JUSTICES OF THE PEACE MANUAL MINISTERIAL …justiceofthepeace.org.nz/site/jpfed/files/Ministerial...6.2 Application and Affidavit for Joint Order 6.3 Affidavit of Service 6.4 Affidavit

JUSTICES OF THE PEACE MANUALMINISTERIAL DUTIES

SEPTEMBER 2008

JUSTICES OF THE PEACE MINISTERIAL DUTIESJUSTICES OF THE PEACE MINISTERIAL DUTIES

FOREWORD

In accordance with section 3(2) of the Justices of the Peace Act 1957, I have much pleasure in approving the Justices of the Peace Ministerial Duties Manual.

Belinda Clark

Secretary for Justice and Chief Executive

September 2008


CONTENTS

1. INTRODUCTION

1.1 A Brief History the Role of the Justice of the Peace

1.2 Appointment to Office

1.3 Restricted eligibility

1.4 Oaths of Office

1.5 Tenure of Office

1.6 Ex-officio Justices

1.7 Use of the letters “JP”

1.8 Warrant Card

1.9 Functions and Powers

1.10 Justices of the Peace Best Practices

2. WITNESSING OF DOCUMENTS

2.1 Introduction

2.2 Definition of Witnessing

2.3 When a Request is made

2.4 Common Legal Documents

2.5 Deeds

2.6 Method of Witnessing

2.7 How and Where to Witness

2.8 Land Transfer Documents Exceptions

2.9 Normal Land Transfer Documents

2.10 Wills

2.11 Dates

2.12 Ink or Pencil

2.13 Contents of documents

2.14 Visually Impaired, Ill or Illiterate Signatories

2.15 Alterations and Erasures in Documents

MINISTERIAL DUTIES JUSTICES OF THE PEACE

CONTENTS continued

2.16 Alternations and Erasures in Wills

2.17 For All Other Documents

2.18 Relatives

2.19 Other Common Documents Requiring the Signature of a Justice of the Peace

2.20 Certifying Copies of Documents

2.21 Conclusion

3. DECLARATIONS

3.1 What is a Statutory Declaration?

3.2 Forms of Statutory Declarations

3.3 Non-revocation of Power of Attorney

3.4 More than One Person making a Declaration on the Same Form

3.5 How a Declaration is Made?

3.6 More than One Page

3.7 Alterations and Erasures

3.8 Visually Impaired, Ill, or Illiterate Declarants

3.9 Relatives

3.10 Sundays

3.11 Declarations Originating Overseas

4. AFFIDAVITS AND AFFIRMATIONS

4.1 Forms of Affidavits and Affirmations

4.2 How is an Affidavit Sworn or an Affirmation Affirmed?

4.3 Alterations and Erasures

4.4 Visually Impaired, Ill or Illiterate Deponents

4.5 Documents Annexed to an Affidavit or Affirmation

4.6 Sundays


CONTENTS continued

5. OATHS OR AFFIRMATIONS OF ALLEGIANCE

5.1 Introduction

5.2 Types of Oaths and Affirmations of Allegiance

5.3 New Zealand Citizenship Applications

5.4 The Process of Becoming a Citizen

5.5 The Oath of Allegiance

5.6 The Affirmation of Allegiance

6. APPLICATIONS FOR THE DISSOLUTION OF MARRIAGE/CIVIL UNION

6.1 Application and Affidavit by One Party

6.2 Application and Affidavit for Joint Order

6.3 Affidavit of Service

6.4 Affidavit of Identification

6.5 Acknowledgement of Service

6.6 Example of an Exhibit Note

7. OTHER DUTIES OF JUSTICES OF THE PEACE

7.1 The Nominated Witness Definition

7.2 The Role of Nominated Witness

7.3 Participation

7.4 Justices of the Peace Support Person Role

7.5 Definition of Mental Disorder

7.6 The Assessment and Treatment Process

7.7 Section 9(2) (d) – the Duty Authorised Officer and Justice of the Peace Role

7.8 Elections and the Role of Justices of the Peace

7.9 Appointment of Justices of the Peace for Electoral Duties

7.10 Roles and responsibilities in the Electoral Process


CONTENTS continued

8. JUSTICES’ ASSOCIATIONS

9. CONCLUSION

10. APPENDICES

1. Best Practice – Nomination of Justices of the Peace

2. Best Practice – Interview of Nominee

3. Best Practice – Ministerial Justice of the Peace Induction Training

4. Best Practice – Complaints and Dispute Resolution Process for Minsterial Justices of the Peace.


1. INTRODUCTION

1.1 A BRIEF HISTORY THE ROLE OF THE JUSTICE OF THE PEACE

The role of Justice of the Peace is both ancient and honourable. It began as a peculiarly English institution almost 800 years ago with the appointment of Conservators, Wardens, or Keepers of the Peace.

It was in 1361, when a statute in the reign of Edward III gave appointees the power of trying felonies, that they acquired the more honourable title of “Justices”. An earlier statute in 1327 had taken the election of Conservators of the Peace from the people and had given it to the King.

The Act of 1361 provided, amongst other things, “That in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy of the county, with some learned in the law, and they shall have the power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take and chastise them according to their Trespass or Offence.”

