Authorised witness. The regulation does not define this term; it relies on the Oaths Act 1900, section 21(1) for the classes of persons authorised to take and receive statutory declarations. That includes justices of the peace, lawyers, notaries public, and a range of other professionals. Under section 6(3)(b) of the regulation, an authorised witness may also certify a copy of an identification document, but only if that person is also a person authorised under section 21(1). So certification of copies is not restricted to the same witness taking the declaration, but the class is the same.

Face covering. The regulation nowhere defines “face covering”. The exemption in section 4 uses the word but leaves its interpretation to the reasonable judgment of the authorised witness. A face covering could include a niqab, burqa, medical mask, balaclava, or anything that obscures the face. The witness must be satisfied the person has a special justification for not removing it. This shifts the risk of an improper exemption onto the witness: if the witness accepts a justification that later proves invalid, the compliance certificate may be false.

Special justification. The definition cross‑references the Law Enforcement (Powers and Responsibilities) Act 2002, section 19B. That section originally dealt with police powers to require removal of face coverings in public places, and the term includes “a genuine religious, cultural or medical reason”. The regulation’s note only mentions “legitimate medical reason”, which is narrower than the LEPRA definition. A cautious witness would look at LEPRA section 19B, which also covers religious and cultural reasons. Because the regulation says “has the same meaning as in” that Act, the full scope applies, not just the note’s example.

Identification document. This is one of the regulation’s most detailed concepts. Schedule 2 lists 17 categories, ranging from a birth certificate (Australian or foreign) to a credit card, passbook, student ID card, and even police identification card. Critically, the list includes documents that do not carry a photograph, such as Medicare cards, bank statements, and entitlement cards. That means identity can be confirmed without a photo ID, but the witness must still “sight” the original or a certified copy. The document must not be expired (with the two‑year Australian passport exception), not cancelled, and if foreign‑language, must be accompanied by an English translation. Stricter expiry limits apply to bank statements (one year) and enrolment or student cards (two years). The list also recognises specialised documents for inmates, forensic patients, and other detained persons, allowing them to use institutional identification cards.

Knows (12 months). Section 5 sets the minimum acquaintance period at 12 months. There is no requirement that the witness have known the person continuously or in a particular context. The test is binary: either the witness has known the person for 12 months or more, or not. If not, the only route is document‑based confirmation. The regulation does not require the witness to have any independent knowledge of the person’s identity beyond that time period; the relationship could be casual. This is a relatively low threshold compared to some other jurisdictions that require the witness to “know” the person in the sense of personal acquaintance.

Certified copy. Section 6(3) allows a copy to be certified by an authorised witness or a person authorised under section 21(1) of the Act. That means the copy certification can be done by someone other than the witness taking the declaration, as long as that person holds a relevant statutory authority. The regulation does not say how the certification must be done - no particular form is prescribed - but standard practice would be to write “certified true copy” with signature and date.

Savings provision. Section 8 preserves acts, matters or things done under the 2017 regulation. This ensures that a statutory declaration that was validly witnessed under the old regulation remains valid after 1 September 2024, even if it would not comply with the new ID document requirements. This is important for ongoing proceedings where documents were made before the commencement date.

