Recently admitted? You now have
the power to witness an affidavit. This is a step-by-step guide for baby
lawyers in NSW which integrates practical steps with the relevant sections of
the Oaths Act 1900 (NSW). This guide
only applies to witnessing affidavits in NSW. The laws are different in every
state.
Who can witness an affidavit?
Sections 26 and 27 of the Oaths Act 1900 (NSW) lists those who are
authorised to witness affidavits:
1. If
in NSW a Justice of the Peace or an Australian legal practitioner;
2. If
in another state of Australia, anyone authorised to witness an affidavit under
the laws of that state. This will include a Justice of the Peace and legal
practitioners; and
3. If
outside Australia a notary public having authority to administer oaths in that
country or a British or Australian Consular Officer.
Steps to take before signing
Step 1: Check the identity of the deponent
The witness must check the
identity of the person making the affidavit. Significant steps were added to
the identity checking process in 2012 and are contained in s34 of the Oaths Act 1900 (NSW) and the Oath Regulation 2011 (NSW):
1. The
witness must see the face of the person making the affidavit, and can request
the person to remove as much of the face covering as necessary to see the
person’s face. The face is “from the top of the forehead to the bottom of the
chin, and between (but not including) the ears". The only exemption from this
requirement is if the witness is satisfied the person has a special
justification for not removing the covering such as a legitimate medical
reason.
2. The
witness must be satisfied of the person’s identity. Identification will be
satisfied where:
a.
The witness has known the person for at least 12
months; or
b.
The witness has cited an original or certified
copy of one of the following identification documents:
·
A current State or Territory drivers licence
·
A Commonwealth passport which is currently valid
or which has been expired for less than 2 years
·
A current passport issued by a foreign
government recognised by the UN
·
A current Centrelink notice noting name and
address of individual
·
A current ATO notice noting name and address of
individual
·
Medicare card, Pension Concession card, or any
other entitlement card issued by the State or Commonwealth that is currently
valid
·
Credit card or account statement from a bank
that is less than 1 year old
·
Evidence of enrolment as an elector such as an
electoral enrolment card less than 2 years old
·
A student ID card from an educational
institution less than 2 years old
Note: If you have not undertaken
all these steps in person before the deponent executes the affidavit you cannot
witness the affidavit. At some point in your career you may be put under
pressure to witness an affidavit that was signed by the client when you were
not present in the room. It would be a breach of the Oaths Act 1900 (NSW) and professional misconduct to state you
witnessed an affidavit in these circumstances. Do not do it.
Step 2: Check the affidavit is in the correct format
Check the correct form has been
used for the type of affidavit and court. Check all the pages are there, and
that there have been no alterations or omissions. If for some reason there is a
blank space at the end of the deponent’s statement, rule a Z shape across this
space so text cannot be added after the affidavit has been signed and
witnessed.
Step 3: Check annexures
Check that all annexures are
referred to in the body of the Affidavit and that each annexure is clearly
marked. Check that the front page of each annexure contains the correct
statement. Ie for a one page annexure:
“This is the annexure marked
[insert ‘A’, ‘B’, ‘C’ as relevant] referred to in the affidavit of [insert name
of deponent], declared before me this [insert date] day of [insert month,
year].
[witness to sign, witnesses full
name, capacity of witness]”
For an annexure of more than one
page:
“This and the following [insert
number of pages] pages is the annexure marked [insert ‘A’, ‘B’, ‘C’ as
relevant] referred to in the affidavit of [insert name of deponent], declared
before me this [insert date] day of [insert month, year].
[witness to sign, witnesses full
name, capacity of witness]”
Step 4: Check the deponent understands
The deponent must understand the
nature and purpose of the affidavit before they take the oath/affirmation. You
must also be satisfied the deponent understands the nature of the affidavit. If
you do not think the person can understand the nature of the affidavit see s32 of
the Oaths Act 1900 (NSW).
Step 5: Warn the deponent
Section 29 of the Oaths Act 1900 (NSW) makes it an offence
to wilfully swear a false affidavit. Falsely swearing an affidavit is
considered perjury. You must warn the deponent that it is an offence that can
lead to imprisonment to swear or affirm a false affidavit and that in making
the oath or affirmation they are affirming the contents are true and correct.
The oath/affirmation
Step 6: Deponent selects oath or affirmation
Ask the deponent to choose an
oath or an affirmation. In both, the deponent is promising they are telling the
truth. The difference is that an oath refers to the God recognised by that
person’s religion, whereas the affirmation does not have the religious element.
You should remember this from your Admission Ceremony. Instruct the deponent in
advance how they are to respond when giving the oath.
If the deponent selects oath:
The deponent may have a copy of
their holy book to hold when taking the oath. However, it is not necessary for
a holy book to be used in taking the oath. The formal part of the oath then
proceeds:
You: “Do you swear that the
contents of this affidavit are true and correct to the best of your knowledge
and belief?”
Deponent: “I swear that the
affidavit is true, so help me God”
The manner and form of taking
oaths is set out in detail in Part 2, section 3 to 11A of the Oaths Act 1900 (NSW).
If the deponent selects
affirmation:
You: “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?”
Deponent: “I do”
The manner and form of making an
affirmation is set out in Part 3, sections 12 to 13 of the Oaths Act 1900 (NSW).
Signing of the jurat, the affidavit and annexures
The jurat is the section at the
end of the affidavit which is completed after the oath/affirmation has been
taken.
Part of the jurat can be found in
Schedule 1 of the Oaths Regulation 2011
(NSW):
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 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
Step 7: Deponent signs the jurat
Watch as the deponent signs the
appropriate part of the jurat.
The signature block will look
something like this:
SWORN/AFFIRMED (delete whichever
is inapplicable) at (insert name of place):
----------------------------------- -----------------------------------------------
Before me: (witness signs here) (deponent
signs here)
(solicitor)
Whatever the signature block
looks like, the jurat from Schedule 1 of the regulations will be below for the
witness to fill out
Step 8: Witness and deponent sign each page of the affidavit
The deponent and witness both
sign every page of the affidavit in the bottom right hand corner. The
statements on the front of each annexure should be completed and signed by the
deponent and witness as this stage.
Step 9: Witness completes jurat
This is the final step, and you
should not sign the jurat until all of the above steps are taken. Rule out the
options that do not apply before signing.
Additional items to watch out for
The procedure above applies in
most simple circumstances. There are a number of other matters you should be
aware of:
1. Person’s
unable to make an oath
Section 32 of the Oaths Act 1900 (NSW) provides a
procedure for a person to make a declaration instead of an oath where because
of the person’s age, capacity to hear, understand or communicate, they are not
competent to take an oath. If you are a junior lawyer and you encounter someone
you do not believe is capable of making an oath, always seek help from a more
experienced lawyer before proceeding with witnessing the affidavit.
2. Person’s
unable to read English
Section 27A of the Oaths Act 1900 (NSW) provides a
procedure for swearing affidavits where the deponent is blind, illiterate or
otherwise unable to read written English. The affidavit must be read to the
person and a note must be made below the jurat that the affidavit was read, the
deponent appeared to understand the affidavit and the deponent signed or marked
the affidavit in the presence of the witness.
No comments:
Post a Comment