Schedule 2.6 of the Identification Legislation Amendment Act 2011 (NSW) will commence on 30 April 2012. The schedule will make important amendments to the Oaths Act 1900 (NSW) and introduce the Oaths Regulation 2011 (NSW). The amendment of the Oaths Act 1900 provides new requirements for the identification of a person making an affidavit or statutory declaration. A person who takes and receives a statutory declaration or affidavit in New South Wales (defined as an “authorised witness”):
- must see the face of the person making the declaration or affidavit, and
- must know the person who makes the declaration or affidavit or confirm the person’s identity in accordance with the regulations, and
- must certify on the declaration or affidavit in accordance with the regulations that s34(1) of the Oaths Act 1900 has been complied with.
Failure to comply with these requirements may result in the person who takes and receives the statutory declaration or affidavit being summarily convicted before the Local Court and fined 2 penalty units or the sum of $220. The Oaths Regulation 2011 defines what identification documents are, and provides that a person is not known to an authorised witness for the purpose of paragraph (b) above, unless the authorised witness has known the person for a period of at least 12 months. Furthermore, for the purposes of paragraph (c) above, an authorised witness certifies that section 34(1) of the Oaths Act 1900 has been complied with by certifying the following matters in a certificate on the declaration or affidavit:
(a) that the authorised witness either:
(i) saw the face of the person making the declaration or affidavit, or
(ii) did not see the face of the person because of a face covering, but is satisfied that the person had a special justification for not removing the covering,
(b) that the authorised witness either:
(i) knows the person, or
(ii) does not know the person, but has confirmed the person’s identity based on an identification document presented to the authorised witness,
(c) if the authorised witness has relied on an identification document to confirm the identity of the person—that the document that the authorised witness relied on is the document that is specified by the authorised witness in the certificate.
A certificate may (but need not) be in the following Form:
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] Date:
Note: This information is not be relied on as legal advice