The regulation directly affects two groups: persons making statutory declarations or affidavits in New South Wales, and the authorised witnesses who attest them. For the maker, the regulation determines what identity evidence they must produce if they are not known to the witness. That burden falls most heavily on individuals who lack standard Australian documents: migrants relying on foreign passports or identity cards, people who have lost their birth certificate, and persons who rely on bank statements as proof of identity. The requirement that foreign‑language documents be translated imposes a cost (financial and time) that may deter such persons from making declarations, or force them to seek out a witness who already knows them for 12 months. Persons who wear face coverings - for religious, medical, or cultural reasons - must disclose their justification to the witness, which may be privacy‑intrusive. The witness must be satisfied the justification is “special”, a term imported from policing powers that may be interpreted strictly. For authorised witnesses - principally lawyers, justices of the peace, court officers, notaries, and police officers - the regulation imposes a compliance burden. They must maintain a 12‑month acquaintance threshold or carefully inspect identification documents against a list of permitted categories, check expiry dates, ensure translations are provided where needed, and then complete a certificate. The certificate is not mandatory in form, but section 7(1) sets out mandatory content: whether the face was seen; whether the person was known or identity confirmed by document; and if by document, which document. The authorised witness bears the risk of getting this wrong - a defective certificate may invalidate the declaration or affidavit or expose the witness to liability for a false statement. The regulation also affects entities that issue identification documents. The list in Schedule 2 includes Medicare Cards (issued by Services Australia), bank credit cards and passbooks, student ID cards from educational institutions, electoral enrolment cards, and institutional ID cards for inmates and forensic patients. These institutions have no duties under the regulation, but the instrument creates demand for their documents as identity credentials. Banks and credit unions are directly impacted because a statement of account on a bank letterhead is acceptable only if it is no more than one year old (section 6(2)(d)). That means individuals cannot rely on an old statement kept in a file. The regulation also affects correctional centres and mental health facilities that issue identification cards for inmates and forensic patients - those cards are specifically recognised, reflecting the reality that detained persons may lack standard ID. For the broader legal system, the regulation imposes a uniform rule on identity verification for statutory declarations and affidavits, making practice clearer but also more rigid. The 12‑month “knows” rule is fixed; a witness who has known a person for 11 months and 29 days cannot rely on that knowledge and must demand ID. This can disrupt commercial transactions, court filings, and property dealings that require swift execution of sworn documents.

The central duty is on the authorised witness to comply with section 34(1)(a)-(c) of the Oaths Act as amplified by the regulation. That means seeing the face (unless the face‑covering exemption applies), either knowing the person for at least 12 months or confirming identity by sighting an acceptable identification document (section 6(1)), and certifying those matters in the prescribed way (section 7). The witness has a right to rely on an expired Australian passport if it has been expired for less than two years; that is an explicit relaxation of the general rule against expired documents. The witness also has a right to accept a certified copy of an identification document rather than the original. But the witness has a duty not to rely on documents that fall within the prohibitions in section 6(2): expired (outside the passport exception), cancelled, foreign‑language without translation, bank statements over one year old, or electoral/student cards over two years old. The maker of the declaration or affidavit has a right to present their case under the face‑covering exemption, but no right to have the exemption accepted - the witness must be satisfied of a special justification. The maker has a right to present a certified copy rather than the original ID document, which avoids the risk of losing a passport or birth certificate. The maker also has a right to choose among the many identification document categories - they are not limited to, say, a driver’s licence. The regulation’s certificate requirement creates a duty on the witness to complete the certificate at the time of witnessing. The form in Schedule 1 is a model, not mandatory, but any certificate must cover the matters in section 7(1). That means the witness must state, in the certificate, either that the face was seen or that it was not seen because of a face covering and that the person had a special justification. The certificate must also state either that the witness knows the person (having known them for 12 months) or that identity was confirmed by a specified document. If a document was used, it must be described. The certificate does not need to be notarised or sealed; it is simply signed and dated. The savings provision (section 8) protects acts done under the old regulation: no one is required to re‑execute a declaration that was properly witnessed before 1 September 2024. That is a transitional right.