That Act therefore envisaged that peace should be kept and justice administered in each county by a group having a noble as a leader, assisted by “some learned in the law”. To this day Justices are lay people who are assisted in England by Justices Clerks and in New Zealand by court officials.

The duties of the early Justices were many and onerous, and included supervising the accuracy of weights and measures, the seizing of wine sold for excessive prices, and assisting those whose homes were burned. Justices had great authority over the lives and liberties of those brought before them

The first appointment of a Justice in New Zealand was in 1814 when Governor Macquarie of New South Wales appointed the missionary Thomas Kendall as a Justice “… in the Bay of Islands in New Zealand and throughout the islands of New Zealand and those immediately contiguous thereto”.

In 1840, after New Zealand had become a British colony, the first regular appointments of Justices were made. The Royal Charter of 1840, which constituted New Zealand a separate colony, required the Government to include in the Legislative Council three senior Justices of the Peace. It is said that in the early days of colonisation Justices of the Peace were considered to be in some measure the representatives of the settlers, and indeed, in a number of districts, Justices identified themselves with the popular agitation for self government.

These conditions have long since passed, and the functions of modern Justices in New Zealand are now more limited than in former times. Notwithstanding their more restricted powers, it remains true that Justices of the Peace are citizens given special duties and powers. It is important for all Justices to remember that their office is an ancient and honourable one. In accepting and holding office, Justices should constantly remind themselves of the following:

• Although there is a certain status, which is in itself honourable, the position is not an “honour” but one involving serious duties and responsibilities.


• In exercising the powers conferred by the appointment, Justices may affect the fundamental freedoms and rights of a citizen.

• It is thus the duty of Justices to be thoroughly familiar with the limits of their powers and with the proper manner of exercising the associated responsibilities. Justices have the important responsibility of assisting in preserving the rule of law in this country.

• In keeping with the status accorded, Justices should seek to uphold the law not only in the office of Justice of the Peace, but also in their private and working lives.

The solemn and dignified words forming part of the judicial oath, which all Justices swear or affirm upon appointment, should be kept firmly in mind:

“I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.”

1.2 APPOINTMENT TO OFFICE

Although the office of Justice of the Peace is steeped in history, the office today derives its status and functions from a very brief statute of the New Zealand legislature, the Justices of the Peace Act 1957.

Section 3 of that Act provides that the Governor-General may, by Warrant, appoint any person to be a Justice of the Peace for New Zealand. A person may not be appointed as a Justice unless he or she has completed training approved by the Secretary for Justice, in the exercise and performance of the powers and functions of a Justice.

The Justices of the Peace Act does not set out the appointment process, however, this is a matter of ministerial practice that has developed over a period of years. Briefly, the practice is this:

• Nominations for appointments are only accepted from the Member of Parliament for the electorate where the nominee resides, or from a list Member of Parliament with the endorsement of the appropriate electorate Member of Parliament.

• There is a standard nomination form. Members of Parliament hold supplies of these forms or they can be downloaded through the Ministry of Justice website www.justice.govt.nz or through the Royal Federation of New Zealand Justices’ Associations (Inc) (the Royal Federation) website www.jpfed.org.nz.

• Nominees must have an adequate standard of education and a genuine desire to serve the community they should be of good standing in the community (which is not to be identified with material prosperity), and should be respected as persons of good sense, character and integrity.

The purpose of an appointment is not to bestow an honour on a deserving citizen, but to serve the public. Notwithstanding a person’s character and ability, appointments are made only where there are not already sufficient Justices to meet the requirements of the public.


A nomination having been made by the Member of Parliament, the procedure is as follows:

• The Ministry of Justice will obtain a confidential Criminal History check. Information relating to any criminal conviction is retained by the Minister of Justice or delegated Associate Minister and the Ministry of Justice.

• The Ministry of Justice will prepare and forward interview packages to the District Court Registrar and to the Royal Federation (to forward to the local Justices of the Peace Association).

• To assess the nominee’s suitability, the nominee will be interviewed jointly by the local District Court Registrar and a representative from the local Justices of the Peace Association. After the interview, confidential reports will be prepared by the District Court Registrar and Justices of the Peace Association and forwarded to the Ministry of Justice.

• On receipt of the confidential reports, the Ministry of Justice will then prepare a report for the Minister of Justice or delegated Associate Minister’s consideration of the suitability of the nominee. The report will request that the Minister of Justice or delegated Associate Minister either provisionally approve the nominee to undertake induction training for Ministerial Justices of the Peace or decline the nomination. If provisionally approved, the nominee will be sent self-study materials, which should be completed within four weeks. During this time the nominee will be contacted by a trainer from the Royal Federation.

• Upon successful completion of the induction training, the Minister of Justice will recommend that the Governor-General appoint the Justice of the Peace. After the Minister of Justice and Governor-General sign the Warrant for Appointment, the nominee will be sworn in before a District Court Judge.

• Appointees are not entitled to act as Justices until they have taken the Oath of Allegiance and the Judicial Oath as required by the Oaths and Declarations Act 1957 before a District Court Judge.

• The Secretary for Justice will arrange for the appointment to be published in the New Zealand Gazette, and the newly appointed Justice of the Peace will be issued with a warrant card.

