The New Changes

From 30 April 2012, the insertion of sections 34 and 35 into the Oaths Act 1900 will require any authorised witness sighting the execution of a statutory declaration or an affidavit to take positive steps to identify the person making the declaration or swearing the affidavit (the “declarant”). The new legislation sets out three prescribed steps for the witness to identify the declarant. The authorised witness must:

1.  See the face of the declarant, and
2.  Know, or confirm the declarant’s identity , and
3.  Certify on the declaration or affidavit that these steps have been complied with in accordance with legislation.

1.  See the face of the person making the declaration or affidavit

Under section 34(2), an authorised witness may request the declarant remove any face covering which prevents the witness from sighting their face. This include items such as clothing, helmet or mask. The only exception is in the case of a declarant who has a special reason for not removing their face covering, such as a legitimate medical reason. In this situation, the authorised witness is exempt from this requirement.

2.  Know, or confirm the declarant’ identity

•  Know the declarant’s identity

The authorised witness must have known the declarant for at least 12 months to satisfy this requirement.

•  Confirm the declarant’s identity

If the authorised witness has not known the declarant for a period of at least 12 months, the witness will be required to sight an original or certified copy of an identification document belonging to the declarant. To satisfy this requirement, it should be noted that certain documents cannot be relied upon.

Best practice would involve sighting an original or certified copy of a current photographic identification document such as a driver’s license, passport or proof of age card to ensure the authorised witness has met their obligations under the Act.

3.  Certify on the declaration or affidavit that these steps have been complied with in accordance with legislation

Following satisfactory identification of the declarant, the authorised witness must certify in a certificate on the statutory declaration or affidavit:

That the authorised witness either:
(i)  Saw the face of the declarant, or
(ii)  Did not see the face of the declarant because of a face covering the declarant was not removing for a legitimate reason

That the authorised witness either:

(i)  Knows the declarant, or
(ii)  Satisfied themselves as to the identity of the declarant by sighting an eligible identification document

Should you require assistance in drafting a statutory declaration or preparing an affidavit, or you would like more information please submit an online enquiry to our experienced team of Lawyers here at The Quinn Group. You can also call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment.