New identification requirements for affidavits and statutory declarations

The Identification Legislation Amendment Act 2011 (NSW) amends the Oaths Act 1900 (NSW) to require a witness to identify a deponent prior to witnessing an affidavit, and to certify on the affidavit that this has occurred. These requirements commence on 30 April 2012.  In this post, references to sections are to the Oaths Act 1900 as amended, and references to regulations are to the Oaths Regulation 2011.  Although couched in terms of affidavits, the same requirements apply in relation to statutory declarations.

A witness must either “know” the person who makes an affidavit or confirm their identity by sighting an identification document before witnessing the affidavit: section 34(1)(b). A person is deemed not to be known to a witness unless the witness has “known” the deponent for a period of at least 12 months: regulation 5.

The words “know” and “known” are not defined in the legislation.  However, analogous caselaw indicates that the degree of familiarity to satisfy the test for knowledge need only be slight and need not be based on a pre-existing personal acquaintance with the deponent (see, for example, Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497 and Grgic v ANZ Banking Group (1994) 33 NSWLR 202).  Regardless, a prudent approach would be for a witness to require identification if there is any doubt as to whether they have “known” the deponent for a period of at least 12 months.

If an identification document is required, it must be one prescribed by the regulations: section 34(1)(b).  The following are acceptable forms of identification documents (what follows is a combination of the provisions of the Oaths Regulation 2011, and incorporated provisions of the Real Property Regulation 2008):

Australian passports: an Australian passport that is either current or has been expired for less than 2 years.

Non-Australian passports: a current passport issued by a foreign government or the UN for the purposes of international travel that contains a photograph and the signature of the person in whose name the document is issued.

Driver’s licences: a current 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.

Entitlement cards: current Medicare cards, pensioner concession cards, Department of Veterans’ Affairs entitlement cards or other entitlement cards issued by the Commonwealth or a State Government.

Photo cards or national identity cards as follows:

a Photo Card issued under the Photo Card Act 2005 (NSW);

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; or

a national identity card issued for the purpose of identification that is issued by a foreign government, the United Nations or an agency of the United Nations and contains a photograph and the signature of the person in whose name the document is issued. 

Birth certificates and citizenship certificates as follows:

a birth certificate or birth extract issued by a State or Territory;

a birth certificate issued by a foreign government, the United Nations or an agency of the United Nations;

a citizenship certificate issued by the Commonwealth or by a foreign government.

Credit card or account passbook from a bank, building society or credit union (or a credit card or statement of account less than 1 year old).

Electoral enrolment card that is less than 2 years old.

Student identity card, or a certificate or statement of enrolment, from an educational institution that is less than 2 years old.

Except in the case of a Driver’s Licence, a document in a language other than English, must be accompanied by a document purporting to contain an English translation of the document.

In every case the identification document sighted must be the original document or a certified copy (which may only be certified by someone authorised to take and receive statutory declarations, and may not be the authorised witness), and must not have been cancelled or expired (other than an Australia Passport which may be up to 2 years past expiry).

Where verification of identity is required this must be done before the affidavit is witnessed: regulation 6(1).

You must see the face of the deponent making the affidavit: section 34(1)(a).  In this context “face” is defined to be the deponent’s face from the top of the forehead to the bottom of the chin and between (but not including) the ears (section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002).

If the deponent has a “face covering” (which means “an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly)”) you may ask them to remove it.  Curiously, although you must not take and receive an affidavit if they do not remove a face covering, the failure to comply with the section does not affect the validity of the affidavit: section 34(4).

A witness is exempted from the requirement to see the person’s face if and only if the witness is satisfied that the deponent has a legitimate medical reason for not removing the face covering (this is the effect of the combination of regulations 3 and 4, and section 19B of the Law Enforcement (Powers and Responsibilities) Act 2002).

The affidavit must include a certificate that certifies the following:

• that the authorised witness either saw the face of the person, or 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;
• that the authorised witness either knows the person, or does not know the person, but has confirmed the person’s identity based on an identification document presented to the authorised witness;
• 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.

Finally, a big shout-out for the brains behind highheelsdaily.com for his assistance in the preparation of this post (follow on Twitter @highheelsdaily).