1.3 RESTRICTED ELIGIBILITY

For many years it has been the policy of successive Ministers of Justice to decline to recommend for appointment as Justices, members of certain professions or callings, because of their special duties and responsibilities. These include Members of Parliament, barristers and solicitors, practising medical practitioners and persons working in various aspects of law enforcement. There has also been a general policy not to appoint members of the clergy and persons in religious orders.


1.4 OATHS OF OFFICE

Justices have no authority to act until they have taken the required oaths. Local Justices of the Peace Associations arrange an appointment with a District Court Judge, who will formally administer the oaths.

There are two oaths: the Oath of Allegiance and the Judicial Oath.

The form of the Oath of Allegiance is: 1

“I ……………… swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God.”

The form of the Judicial Oath is: 2

“I………………swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law in the office of Justice of the Peace; and I will do right to all manner of people after the laws and usages of New Zealand,without fear or favour, affection or ill will. So help me God.”

An appointee may not for religious or other reasons wish to take an oath. He or she is then entitled, as of right, to make an affirmation and need not give any reason for wishing to do so. In that event the same forms are used as are mentioned above, but the word “swear” is deleted and the words “solemnly, sincerely, and truly declare and affirm” are substituted.

1.5 TENURE OF OFFICE

A Justice holds appointment for life, or until he or she resigns by notice in writing to the Secretary for Justice or is removed from office by the Governor-General. The Governor-General may, on the recommendation of the Minister of Justice, remove any person from the office of Justice of the Peace by publishing a notice in the New Zealand Gazette. The grounds for removal include misconduct, conviction for an offence punishable by imprisonment, and bankruptcy.

A Justice of the Peace who has completed at least ten years of active service who wishes to relinquish their office may also apply in writing to the Secretary for Justice for the status of JP (retired).

1.6 EX-OFFICIO JUSTICES

Under section 41(4) of the Local Government Act 2002 a Chairperson of a regional council, or a Mayor of a territorial authority is a Justice of the Peace during the time that he or she holds the office of Chairperson or Mayor. This is known as an ex-officio Justice.

1 Section 17, Oaths and Declarations Act 1957. 2 Section 18, Oaths and Declarations Act 1957.


Upon relinquishing office, if an ex-officio Justice wishes to be appointed as a Justice in his or her own right, the procedure outlined earlier in this chapter must be followed. Ex-officio Justices are required to attend training prior to being sworn in.

1.7 USE OF THE LETTERS “JP”

Justices are entitled to use the letters “JP” after their name, and it is proper practice for the letters to be inserted after any New Zealand or Royal Honours, but preceding academic, professional and other qualifications, e.g. John Smith, MNZM, JP, B.Com, FCA, NZIM.

Although it is customary for the letters “JP” to be placed after one’s name, the propriety for doing so is limited to certain instances. Their use in private notepaper, in personal correspondence and in connection with social functions is acceptable provided it is not being used or appearing to be used for advancing trade, professional or business interests.

It is also proper for the suffix “JP” or the description “Justice of the Peace” to be used where the Justice is acting or signing as such.

It is improper for the letters to appear on cheques, driver’s licences, and the status of an officer of a local authority should not be referred to on its official notepaper.

In relation to candidacy in parliamentary or local body elections, only biographical material stating that a person is a Justice of the Peace is permitted. Any Justice standing for such elections should ensure that their agents are aware of this restriction.

1.8 WARRANT CARD

Every newly appointed Justice of the Peace is issued with a Warrant Card signed by the Minister of Justice.

The purpose of this card is to confirm the appointment and for identification purposes only. The card must not be produced when apprehended for a traffic violation. Justices should not embarrass the enforcement officer or the office of Justice of the Peace by producing their warrant under these circumstances.

1.9 FUNCTIONS AND POWERS

In New Zealand, Justices of the Peace have no inherent jurisdiction, and may exercise only those powers expressly given to them by statute. Section 4 of the Justices of the Peace Act 1957 states that the functions and powers of Justices shall be:

• T o take oaths and declarations under the provisions of the Oaths and Declarations Act 1957 or any other enactment.

• To carry out such functions and exercise such powers as is conferred on Justices by the Summary Proceedings Act 1957 or by any other enactment.

There are many “other enactments” conferring functions and powers upon Justices.


Broadly speaking, however, those functions and powers have over the years been classified under two headings – Judicial Duties and Ministerial Duties.

Judicial Duties3 involve presiding in a District Court, issuing search and arrest warrants, taking informations and complaints, issuing summonses and signing bail bonds. These duties are dealt with in separate judicial training resources. Justices of the Peace must not exercise or perform any judicial power or function unless he or she has completed training in the exercise and performance of judicial powers and functions to the satisfaction of the Chief District Court Judge.

Ministerial Duties principally comprise:

• Witnessing of land transfer and other documents

• Taking of statutory declarations, affidavits or affirmations

• Citizenship applications and administering the Oath of Allegiance

• Processing applications for the dissolution of marriage or civil union

• Oversight of the counting of votes in a general election.

Justices of the Peace may also be asked to carry out some functions not as Justice of the Peace but because the person is a Justice of the Peace. Examples include being present at the drawing of a raffle or witnessing a will. Justices of the Peace may also be called upon to act as a nominated witness when children or young persons are interviewed by police or asked to witness the committal of a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 by their local District Health Board.

