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Witnessing Statutory Declarations and Affidavits -new Identification requirements

IDENTIFICATION OF PERSON MAKING A STATUTORY DECLARATION OR AFFIDAVIT

From 30th April 2012 new provisions of the Oaths Act 1900 will come into effect in relation to the identification of the person making a Statutory Declaration or Affidavit by the person who is taking and receiving the Statutory Declaration or Affidavit. This will apply mostly to Justices of the Peace, solicitors and barristers and anyone else prescribed by the regulations to take or receive a Statutory Declaration or Affidavit.
The requirements are that the person taking the Statutory Declaration of Affidavit MUST:
1.     See the face of the person making the Statutory Declaration or Affidavit.

An authorised witness may request that a person who is seeking to make a statutory declaration or affidavit removes so much of any face covering worn by the person as prevents the authorised witness from seeing the person’s face.

The exception to this is where the person is wearing a face covering and the authorised witness is satisfied that the person has special justification for not removing the face covering. A note in the regulations specifies that this would include a legitimate medical reason for not removing the face covering.
Face and face covering and special justification have the meaning set out in has in section 19B (2) of the Law Enforcement (Powers and Responsibilities) Act 2002.

2.    Know the person who makes the declaration or affidavit or confirm the person’s identity in accordance with the regulations.

The person must have been known to the authorised witness for a period of at least 12 months.

To identify the person, the authorised witness must sight an original or certified copy of an identification document in respect of the person.
identification document means any of the following:

(a)      a primary photographic or non photographic identification document within the
meaning of the Real Property Regulation 2008, namely in relation to primary photographic identification documents:

(i)    a licence or permit issued under a law of a State or Territory or equivalent authority of a foreign country for the purpose of driving a vehicle that contains a photograph
of the person in whose name the licence or permit is issued,

(ii)    a passport issued by the Commonwealth,

(iii)     a passport or a similar document issued for the purpose of international travel that:
•    contains a photograph and the signature of the person in whose name the document is issued, and
•    is issued by a foreign government, the United Nations or an agency of the United Nations, and
•    if it is in a language other than English, is accompanied by a document purporting to contain an English translation of the document,

(iv)     a Photo Card issued under the Photo Card Act 2005,

(v)    a card issued under a law of the Commonwealth or another State or Territory for the purpose of proving the person’s age which contains a photograph of the person in whose name the card is issued,

(vi)     a national identity card issued for the purpose of identification that:
•    contains a photograph and the signature of the person in whose name the document is issued, and
•    is issued by a foreign government, the United Nations or an agency of the  United Nations, and
•    If it is in a language other than English, is accompanied by a document purporting to contain an English translation of the document

and in relation to a primary non-photographic identification document:

(vi)    a birth certificate or birth extract issued by a State or Territory,

(vii)     a citizenship certificate issued by the Commonwealth,

(viii)     a citizenship certificate issued by a foreign government and, if the certificate is in a language other than English, a document purporting to contain an English translation of the certificate,

(ix)     a birth certificate issued by a foreign government, the United Nations or an agency of the United Nations and, if the certificate is in a language other than English, a
document purporting to contain an English translation of the certificate,

(xii)     a pension card issued by Centrelink that entitles the person in whose name the card is issued to financial benefits.


(b)    a Medicare card, pensioner concession card, Department of Veterans’ Affairs entitlement card or other entitlement card issued by the Commonwealth or a State Government,

(c)    a credit card or account (or a passbook or statement of account) from a bank, building society or credit union,

(d)    an electoral enrolment card or other evidence of enrolment as an elector,

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

The witness cannot rely on an identification document if:
(a)    It has an expiry date that has expired ( except in the case of an Australian passport which has been expired for less than 2 years);

(b)    A document that has been cancelled;

(c)    A bank statement that is more than 1 year old; and

(d)     An electoral enrolment card or student identity card that is more than 2 years old.


3.    Certify on the declaration or affidavit in accordance with the regulations that section 34(1) of the Oaths Act 1900 has been complied with.

This certificate must be endorsed on or attached to the Statutory Declaration or Affidavit:
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:

For more information please contact Jennifer Graves or Alexandra Tzavellas.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.
Liability limited by a scheme approved under Professional Standards Legislation