavits will come into force on 30 April 2012.

Schedule 2 of the Identification Legislation Amendment Act 2011 will create sections 34 and 35 of the Oaths Act 1900 (Act), which require an authorised witness to take prescribed steps to identify the person making the statutory declaration (declarant) or affidavit (deponent). Furthermore, the witness must also certify that those prescribed steps have been taken.

The prescribed steps are outlined below. The authorised witness must:-

1. See the face of the declarant/deponent; and

“Face” means the face from the top of the forehead to the bottom of the chin and between, but not including, the ears.

The witness may request the declarant/deponent to remove so much of any face covering so as to comply with this requirement. “Face covering” means an item of clothing, helmet, mask or any other thing that is worn and prevents the person’s face from being seen, either partly or wholly.

The witness is exempt from the requirement to see the face of the declarant/deponent where the declarant/deponent is wearing a face covering and the witness is satisfied that the  declarant/deponent has a special justification for not removing the face covering. The meaning of “special justification” is currently limited to having a legitimate medical reason for not removing the face covering. The onus of proof of the special justification lies with the declarant/deponent.

Note: “Face”, “face covering” and “special justification” have the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002.

2. Either have known the declarant/deponent for at least 12 months or confirm their identity in accordance with the Oaths Regulation 2011 (Regulation); and

If the witness is required to confirm the identity of the declarant/deponent, the Regulation requires the witness to sight ONE (1) original or certified copy of the following:-

(a) a primary photographic identification document within the meaning of the Real Property Regulation 2008. This includes a drivers licence, passport, Photo Card (issued under the Photo Card Act 2005), proof of age card and national identity card. Documents may be foreign but must contain a photo and must either be in English or accompanied by an English translation document; or

(b) a primary non-photographic identification within the meaning of the Real Property Regulation 2008. This includes a birth certificate/extract, citizenship certificate or Centrelink pension card. Again, if any of these documents are not in English, they need to be accompanied by an English translation document; or

(c) an entitlement card issued by the State or Commonwealth Government, including Medicare, Department of Veterans’ Affairs or Centrelink (e.g. pensioner concession card); or

(d) a credit card or account passbook/statement from a bank, building society or credit union; or

(e) an electoral enrolment card or other evidence of electoral enrolment; or

(f) a student identity card or certificate/statement of enrolment from an educational institution.

A witness cannot rely on an identification document if it has expired (except in the case of an Australian Passport that has been expired for less than 2 years), has been cancelled, is more than 1 year old in the case of the documents in paragraph (d) above, or is more than 2 years old in the case of the documents in paragraphs (e) or (f) above.

A copy of a document will only comply with the Regulation if it is certified as a true copy by any person (other than the authorised witness) authorised to witness a statutory declaration or affidavit.

3. Certify on the statutory declaration or affidavit, in accordance with the Regulation, that this Section 34 of the Act has been complied with.

The authorised witness must certify the following on the statutory declaration or affidavit:-

(a) that the authorised witness either:-
(i) saw the face of the declarant/deponent; or
(ii) did not see their face because of a face covering and is satisfied that they had a special justification for not removing the face covering;

(b) that the authorised witness either:-
(i) knows the person; or
(ii) does not know the person but has confirmed their identity by sighting an identification document;

(c) if the authorised witness has relied on an identification document, that document has to be specified in the certification.

A certificate may, but need not, be in the Form set out in Schedule 1 of the Regulation:

Certificate under section 34(1)(c) of Oaths Act 1900

*Please cross out any text that does not apply

I [insert name of authorised witness], a [insert qualification to be authorised witness], certify
the following matters concerning the making of this *statutory declaration/affidavit by the
person who made it:

(1) *I saw the face of the person or *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering.

(2) *I have known the person for at least 12 months or *I have not known the person for at least 12 months, but I have confirmed the person’s identity using an identification document and the document I relied on was [describe identification document relied on].

[insert signature of authorised witness]

It is unknown at this stage whether this certificate will be incorporated into standard forms of statutory declarations and affidavits. It is therefore important to ensure that a separate certificate is provided in the event that a certificate does not form part of the statutory declaration or affidavit that you are witnessing.

The maximum penalty on summary conviction before the Local Court for non-compliance with these prescribed steps is 2 penalty units. A failure to comply with this section of the Act does not affect the validity of the statutory declaration or affidavit.

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