The remainder of this manual will be concerned with Ministerial duties.

1.10 JUSTICES OF THE PEACE BEST PRACTICES

A Best Practice Manual for Justices of the Peace (November 2007) has been developed. The manual supports the legislative requirements of the Justices of the Peace Act 1957 and contains three national standards and best practice on the:

1. Appointment of Ministerial Justices of the Peace: The national standard process involves joint interviews to be undertaken by Court Registrars and JP Associations of persons nominated to apply as JPs; the nominee to undertake an induction training programme for ministerial duties prior to appointment and upon successful completion, appointment as a Justice of the Peace. Flowcharts on the process for the appointment of Justices of the Peace are appended.

2. Complaints and Dispute Resolution process: This national standards process supports the disciplinary regime set out in the Act. All low-level complaints are to be dealt with at the first instance by local Justices of the Peace Associations.

In the case of serious complaints, there are two processes:

3 Section 3B of the Justices of the Peace Act 1957. Note that this provision does not apply to Justices appointed before the commencement of the Justice of the Peace Amendment Act 2007.


• serious complaints against Ministerial JPs should be referred to the Office of Legal Counsel at the Ministry of Justice. A flowchart of the Complaints and Dispute Resolution process is appended; and

• serious complaints against Judicial JPs should be referred to the Chief District Court Judge for investigation; and

3. Retirement of JPs: Along with the authority to use the title “JP (retired)” the national standard provides for the Associate Minister of Justice and the Secretary for Justice to individually write to the retiring JPs acknowledging their service to the community.

The Justice of the Peace Best Practices Manual is available on the Ministry of Justice’s website www.justice.govt.nz.


2. WITNESSING OF DOCUMENTS

2.1 INTRODUCTION

This chapter covers the witnessing of documents. The description of what is a document is explained in this chapter, but Justices should remember that the following documents are NOT to be witnessed as described in this chapter:

• Declarations

• Affidavits and Affirmations.

For the completion of those documents, see chapters 3 and 4.

2.2 DEFINITION OF WITNESSING

• Witnessing is a process by which a person attests to the genuineness of the signature on a document by adding his or her own signature.

• The action of witnessing the execution of a document may be made either by another person or where specified by a person designated as having statutory authority to witness.

• It is preferable for a Justice NOT to witness the signature of a close relative, close friend or in a situation where pecuniary interest could be involved.

Justices can expect callers from time to time “wanting someone to witness a document”. Justices should be vigilant in seeing that the points mentioned in this chapter are followed. In this way a Justice may give evidence of the practice he or she invariably follows, even without recollection of the specific transaction.

2.3 WHEN A REQUEST IS MADE

• Establish the nature of the document to be witnessed.

• Advise the applicant not to pre-sign the document.

• Arrange a mutually acceptable time.

• Make sure that you can conduct the meeting in private.

• If you are alone, be mindful of safety issues.

2.4 COMMON LEGAL DOCUMENTS

Common legal documents are those that record the terms of agreement between parties, such as an agreement to repay a loan. That type of document is effective without witnessing, although it is often desirable that it should be witnessed to assist proof in


court if the need should ever arise. There is no statutory provision for the execution of that type of document, and any person can witness it.

2.5 DEEDS

There are, however, other documents that must be witnessed if they are to be legally effective. They are called “deeds” and are intended to give special solemnity to the act of one or more of the parties. They are widely used in New Zealand, the most common form being land transfer documents, which create and convey interests in land in New Zealand. Justices are entitled to act as witnesses to signatures on all deeds, and the procedure to be followed is set out below.

A deed can usually be recognised by the wording at the start of the document. Usually it will commence as follows:

This deed is made on the.......... day of................... 20…

Between...

Most solicitors place a backing sheet on the document that sets out the date, the names of the parties and the title of the document, for example:

Deed of Covenant, or

Deed of Separation, or

Deed of Indemnity, or

Deed of Acknowledgement of Debt, etc.

Land transfer documents usually have a title at the top of the document, such as:

Memorandum of Transfer, or

Memorandum of Mortgage, or

Application for Transmission.

Land transfer documents are very important as they are the basis of State guaranteed titles in New Zealand, and every precaution must be taken to avoid the possibility of fraud or forgery.

2.6 METHOD OF WITNESSING

Whether witnessing simple agreements, deeds, or land transfer documents, Justices should always follow the same procedure. Under the Land Transfer Act 1952 a Justice is specifically named as one of the few categories of people authorised to act as a witness to land transfer documents. That is because Justices are recognised as responsible witnesses and individuals who will ensure that the document is signed by the party named in the document. Therefore, it is important that Justices honour that responsibility by ensuring that they follow the procedure outlined in how to process a document:


1. The Justice should be satisfied that the person signing the document (the signatory) is the person named in the document. If the Justice personally knows the signatory there is no problem, but in many cases the signatory will be a stranger. In that event the Justice should look at the document and if, for example, the signatory is described in the document as “William Joseph Smith of Wellington, builder” he or she should ask the signatory questions along these lines:

What is your full name?

What is your address?

What is your occupation?

