COVID-19: Temporary changes to the Oaths and Declarations Act
Last updated Tuesday 28 April 2020
The Government has issued an Immediate Modification Order (IMO) which modifies the Oaths and Declarations Act 1957 (Act). The IMO was issued to allow oaths, affirmations and declarations to be taken during the COVID-19 epidemic. The IMO came into effect on 17 April 2020.
A link to the IMO is available here.
Who needs to read it? Why?
This IMO will affect anyone who making, administering or receiving an oath, affirmation or declaration.
It is particularly relevant to financial institutions who require investors to make a statutory declaration, for example because legislation authorises or requires a declaration to be provided to the entity eg in relation to KiwiSaver hardship withdrawals.
The IMO lifts some restrictions in the Act so that oaths, affirmations and declarations can be administered during the COVID-19 lockdown.
What does it cover?
The IMO was issued under section 15 of the Epidemic Preparedness Act 2006. The IMO was issued because the statutory requirements in the Act (such as physical presence) was impracticable to comply with during the lockdown.
The IMO makes temporary changes to the Act:
- There is no requirement for a person taking an oath to be in the physical presence of those making them. Instead, oaths, affirmations and declarations can be administered using audio-visual and audio links such as Skype, Zoom or over the phone.
- There is no requirement for a person taking an oath, affirmation or declaration to sign the same document as the person making them.
- Entities that receive statutory declarations may authorise employees to take statutory declarations – if an enactment authorises or requires the declaration to be provided to the entity. Employees should be trained in the process and must not take declarations where they may have a conflict of interest with the person making it.
Other requirements (such as ensuring the person who is making the oath is the person signing the document) will remain the same.
Additional requirements apply where an oath, affirmation or declaration is made using an audio-visual or audio link. An oath, affirmation or declaration should note on the document that it was taken using an audio-visual or audio link. The person taking the oath, affirmation or declaration must check that:
- The quality of the audio-visual link allows them to see and witness the person making the oath, affirmation or declaration and the document;
- Both parties are reading the same document and appendices;
- They can watch each page being signed or initialled; and
- If the person is unknown to the person taking the oath, affirmation or declaration, to check reliable identity information.
Further steps are required for taking an oath, affirmation or declaration using an audio link.
The IMO is to be welcomed. It allows oaths, affirmations and declarations to be administered during the COVID-19 lockdown. Physical distancing requirements have made it impossible to administer an oath, affirmation or declaration in the usual way. The IMO removes some of the difficulties entities have faced while taking statutory declarations during the lockdown period. While many entities have already been using audio-visual links to take declarations, this IMO confirms that this method complies with legal requirements.
However, it may be less useful than hoped in relation to KiwiSaver hardship applications because under the KiwiSaver Rules it is the supervisor, rather than the fund manager, to whom application is made. As a result it will be employees of the supervisor who would have the benefit of the IMO provision in that regard, not fund manager employees. Alternatively entities may rely on the other options under the IMO for third party certification, or on the FMA guidance issued on 17 April 2020.
If you have any questions in relation to oaths, affirmations and declarations, or how the IMO will affect your business, please contact one of our experts.