I am admitted to the High Court, can I witness affidavits / certify true copies?
If you don’t hold a practising certificate – but have been admitted to the High Court (i.e. you are an ‘enrolled (admitted) barrister and solicitor’) – you may, on an occasional basis and without receiving a fee,
- certify true copies,
- witness signatures, or
- take an oath or declaration.
See the Oaths and Declarations Act 1957, s9 (which states that a declaration made in New Zealand may be made before ‘a person enrolled as a barrister and solicitor of the High Court’).
You should describe yourself as an ‘Enrolled barrister and solicitor of the High Court of New Zealand' rather than a ‘lawyer’.
- If the Act governing the documentation requires that it be certified by a lawyer, only a person holding a current practising certificate can do so.
For example, s378 of the Criminal Procedure Act 2011 requires a practising certificate for affidavits taken for proceedings under that Act. Note also that r9.85 of the High Court Rules 2016 provides that a ‘lawyer’, Justice of the Peace or Registrar is authorised to take affidavits in New Zealand. Lawyer has the same meaning as in section 6 of the Lawyers and Conveyancers Act 2006 (a person who holds a current practising certificate as a barrister or barrister and solicitor).
Another example is that a lawyer (defined in the Lawyers and Conveyancers Act 2006 as a person who holds a current practising certificate as a barrister or barrister and solicitor) is a “trusted referee” for the purposes of identity verification under the AML/CFT Amended Identity Verification Code of Practice 2013. Paragraph 8(h) of the Code of Practice specifies that a lawyer can be a trusted referee. Paragraph 8(m) allows a person to be a trusted referee who has the legal authority to take statutory declarations or the equivalent in New Zealand. An enrolled barrister and solicitor can be a trusted referee under paragraph 8(m) but not paragraph 8(h), which is reserved for lawyers.
- You cannot witness and certify a document where an explanation of the contents of the document is required, as the requirement will usually be for a lawyer to explain the effects of the document.
For example, you cannot sign off an agreement under Part 6 of the Property Relationships Act 1976 because section 21F requires that the lawyer who witnesses the signature must certify that they explained the effect and implications of that agreement.
- The person witnessing must be distant from or independent from all contentious matters. At least one commentator has said that in any contentious matters (a matter likely to be disputed) it would be prudent to ensure that the person taking the affidavit has a current practising certificate.
If you have any doubts about your ability to witness or certify a document, it would be prudent to refer the person requiring the certification to a lawyer.
A guideline to the process for certifying documents/witnessing affidavits is also available as part of the Law Society's Guide For New Lawyers.