2. The signatory should then sign the document in the presence of the Justice. Sometimes the signatory has signed the document before coming to the Justice. In that event the Justice should ask the signatory to cross out the original signature and re-sign the document in front of the Justice. The Justice and the signatory must initial this alteration.

3. If the document has more than one page the Justice should note each page as being “Page 1 of 2” or “Page 1 of 3” depending on the number of pages. The Justice and the signatory should then initial each page so recorded.

4. If there are any alterations or erasures in the document then both the Justice and the signatory should initial in the margin of the document opposite the alteration or erasure. This is simply to confirm that the document was altered before the signatory signed it. For an erasure, the new word must also be written in the margin.

5. The Justice should then, in the presence of the signatory, write his or her usual signature followed by the letters “JP” or the words “Justice of the Peace” (the latter is a statutory requirement). The Justice should then print their name, occupation or Ministry of Justice number and location (City or Town) or apply a stamp with these details.

2.7 HOW AND WHERE TO WITNESS

The Justice should complete witnessing in the following manner:

AB Jones JP AB Jones JP Project Manager Or 23465 Wellington Wellington

If the Justice lives, for example, in a rural area it would be:

AB Jones JP AB Jones JP Farmer Or 23465 Nireaha Nireaha Eketahuna Eketahuna


The full residential address of a witness is not required, but no harm is done if it is inserted.

The form and layout of legal documents are often confusing to a lay person, but most solicitors, when sending a document to a client for execution, mention in the covering letter how it is to be signed and witnessed and lightly pencil on the document itself the places for signing and initialling. If that advice is not given, remember that most documents are signed at or near the end of the document and that there is a similarity of pattern in the wording of most documents indicating where the signatures are to go. Set out below is the common wording for a Memorandum of Transfer:

Signed by the above named William Joseph Smith as Transferor in the presence of

AB Jones JP AB Jones Project Manager or Apply stamp with details Wellington

2.8 LAND TRANSFER DOCUMENTS - EXCEPTIONS

Some land transfer documents are in the form of a declaration; common examples being “Application for Transmission” and “Declaration of Survivorship”. They should be completed in the manner described in the next chapter for the taking of declarations. It is not difficult to distinguish the two types.

Declarations start with such words as:

I, WILLIAM JOSEPH SMITH, of Wellington, builder, do solemnly and sincerely declare as follows:

Where they are to be signed, they conclude with such words as:

Declared at Wellington this .......... day of ........…......……..20.... before me:

Justice of the Peace

2.9 NORMAL LAND TRANSFER DOCUMENTS

Land transfer documents that are not declarations start with such words as:

WHEREAS WILLIAM JOSEPH SMITH, of Wellington, builder, is registered

Where they are to be signed they conclude with such words as:

Signed by the above named William Joseph Smith WJ Smith as transferor in the presence of:


2.10 WILLS

Witnesses to a will need no special qualifications. Nevertheless, if a Justice agrees to be a witness, there are basic legal requirements that need to be followed to ensure that a will is validly executed. Usually a will is signed in the presence of the solicitor who prepared it and, although Justices are seldom asked to be a witness, they should note the following special points if the occasion should ever arise:

1. There must be two witnesses, both present at the same time.

2. Both witnesses must see the testator sign the will.

3. Each witness and the testator must see the other witness sign. In other words, all three persons, the testator and the two witnesses, must be present together and each must see the others sign the will.

4. No document should be pinned to a will.

5. The testator and each witness must initial the foot of each page other than the page containing the signature.

6. The testator and each witness must sign in the margin opposite any alterations or erasures.

Apart from these special rules, the Justice should follow the procedure set out above for the general witnessing of documents.

The special importance attached to wills is not only because they affect property rights and inheritance, but because a will becomes operative only upon the death of the testator. Hence when it becomes operative the principal party, the testator, is no longer available to testify that it is his or her will and that it was signed in the proper manner.

2.11 DATES

All documents must be dated, and the date inserted before signing. This includes wills, declarations, affidavits, affirmations and land transfer documents. Justices should never pre-date or post-date documents.

Some experienced Justices keep a notebook or diary and having witnessed a document they record an entry such as this:

12.06.08 WJ Smith Memorandum of Transfer

That suffices to record the date and nature of the act of witnessing, and while it may never need to be looked at again it can serve as an essential memory aid if the date or the validity of the execution of the document is ever in question. Information relating to the ministerial function of a Justice may be subject to the Privacy Act 1993. However, a request for personal information in a Justice of the Peace’s record is limited to the particular entry pertaining to the applicant. Justices of the Peace are not required by law to keep records of their ministerial duties but the practice is recommended to all Justices.


2.12 INK OR PENCIL

Ink or ballpoint pens must be used on all documents.

Pencils should never be used for signing or witnessing a document simply because a few strokes with an eraser can remove all evidence of the execution of the document.

2.13 CONTENTS OF DOCUMENTS

It is NOT the responsibility of the Justice acting as a witness to read through the document, nor is it in normal circumstances the Justice’s responsibility to be satisfied that the signatory understands the contents of the document. Indeed, some signatories may well wish the contents of the document to remain private, and this is particularly true in the case of wills. Nevertheless, it is advisable to scan the documents for alterations, erasure, blanks or gaps. Do not complete any part of the document for the signatory.