The regulation itself does not create penalty provisions. Enforcement relies on the Oaths Act 1900 and general law. Section 34 of that Act makes it an offence for an authorised witness to make a false certificate, though the penalty is set in the Act, not the regulation. A witness who certifies compliance under section 7 when they did not actually see the face or did not properly confirm identity may face prosecution for an offence under the Act, or potentially for perjury or giving false information if the matter is in judicial proceedings. More commonly, the practical penalty is that a statutory declaration or affidavit executed without proper compliance may be rejected by a court, tribunal, or government agency as invalid. That shifts the cost onto the person who relied on the declaration - the transaction delays, the court filing fails, or the property settlement stalls. There is no penalty in the regulation for a person who falsely claims a special justification for wearing a face covering, but that may amount to a representation that induces the witness to give a false certificate, which could be an ancillary offence. The regulation also exposes the witness to civil liability if a third party relies on a defective declaration and suffers loss, though the duty is statutory and might not give rise to a private right of action. Enforcement is diffuse: no regulator is specifically charged with auditing compliance. It will be a matter for the individual user of the declaration or affidavit to challenge validity. That means the regulation’s bite depends on the strictness of the recipient - a cautious bank or government department will reject a declaration that lacks a proper certificate, while a less careful one may accept it. Over time, this can create inconsistent practice. The regulation’s only express enforcement tool is the exclusion of non‑complying documents from the legal system, which is a market rather than a command‑and‑control deterrent.

The regulation is subordinate to the Oaths Act 1900 (the Act), which it refers to throughout. It is made under section 34(3)(c) of that Act, which allows the regulation to exempt authorised witnesses from the face‑seeing requirement, and under other provisions that allow prescription of identity‑confirmation rules. The Interpretation Act 1987 applies to the regulation, meaning its definitions and default rules (e.g., that “person” includes corporations, though a corporation cannot make a statutory declaration) govern unless displaced. The regulation cross‑references several other Acts. The definition of “special justification” imports the meaning from the Law Enforcement (Powers and Responsibilities) Act 2002, section 19B. That section originally gave police powers to demand removal of face coverings in public places. Applying that definition in a witnessing context may be awkward - the cases on section 19B deal with police‑citizen encounters, not voluntary legal administration. It is unclear whether a court would adopt the LEPRA case law when interpreting “special justification” in the Oaths context, but the regulation ties them together. The definition of “forensic patient” comes from the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which governs people found unfit to be tried or not guilty by reason of mental impairment. The dictionary also references the Mental Health Act 2007 for the definition of “patient” (other than forensic patient). And it references the Crimes (Administration of Sentences) Act 1999 for the definition of “inmate”. All these are used only to identify acceptable identification documents in the dictionary, not to impose any duties on health or correctional authorities. The regulation also interacts with the Photo Card Act 2005, since a Photo Card issued under that Act is a listed identification document. The regulation does not interact with the Commonwealth’s Statutory Declarations Act 1959, but in practice statutory declarations made for Commonwealth purposes are governed by that Act, which has its own witnessing rules. This NSW regulation applies to declarations made under the NSW Oaths Act only. That creates a dual system: a NSW JP witnessing a Commonwealth declaration must follow Commonwealth rules; a NSW declaration under the NSW Act follows this regulation. The regulation also interacts with the Subordinate Legislation Act 1989, which is why the 2017 regulation was automatically repealed on 1 September 2024. The savings provision (section 8) ensures continuity so that no rights or obligations lapse at the changeover.

This regulation is a new instrument replacing the Oaths Regulation 2017. It was likely made by the Governor on the recommendation of the Attorney General under the Oaths Act 1900. The regulation commenced on 1 September 2024, the same day the 2017 regulation was repealed. There is no amendment history within the instrument itself because it is a principal regulation. As of the text provided, no amendments have been made. The regulation’s structure mirrors the 2017 regulation closely: the 2017 version also had a 12‑month “knows” rule, the same list of identification documents, and the same certificate requirements. The main additions are the face‑covering exemption (section 4) and the explicit cross‑reference to LEPRA for “special justification”. The 2017 regulation did not address face coverings at all, meaning it effectively required the face to be seen in all cases. That was a gap for persons with medical conditions or religious obligations. The 2024 regulation closes that gap by providing an exemption, but it does so by importing a policing‑power definition rather than a bespoke one for the witnessing context. The dictionary was also updated: the 2017 regulation did not include definitions for “forensic patient” or the cross‑references to specific Acts. The 2024 regulation also adds a note under section 4 about special justification specifically mentioning “legitimate medical reason”, which may have been added to reassure health practitioners and advocates. The certificate form in Schedule 1 was also updated to include the face‑covering alternative. There is no amendment history in the usual sense because the regulation is new; future changes would appear as separate amending regulations.

