Statutory Declaration

New Statutory Declaration Requirements

On 30th April, 2012, new requirements for witnessing statutory declarations and affidavits commenced in New South Wales.

The new requirements are set out in the new section 34 the Oaths Act 1900 (NSW).

This new section of the Oaths Act requires that an authorised witness must:

  • see the face of the person making the declaration or affidavit; unless there is a special justification
  • know the person who makes the declaration or affidavit or confirm the persons identity in accordance with the regulations; and
  • certify on the declaration or affidavit that the requirements of the Oaths Act have been met.

Seeing a person’s face
An authorised witness must see the face of the person making the declaration or affidavit.

If the person’s face is not clearly visible, by being covered, an authorised witness may request for the covering to be removed.

If the authorised witness is satisfied that the person has a ‘special justification’ for the covering, such as medical reasons, the authorised witness will be exempt from the requirement.

Confirmation of identity
An authorised witness ‘knows’ the person making the declaration or affidavit only if they have known the person for at least 12 months.

If an authorised witness does not know the person making the declaration or affidavit, the authorised witness must sight an identification document of the person.

A primary identification document includes an official document that includes a photograph of the person such as a drivers licence or passport.

If these documents are not available other specified alternate forms of identification may be produced.

Once an authorised witness has satisfied the prescribed steps, the authorised witness must certify compliance by executing a certificate on the declaration or affidavit.

The certificate must certify the following:

  • That the authorised witness either
  • saw the face of the person making the declaration or affidavit; or
  • did not see the face of the person because of a face covering, but is satisfied that the person has a ‘special justification’ for not removing the covering;
  • that the authorised witness either;
  • knows the person; or
  • does not know the person, but has confirmed the person’s identity from a valid identification document; and
  • the authorised witness specifies the type of identification document relied upon in the certificate.

No Compliance
Failure to comply with section 34 of the Oaths Act does not affect the validity of any statutory declaration or affidavit. However, a penalty of up to $220 may be imposed for breach of the requirements.

Readers should not act or rely on this information without first seeking out professional advice concerning their particular circumstances