The responsibilities of the Justice acting as a witness are to be reasonably satisfied as to the identity of the signatory, to ensure that the signatory signs in his or her presence or acknowledges that the signature on the document is their own, and to ensure that the witnessing is properly completed in the manner set out earlier in this chapter.

There is, however, one important exception, and that relates to visually impaired, ill or illiterate signatories.

2.14 VISUALLY IMPAIRED, ILL OR ILLITERATE SIGNATORIES

Some people cannot read, either because they are visually impaired, too ill, or illiterate. Some may, for similar reasons, be unable to write. In those cases they may sign a document by making a mark, usually a cross. It is then the duty of the Justice, acting as a witness, not only to see the signatory make his or her mark, but also to read through and explain the contents of the document to the signatory.

Usually the solicitor preparing the document is aware of the disability and he or she words the witnessing or attestation clause in the document so as to set out the facts.

A typical attestation clause in a Memorandum of Transfer would be typed as follows:

SIGNED by the above namedWILLIAM JOSEPH SMITH asTransferor by making his markhe being blind AND I CERTIFYthat before he executed it I firstread and explained the foregoingMemorandum of Transfer to himand that he appeared to understandit and made his mark thereto in mypresence:

William Joseph SmithXSignatory


The signatory then makes his mark underneath his typed name thus:

William Joseph SmithXSignatory’s Mark

The Justice then witnesses in the usual way beneath the attestation clause.

Likewise, in the case of wills, the witnessing or attestation clause is suitably worded by the solicitor preparing the will, but again the Justice acting as a witness has the added responsibility of ensuring that he or she reads through and explains the will to the testator and is satisfied that the testator appears to understand it. A typical attestation clause would be typed as follows:

SIGNED AND ACKNOWLEDGEDby the above named MOANA SMITH by making her mark thereto she being too ill to write her name as and for her last will and testament after it had been read over to her when she appeared to understand it in the sight and presence of us both present at the same time who at her request in her sight and presence of each other have hereunto subscribed our names as attesting witnesses:

After the will has been read over and explained to the testator, the date is inserted in the appropriate space in the will, the testator makes a mark in the presence of the two witnesses, and the two witnesses then sign, each adding his or her occupation and address. The finished result would then look like this:

SIGNED AND ACKNOWLEDGED

...............................................

...............................................

...............................................

................................................

as attesting witnesses:

AB Jones JPProject ManagerWellington

Emily M JonesReal Estate AgentWellington

Moana SmithXSignatory’s Mark

Moana SmithXSignatory’s Mark


2.15 ALTERATIONS AND ERASURES IN DOCUMENTS

Earlier in this chapter (2.6(4)) reference was made to alterations and erasures. The procedure to be followed is summarised in that paragraph. The importance of properly acknowledging alterations is to record that they have been made before and not after the signatory signed the document.

2.16 ALTERATIONS AND ERASURES IN WILLS

1. Any mistake should be corrected by drawing a line through the incorrect word and writing the correct word above it.

2. The testator and the two witnesses must all sign in the margin of the will opposite the alteration.

3. At the end of the attestation clause words should be added recording the alteration. If, for example, the name of a beneficiary was spelt “Margery” instead of its correct spelling “Majorie” the error would be corrected by drawing a line through “Margery” and writing “Majorie” above it. The following words would then be added to the attestation clause before the will was signed or witnessed:

…as attesting witnesses the word “Margery” in the third line of clause 4 hereof having been deleted and the word “Majorie” substituted before signature by the testator being so made.

2.17 FOR ALL OTHER DOCUMENTS

1. Again, any mistake should be corrected by drawing a line through the incorrect word and writing the correct word above it.

2. The signatory and the witness must both initial in the margin of the document opposite the alteration. Full signatures are not required, but no harm is done if the signatory or the witness writes their full signature.

2.18 RELATIVES

Although there is nothing to bar Justices from witnessing the signature of a member of their own family or of a relative, it is preferable if the witnessing be done by another Justice. Justices must not only appreciate the impartiality of their office but they must at all times appear to be impartial.

2.19 OTHER COMMON DOCUMENTS REQUIRING THE SIGNATURE OF A JUSTICE OF THE PEACE

One of the most frequent documents requiring the signature of a Justice of the Peace is that which verifies that a document is a true copy of the original. The original must always be sighted before the copy is endorsed.


It is particularly important to compare the copy with the original when the language of the document is not English and a translation is not available. The Justice endorses the copy with the words “Certified original sighted and that this is a photocopy of that original”, signs and dates the document. Alternatively a stamp may be used.

2.20 CERTIFYING COPIES OF DOCUMENTS

• Justices must sight the original document

• the Justice should satisfy him/herself that the photocopy is a TRUE COPY

Endorse the photocopy “Certified Original Sighted – and that this is a Photocopy of that Original”.

In the case of a Marriage or Birth Certificate, that is already marked as “A COPY” the Justice should write in, “I have sighted the Ministry of Justice copy of this document and certify that this is a true copy of that document.”

The Justice should sign the photocopy, add “JP”, occupation, location and date.

Add the words “Justice of the Peace for New Zealand ” if the document is to be sent out of New Zealand .