The regulation is too new to have generated any reported litigation. It commenced on 1 September 2024, and no judgments citing it currently exist on public databases. The preceding regulation, the Oaths Regulation 2017, also had minimal litigation - the identity requirements are typically not litigated except in the context of challenges to the validity of a statutory declaration or affidavit. In NSW, most cases about defective witnessing turn on whether the witness was actually authorised, not on the identification steps. The Oaths Act itself has some interpretive case law, but that usually concerns whether a declaration was properly made rather than the witness’s identity‑checking duties. One potential area for future litigation is the meaning of “special justification” as borrowed from LEPRA. Cases under LEPRA section 19B have considered whether religious beliefs constitute a special justification (generally yes), but those cases involved police powers in public places. A court considering a witnessing context might take a different view - for instance, whether mere inconvenience or embarrassment qualifies. If an authorised witness refuses to accept a face covering and the person makes the declaration anyway, the court may have to decide whether the witness’s refusal was reasonable. Another litigation risk is disputes over whether a particular document is an “identification document” under Schedule 2. The list is exhaustive, so a document not listed cannot be used. A litigant might argue that a digital version of a document shown on a phone screen is not an “original” for sighting purposes - the regulation does not address electronic presentation. The requirement to “sight” an original or certified copy implies physical possession, but courts may interpret it flexibly. The regulation’s savings provision (section 8) could also be litigated if someone argues that a document made under the 2017 regulation but in a form that would not meet the 2024 requirements is still valid. The section is drafted broadly (“continues to have effect”), but its scope remains untested. For now, the regulation is likely to generate more administrative caution than case law.

Several traps in this regulation that practitioners should watch for are detailed below.

Expired Australian passport loophole is narrow. Section 6(2)(a) prohibits reliance on an expired document except “an Australian passport that has been expired for less than 2 years”. That means an Australian passport expired 2 years and 1 day cannot be used. A foreign passport, even if still valid in its own country, cannot be used if it has expired according to its own terms. And an Australian passport that expired more than 2 years ago is invalid for identity confirmation. This could catch people who keep old passports as primary identification.

Bank statements more than one year old are forbidden. Section 6(2)(d) says a document referred to in paragraph (l)(iii) of the identification document definition - that is, a “statement of account” from a bank, building society, or credit union - cannot be relied on if it is more than 1 year old. That is a surprisingly short shelf life for a bank statement. Many individuals keep statements for years and may not have a current one handy. The regulation does not allow a certified copy of a recent statement to extend the date; the statement itself must be dated within the last year.

Student ID and electoral enrolment cards must be current. Paragraphs (m) and (n) of the identification document definition are subject to a two‑year expiry limit under section 6(2)(e). A student ID card issued three years ago, even if the person is still a student, cannot be used - the card must be re‑issued. Similarly, an electoral enrolment card from a previous election is too old.

Translation requirement applies only to certain foreign documents. Section 6(2)(c) imposes an English translation requirement only for documents falling within paragraphs (c), (d), (e), (g), or (j) of the identification document definition. Those are foreign citizenship certificates, foreign birth certificates, foreign driver licences, foreign passports, and foreign national identity cards. Notably, a foreign driver licence without a photo (e) is included; but a foreign Medicare‑type card is not in that list, so it need not be translated. That is a gap.

“Special justification” is undefined in the regulation itself. The note under section 4 says it “includes having a legitimate medical reason”, but the actual definition cross‑references LEPRA, which covers religious, cultural, and medical reasons. The note is not exhaustive and is arguably misleading because it omits religious and cultural grounds. An authorised witness who only reads the note might wrongly reject a person wearing a niqab for religious reasons, thinking only medical reasons count.

