The Identification Legislation Amendment Act 2011 inserts sections 34 and 35 into the Oaths Acts 1900 (the “Act”) to amend the requirements for witnessing statutory declarations and affidavits. From 30 April 2012, witnessing either an affidavit or statutory declaration will require an authorised witness to take prescribed steps to identify a person and certify that those steps have been taken. The prescribed steps for indentifying persons are set out in the Oaths Regulation 2011.

Under section 34 of the Act, an authorised witness will be required to (1) see the face of a person making a statutory declaration or affidavit, (2) know the person for a period of at least 12 months, and (3) certify on the document that they have met these requirements. If the witness does not know the person, they must confirm their identity in accordance with the regulations.

Authorised witness:

The Oaths Regulations prescribes the authorised witness to sight any of the following Identification documents that have not expired or been cancelled to confirm a person’s identity:

An original or certified copy of:

–          Birth Certificate,

–          Citizenship Certificate issued by the Commonwealth or a foreign government,

–          A Driver Licence,

–          A Passport (expired for less than 2 years),

–          A Photo ID Card under the Photo Card Act 2005,

–          A National Identity Card,

–          A Photo ID Card issued for the purpose of proving the persons age,

–          A Medicare Card; A pension card issued by Centrelink; Department of Veterans’ Affairs card ,

–          A credit card or account from a bank, building society or credit union (Must be no more than 1 year old – other than a credit card or passbook),

–          An electoral enrolment card or other evidence of enrolment as an elector,

–          A student identity card, or a certificate or statement of enrolment, from an educational institution (Must be no more than 2 years old).

Authorised witness to see the face:

The new sections require the authorised witness to see the face of a person seeking to make the statutory declaration or affidavit. This prescription under s 34 (2) allows the witness to request the person to remove any face covering if it prevents the witness from seeing the persons face. A face covering may include 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).

An authorised witness is exempted from the requirement in s 34 (1) (a) to see the persons face if they are satisfied that the person has a special justification for not removing the face covering, such as a legitimate medical reason.

Matters to be certified on Declaration/Affidavit:

An authorised witness must certify on the declaration or affidavit that section 34 of the Oaths Act has been complied with. The certification must assert that the authorised witness either:

–          Saw the face of the person, or did not see the face, but is satisfied that the person had a special justification for not removing the covering, and;

–          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.

The Oaths Regulation 2011 prescribes in Schedule 1, a form for Certificate to satisfy Section 34 (1) (c) of the Act. The words someone would use to certify a declaration or affidavit would be to the effect of:

*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: