30 April 2012


The Identification Legislation Amendment Act 2011 (NSW) has come into effect.

The crucial part of the statute, in Schedule 2, amends the Oaths Act 1900 (NSW).

It provides that -
34 Identification of person making statutory declaration or affidavit
(1) A person who takes and receives a statutory declaration or affidavit in this State (an "authorised witness"):
(a) must see the face of the person making the declaration or affidavit, and
(b) must know the person who makes the declaration or affidavit or confirm the person’s identity in accordance with the regulations, and
(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.
Maximum penalty (on summary conviction before the Local Court): 2 penalty units.
(2) An authorised witness may request a person who is seeking to make a statutory declaration or affidavit to remove so much of any face covering worn by the person as prevents the authorised witness from seeing the person’s face.
(3) The regulations may make provision for or with respect to compliance with this section and, in particular, may:
(a) provide that a person is not known to an authorised witness unless the authorised witness has known the person for a minimum specified period, and
(b) provide for the steps that will satisfy the requirement to confirm the identity of a person making a statutory declaration or affidavit (including prescribing the kinds of documentation that may or must be relied on for that purpose), and
(c) exempt an authorised witness from the requirement to comply with subsection (1) (a) for medical or other reasons.
(4) A failure to comply with this section does not affect the validity of any statutory declaration or affidavit.
(5) In this section: "face" and "face covering" have the same meanings as they have in the Law Enforcement (Powers and Responsibilities) Act 2002.
Section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)  defines "face" as
a person’s face:
(a) from the top of the forehead to the bottom of the chin, and
(b) 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).
Sections 19A and 19B of that Act deal with the "Power of police officer to require removal of face coverings for identification purposes" and "Failure of person to remove face covering when required".