Certificate form is optional but risky. Section 7(2) says the certificate “may, but need not, be in the form set out in Schedule 1”. This latitude invites practitioners to draft their own certificates. However, the mandatory content in section 7(1) must still be covered. A self‑drafted certificate that omits, for example, the description of the identification document relied on, is non‑compliant even if it says “identity confirmed”. The Schedule 1 form is designed to be comprehensive; deviating from it increases error risk.

12‑month rule is not waivable. Even if the authorised witness is certain of the person’s identity (e.g., a high‑profile public figure), if they have not known the person for 12 months, they must demand identification documents. There is no exception for “known by reputation” or “known for a shorter period but positively identified”.

Inmate and forensic patient ID cards are restricted to those persons only. An identification document under paragraphs (o), (p), or (q) of the dictionary can only be used if the person is an inmate, forensic patient, or patient under the Mental Health Act. A person who is not currently detained cannot use a former inmate ID card; they must use another document.

Savings provision does not save everything. Section 8 saves “an act, matter or thing that, immediately before the repeal of the Oaths Regulation 2017, had effect under that regulation”. That means if a declaration was properly witnessed under the old regulation, it remains valid. But if a declaration was witnessed after the repeal but using old forms, it may not be valid. The savings provision does not validate acts done after the repeal.

Compliance with the regulation is a step‑by‑step process that the authorised witness must follow before the person signs the statutory declaration or affidavit.

Step 1: Determine if you need to see the person’s face. Under Oaths Act s 34(1)(a), you must see the person’s face unless you decide to use the exemption in section 4. The exemption requires two conditions: the person is wearing a face covering, and you are satisfied they have a special justification for not removing it. You should ask the person directly why they cannot remove the covering. If the reason is medical, religious, or cultural, you should accept it unless you have reason to doubt. You must be satisfied - mere acceptance without inquiry may breach your duty. If you accept the justification, you proceed to certificate item 1 with the alternative wording.

Step 2: Determine if you know the person for at least 12 months. Section 4 defines “knows” by a fixed period. You must have known the person for at least 12 months. If you have, you may skip Step 3 and go to Step 4. If you have not, you must confirm identity by identification document. There is no discretion.

Step 3: Confirm identity by identification document. Select a document from the Schedule 2 list. You must sight the original or a certified copy. Do not rely on a document that is expired (except an Australian passport expired less than 2 years), cancelled, foreign‑language without translation, a bank statement more than 1 year old, or an electoral enrolment or student ID card more than 2 years old. You should make a note of the document type, its issue date, expiry date (if any), and any other identifying details. You must then specify that document in the certificate (section 7(1)(c)). You must not accept a photocopy unless it is certified by an authorised witness or a person authorised under section 21(1) of the Act. If the document is foreign, ensure an English translation accompanies it; do not rely on your own knowledge of the language.

Step 4: Complete the certificate. The certificate must be on the declaration or affidavit itself. Use the form in Schedule 1 or draft your own, ensuring you cover the three matters in section 7(1): (a) whether you saw the face or not and why; (b) whether you know the person or confirmed identity; and (c) if identity was confirmed by document, specify the document. Sign and date the certificate. Do not leave blank spaces; cross out the inapplicable alternatives as the form suggests.

Step 5: Post‑execution. Retain no records of the identification document (privacy considerations), but ensure the declaration or affidavit is properly completed in all other respects. If you made a mistake (e.g., you later realise the document was expired), you should not correct the certificate after execution; it may be better to have the person make a fresh declaration.

For the person making the declaration: Choose an authorised witness who knows you for 12 months to avoid the need for ID. If you cannot, bring acceptable ID. If you wear a face covering, arrive prepared to explain your justification. The witness does not have to accept it; have a backup plan (e.g., a witness who knows you). If you are relying on a foreign document, bring an English translation prepared by a professional translator (the regulation does not specify who may translate, so anyone competent should suffice, but using a NAATI‑accredited translator reduces risk). If your bank statement is more than one year old, obtain a fresh statement from your bank. If your student ID is old, ask your institution for a current enrolment certificate.