Changes to the Oaths Act 1900

New changes to the Oaths Act 1900 (NSW) (“the Act”) took effect as and from 30 April 2012, with the insertion of new sections 34 and 35 into the Act pursuant to Schedule 2 of the Identification Legislation Amendment Act 2011.

The changes require new prescribed steps for authorised witnesses to undertake when witnessing statutory declarations and affidavits.

The new steps require an authorised witness, that is a solicitor, barrister, justice of the peace, notary public, and Australian or British consular officer to:

  • see the face of the person making the declaration or affidavit (“the Deponent”); and
  • know the Deponent for at least 12 months or confirm the Deponent’s identity by sighting an original or certified copy of an identification document (e.g. the Deponent’s birth certificate, driver’s licence, passport, Medicare card, pensioner concession card, credit or bank account card, electoral enrolment card or student identity card); and
  • certify on the declaration or affidavit that these steps have been followed.

If the Deponent is wearing a face covering (e.g. a helmet, mask or item of clothing whether partly or wholly covering the Deponent’s face), an authorised witness may request that the face covering be removed. The authorised witness must otherwise be satisfied that there is a special justification (for example, a legitimate medical reason) for not removing the face covering.

Schedule 1 of the Oaths Regulations 2011 (NSW) provides the following suggested wording of the certification to be provided by the authorised witness:

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]

An authorised witness may be fined for failure to comply with the prescribed steps.

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