A self inking stamp with the appropriate wording can be purchased from Prestige Print as advertised in the Justices Quarterly. A similar stamp with your name, number and location is also available. If such stamps are used it is only necessary to add your signature and the date.

2.21 CONCLUSION

Justices are urged to read and to re-read this chapter until they are thoroughly familiar with their duties and their responsibilities as witnesses. Remember that the Justice’s prime responsibilities are to be reasonably satisfied as to the identity of the signatory, to ensure that the signatory signs the document in his or her presence or acknowledges that the signature on the document is their signature, and to ensure that the witnessing is properly completed.


3. DECLARATIONS

3.1 WHAT IS A STATUTORY DECLARATION?

A statutory declaration is a paper recording a statement, in writing, whereby the person making the statement declares it to be true. A statutory declaration contains a unilateral statement by a person whereby he or she verifies the truth of what he or she states.

Many statutes and statutory regulations specify that a person may make an application or take certain steps by statutory declaration, and most make it an offence punishable by fine or imprisonment if the contents of the declaration are proved to be false. There is a certain solemnity about declarations and it is very important that they be completed in the proper manner.

One of the functions and powers of a Justice of the Peace, set out in section 4 of the Justices of the Peace Act, is “to take oaths and declarations under the provisions of the Oaths and Declarations Act 1957 or any other enactment”. A declaration is not made under oath.

Justices of the Peace should be aware that declarations which depart from the prescribed form in a significant manner are not valid statutory declarations. Justices are not able to take declarations which have originated overseas where the authority is the Oaths and Declarations Act of another country. Justices of the Peace may witness the signature of a declarant on a declaration which does not conform to the requirement of a statute, e.g. a declaration associated with an insurance claim.

3.2 FORMS OF STATUTORY DECLARATIONS

The Oaths and Declarations Act 1957 prescribes the form of words to be used in preparing a declaration. This form is set out in the First Schedule to the Act and is to be followed whether it is a declaration required by statute or is a voluntary declaration that a person is entitled to make.

It commences:

I, (full name of declarant) of (place of abode and occupation) solemnly and sincerely declare that (here follow the facts that are declared, usually numbered in paragraphs).

It concludes:

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Act 1957.

DECLARED at ………………… this .… day of ………………..20....before me:



3.3 NON-REVOCATION OF POWER OF ATTORNEY

A very common type of statutory declaration is of non-revocation of power of attorney, often printed, for example, on the back of a share transfer form. To illustrate how such a declaration should appear in its completed form, a sample is set out below:

I, WILLIAM JOSEPH SMITH, of Wellington, builder, solemnly and sincerely declare as follows:

1. I have executed the within written transfer of shares as the attorney and in the name of the therein named and described John Charles Brown under and by virtue of a certain Power of Attorney dated the 10th day of December 1977.

2. I have not received any notice or information of the revocation of the said Power of Attorney by death or otherwise and I verily believe it to be in full force and effect.

And I make this solemn declaration conscientiously believing the same to be true by virtue of the Oaths and Declarations Act 1957.

DECLARED at Wellington this 12th day of June, 2008 before me:

AB JonesJustice of the Peace

3.4 MORE THAN ONE PERSON MAKING A STATUTORY DECLARATION ON THE SAME FORM

More than one person may make a declaration on the same form. In that event the opening and concluding words are different as follows:

The declaration commences:

WE, William Joseph Smith, of Wellington, builder, and John Charles Brown, of Wellington, plumber, do severally solemnly and sincerely declare as follows:

The concluding clause (or attestation clause) is, if they are both present to sign it together:

SEVERALLY DECLARED by the said WILLIAM JOSEPH SMITH and JOHN CHARLES BROWN at Wellington

this …….. day of ………………… 20.... before me


If they are not both present together, then a separate attestation clause is inserted for each declarant as follows:

WJ Smith


DECLARED by the said WILLIAM JOSEPH SMITH at Wellington this…….day of …………….. 20.... before me:


DECLARED by the said JOHN CHARLES BROWN at Wellington this …... day of ……………….20.... before me:


3.5 HOW A STATUTORY DECLARATION IS MADE

There are several steps involved in taking a declaration. Remember that the foot of the uncompleted declaration will usually look something like this:

DECLARED at ……………… this ……. day of

…………………..20.... before me:

Justice of the Peace, Solicitor, Registrar, or other person authorised to take a statutory declaration.

As the various steps are explained, the above sample form will be completed to illustrate the procedure.

1. The person making the declaration (the declarant) must be personally present before the Justice. Justices must never take a statutory declaration handed to them by somebody other than the declarant with a request that they sign it.

2. The Justice should glance through the declaration not to learn its content, but to ensure that any blanks or gaps are filled in. If there are blanks or gaps in the declaration, a line should be drawn through them.

3. Any alterations or erasures are attended to in the prescribed way.

4. The declarant signs the declaration with his or her usual signature, either in ink or ballpoint pen thus:

DECLARED at Wellington this 12th day of June 2008 before me:


The declarant may have signed the declaration before presenting it to the Justice. The Justice should ask the declarant to cross out the original signature and re-sign the declaration in front of the Justice. The Justice and the declarant must initial this alteration.

