This information outlines the effect of the Immediate Modification Order on the requirements for oaths, affirmations and declarations. It is not intended as legal advice.
Immediate Modification Orders (IMOs) are issued under section 15 of the Epidemic Preparedness Act. IMOs are considered and agreed to by Cabinet and take the form of Orders in Council.
IMOs cannot be used to substantially rewrite parts of the law. They can only be used where there is a statutory requirement or restriction that is impossible or impracticable to comply with, or comply with fully, during an epidemic.
The IMO amends the Oaths and Declarations Act 1957, which sets out the requirements for making oaths and affirmations (such as affidavits) and statutory declarations.
The change makes it clear that there is no requirement for a person taking oaths, affirmations or declarations to be in the physical presence of those making them. The person witnessing the oath, declaration or affirmation is also not required to physically sign the same document as the person making it.
Instead, oaths, affirmations or declarations can be administered using audio-visual or audio links, such over Skype, Zoom, Facetime, or over the phone.
Other requirements for taking oaths, affirmations, and statutory declarations remain the same. It will still be important for the person taking the oath, affirmation or declaration to be sure that:
The Order also allows entities that receive statutory declarations to authorise some of their employees to take statutory declarations instead of a lawyer, JP, Deputy Registrar in a court or other person who would usually do that. This is because people may find it harder than usual to find someone to take their statutory declarations. Entities authorising their staff to do this should make sure that staff are trained in the process outlined below and that staff don’t take declarations where they may have a conflict of interest with the person making it.
The changes made by this IMO are temporary. On 20 June 2021, the Prime Minister renewed the Epidemic Notice pursuant to section 7 of the Epidemic Preparedness Act 2006.The IMO will expire after the Epidemic Notice is lifted, and the law will return to normal.
It is important that oaths, affirmations and declarations can still be made while the Epidemic Notice is in force. They are needed for some court proceedings and many other applications that people still need to make.
The requirements of the COVID-19 Alert Levels, including physical distancing requirements, make it difficult, or impossible to take oaths, affirmations or declarations in the usual way. Some people are already doing these things remotely by audio-visual link. The change makes it clear that this complies with the legal requirements.
It may also be more difficult for people to find someone to take a statutory declaration due to the physical distancing requirements and the need to do it remotely. Court counter services are closed to the public. Also, the Royal Federation of NZ Justices Associations says that Justices of the Peace services are reduced and Justices of the Peace may be unable to assist with the taking of declarations using electronic methods. For this reason, the IMO gives entities that receive statutory declarations the option to authorise their staff to take those declarations instead.
The best way is to set up a meeting about the oath, affirmation or declaration via audio-visual link (for example, Skype, Zoom etc) if this technology is available. Using an audio-visual link usually makes easier to for the person taking the oath, affirmation or declaration to be confident about things like:
A person taking an oath, affirmation or declaration this way may need to take some extra steps so they can be sure the usual requirements are satisfied. The person taking the oath, affirmation or declaration should check:
Not everyone has access to an audio-visual link. For this reason the IMO also allows the use of audio-link, such as a phone.
Some extra steps may be needed to satisfy the usual requirements over the phone, such as. A person taking an oath, affirmation or declaration over the phone may want to:
The person making the oath, affirmation or declaration should sign the document during the audio-visual or audio link.
As soon as possible after that, the person must send it to the person taking the oath, affirmation or declaration (the witness) so that they can also sign it. The document can be scanned or photographed and sent electronically. At Alert Levels 1-3, it could also be posted or couriered. At Alert Level 4, the document can be posted or couriered if it is an essential good (for example, because it relates to priority court or tribunal proceedings).
The person taking the oath, affirmation or affidavit can also note on the document that it was taken by audio or audio-visual link.
The change does not require the person taking the oath, affirmation or declaration to also sign a certificate setting out the circumstances in which the oath, affirmation or declaration was made.
It may still be a good idea to do that to give the court or entity receiving the oath, affirmation or declaration confidence that the requirements have been complied with.
The Law Society has guidance for lawyers and a template showing what a certificate could look like: Read more on guidance for lawyers here:
If a person does not have a printer, it may be possible for them to write out the oath, affirmation or declaration by hand.
At Alert Levels 1-3, it could also be posted or couriered. At Alert Level 4, the document can be posted or couriered if it is an essential good (for example, because it relates to priority court or tribunal proceedings).
You should ask a lawyer whether you will be charged, and if so, how much. Your lawyer has a duty to inform you up front of any cost associated with witnessing your oath, affirmation or declaration, and to charge only a fair and reasonable fee.
Read more on charging on the Law Society’s website:
You should talk to the entity that you need to provide the oath, affirmation or statutory declaration to.
You could ask whether the entity has someone who is authorised to take the oath, affirmation or statutory declaration, including someone who may have been authorised under the change.
You should explain your circumstances. Some entities may have some flexibility to do things a little bit differently during COVID-19.
If there is no other option and the oath or affirmation is needed for essential court work, such as to apply for a protection order, you may be able to have someone take it in person. You should do that while maintaining physical distancing requirements to the extent that is possible.
Yes, but only while the Epidemic Notice is in force in New Zealand.
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