In brief - Summary and flowchart for witnessing statutory declarations and affidavits in NSW
In-house lawyers are often asked to witness documents being signed. From 30 April 2012 there are new requirements for witnessing the signing of affidavits, statutory declarations and affirmations in NSW. These are changes to the Oaths Act 1900 and relate to the steps to be taken to check identity.
If you have been asked to witness a statutory declaration or affidavit, you need to follow the eleven steps listed below. You need to bear in mind at all times that the witnessing of affidavits, statutory declarations and affirmations is a matter which should be taken seriously. No matter how familiar you are with the person who is signing the document, you should adhere to the same formality and attention to detail as you would with someone who is not familiar to you.
Step 1: Check the person's identity
To check the person's identity, you must either see the face of the person (you can ask them to remove face covering), or see the person but not the face, but be satisfied about their special justification for not removing covering.
The face is defined as being from the top of the forehead to the bottom of the chin, and between (but not including) the ears. Face covering is defined as 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. A beard is not classified as face covering.
The special justification for not removing the face covering could be a medical or other reason. The onus of proof of a special justification lies on the person claiming to have the special justification.
Step 2: Have you known the person for at least 12 months?
If not, you need to confirm their identity through identification documents. The full list of identification documents can be found in the Oaths Regulation 2011. Definitions can be found in Real Property Regulation 2008. Identification documents include a birth certificate, citizenship certificate, passport, Centrelink pension card and other documents.
Step 3: Certify on the document that you have completed steps 1 and 2
You need to use the words below for certification. Full details can be found in Oaths Regulation 2011.
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//
Step 4: Check format of affidavit
Is the affidavit in the correct format? If the affidavit is not in the correct format, it needs to be amended, otherwise the person cannot swear.
Step 5: Look for any alterations, erasures and blank spaces
If there are any alterations, erasures or blank spaces, these all need to be initialled.
Step 6: Look for any annexures
If there are any annexures, these all need to be signed.
Step 7: Check that the deponent understands
The deponent is the person swearing the oath. If the deponent does not understand, he or she cannot swear.
Step 8: Warn the deponent that it is an offence to swear a false affidavit
Step 9: Ask the deponent to swear the oath or affirmation
An oath is a form of words spoken by a person to promise that he or she is telling the truth. An oath refers to the God recognised by the religion of the person swearing the oath. An affirmation has the same legal effect as an oath, but does not refer to God. Any person may choose to take an affirmation instead of an oath.
What you have to say is: "Do you swear that the contents of this your affidavit are true and correct to the best of your knowledge and belief?"
The deponent should then swear to the truth of the contents by saying: "I swear that the affidavit is true, so help me [God, or the name of the God recognised by the deponent's religion]"
If the deponent chooses to make an affirmation, you must ask: "Do you solemnly and sincerely declare and affirm that the contents of this your affidavit are true and correct to the best of your knowledge and belief?"
The deponent should then swear to the truth of the contents of the document by saying: "I do." The signing part of the document (jurat) will need to be changed from "say on oath" to "affirm".
Step 10: Watch the deponent sign the affidavit in front of you
Step 11: Sign each page of the affidavit and the certificate of identity with the deponent
The flow chart below summarises the steps you need to take when witnessing affidavits, statutory declarations and affirmations.
Disclaimer: This is not a complete guide, but a summary. There will be situations not covered by this guide. Full reference should be made to the Oaths Act 1900 and Regulations.
© 2012 Colin Biggers & Paisley
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.