The New Zealand Law Society | Te Kāhui Ture o Aotearoa asked Auckland barrister Paul Collins to give his opinion on the administration of oaths and declarations in circumstances of mandatory self-isolation. This is reproduced below. The Law Society has informed the Ministry of Justice of this approach and has also referred it to the Rules Committee for its information.
This memorandum addresses the concept of remote administration of oaths and declarations, including the attestation of affidavits by oath or affirmation, in circumstances of the Pandemic Level 4 mandatory self-isolation currently in force in this country. The difficulty arises because the legislation governing the administration of oaths and declarations, and the swearing or affirmation of affidavits, contemplates the deponent being in close physical proximity to the administering person. This memorandum will refer to that person as “the lawyer” but it could be any person authorised by law to administer an oath or declaration, or to attest an affidavit or affirmation.
The requirement of physical proximity in those processes is reflected, for example, in Rule 9.73(2) of the High Court Rules 2016 which requires an affidavit to be sworn in accordance with the Oaths and Declarations Act 1957 before a person authorised to administer oaths. Rule 9.63 of the District Court Rules 2014 is in the same terms. Similarly, section 3 of the Oaths and Declarations Act 1957 suggests physical proximity between the deponent and the lawyer.
In the absence of any judicial or legislative authority specifically accommodating remote attestation, it is recommended that any lawyer asked to remotely administer an oath or declaration consider the procedures outlined in this memorandum, including the provision of a certificate like the one attached. A certificate of that sort would give confidence to the deponent that the document would be accepted by the authority before which it is being offered, as being binding on that person. It could be offered to the authority by the deponent, or the deponent’s lawyer, with reference to:
(a) Rule 1.6 of the High Court Rules, or Rule 1.11 in the District Court Rules, in circumstances where there is no form of procedure to meet the pandemic isolation requirements, and the question of the validity of the document may be determined “in the manner that the court thinks is best calculated to promote the objective of [the] rules”; and
(b) Section 24 of the Epidemic Preparedness Act 2006, which applies in circumstances of the Epidemic Preparedness (Covid-19) Notice 2020, from 25 March 2020, by which a Judge of the High Court and certain other judicial officers may modify any rule of court to the extent necessary in the interests of justice to take account of the effects of the disease stated in the notice.
It is acknowledged that the “authority” to which the certificate might be produced to support the attested document could be a court or other judicial body, or a public or private non-judicial body such as a government department, local government, or a bank or other private institution. It is for that body, whether a court or otherwise, to decide to accept the document as if it had been attested in the conventional way. The procedures outlined in this memorandum, including the provision of a certificate, are intended to ensurethe integrity of the system of formally proving documents, as far as it is possible to do so in the unprecedented circumstances of the pandemic.
Before deciding whether to provide a certificate, any lawyer being asked to administer an oath or declaration remotely should also consider the following matters:
If these attestation and certification procedures are followed, in the absence of judicial or legislative authority permitting remote attestation or otherwise overcoming the problem of remoteness, those processes will assist the court or other authority in deciding whether or not to accept the document as being formally binding on the deponent.