WJ Smith


5. The declarant then solemnly declares as to the truth of the contents. The Justice accomplishes this by asking the declarant the following question:

“Do you solemnly and sincerely declare that the contents of this your declaration are true?”

To which the declarant must answer:

“Yes” or “I do”.

If there is more than one declarant to the same declaration, the question should be asked of each declarant.

6. The Justice fills in the place and date, and deletes the references to the possible other witnesses thus:

DECLARED at Wellington this 12th day of June 2008 before me:


The Justice then signs the declaration thus:

DECLARED at Wellington this 12 day of June 2008 before me:

AB JonesJustice of the Peace, Solicitor, Registrar, or other person authorised to take a statutory declaration.

Justices do not need to write the letters “JP” after their name, as their status is already typed or printed beneath their signature, but no harm is done if a Justice appends those letters.

Generally, that would complete the steps in taking a declaration, but occasionally the declaration will refer to some other document that is annexed to it. The clause in the declaration might read:

I have received a letter from the applicant, which letter is annexed hereto and marked “A”.

In that event, so as to identify the attachment as being the document referred to in the declaration the attachment must have what is called an “exhibit note” typed or written upon it. The Justice must ensure that the exhibit note is completed and signed. The exhibit note in this instance would, before completion, read:

This is the letter marked “A” referred to in the annexed declaration of WILLIAM JOSEPH SMITH made at ………………. this ……. day of ………………20... before me:


WJ Smith


After completion by the Justice the exhibit note would read:

This is the letter marked “A” referred to in the annexed declaration of WILLIAM JOSEPH SMITH made at Wellington this 12th day of June 2008 before me:


3.6 MORE THAN ONE PAGE

Frequently a declaration will consist of two or more pages with the attestation clause on the last page. To identify the earlier pages as belonging to the same document Justices should note each page as being “Page 1 of 2” or “Page 1 of 3” depending on the number of pages in the declaration. The Justice must then initial and date each of the preceding pages. Thus, if Mr. AB Jones, JP, had taken the declaration on 12 June 2008, at the foot of each page except the one containing the attestation clause he should write:

ABJ 12/06/2008

The declarant is similarly required to initial or mark each page preceding the attestation clause.

3.7 ALTERATIONS AND ERASURES

When there is an alteration in the declaration, the word to be altered must be crossed out and the correct word written clearly above it. If there is an erasure, the words written over the erasure must be re-written in the margin of the declaration.

The Justice and the declarant must initial or sign in the margin beside all alterations and erasures.

3.8 VISUALLY IMPAIRED, ILL, OR ILLITERATE DECLARANTS

As in the case of ordinary documents, where a declarant cannot sign his or her name to a declaration because of visual impairment, illness or illiteracy, the declarant may make a mark, usually in the form of a cross. It is the duty of a Justice to read the declaration through to the declarant and explain it, and be satisfied that the declarant appears to understand it.

In that event, the attestation clause must be expanded in the following manner:

DECLARED at Wellington this 12th day of June 2008 before me, and I certify that I first read and explained the foregoing declaration to the declarant and that he appeared to understand the same and made his mark thereto in my presence:


William Joseph SmithXDeclarant’s Mark


3.9 RELATIVES

There is nothing to prohibit Justices from taking declarations by members of their families or relatives, but as a matter of practice it is undesirable and it is far preferable that it be declared before another Justice.

3.10 SUNDAYS

A declaration may be taken at any time of the day or night including a Sunday.

3.11 DECLARATIONS ORIGINATING OVERSEAS

It is important to ensure that you have the jurisdiction to act. As a general rule, Justices may not witness declarations which are required to be made under the Oaths and Declarations Acts of other countries. It may be necessary to check with the appropriate High Commission, Embassy or Consulate. They may, however, take such declarations where authority is given on the form. The words may include a statement such as “may be witnessed by a person authorised to take statutory declarations in the country where the declaration is made”. When signing the attestation clause the Justice must include their name, location and the words “Justice of the Peace for New Zealand”.


4. AFFIDAVITS AND AFFIRMATIONS

4.1 FORMS OF AFFIDAVITS AND AFFIRMATIONS

An affidavit is a statement in writing and on oath, sworn before a person who has authority to administer it.

An affirmation is an alternative to an oath and is administered to a person whose religious or other beliefs prevent him/her from taking an oath.

Both are a more solemn form of recording a truthful statement, and are used in connection with court proceedings. An affidavit is similar to a declaration but it is sworn under oath. An affirmation has the same effect, but is not sworn under oath.

Section 4 of the Oaths and Declarations Act 1957 entitles any person as of right to make an affirmation instead of taking an oath. Justices should not query the reason for a person choosing to make an affirmation rather than taking an oath.

An affidavit commences:

I (full name of deponent) of (place of residence and occupation) make oath and say as follows: (here follows the facts to which the individual swears, usually numbered in paragraphs).

An affidavit concludes with this clause (called a “jurat”):

SWORN at ………………. this …day of ……………. 20.... before me


An affirmation commences:

I (full name of the deponent) of (place of residence and occupation) solemnly and sincerely affirm as follows: (here follows the facts which the individual affirms, usually numbered in paragraphs).

An affirmation concludes:

AFFIRMED at ………………this ... day of ……………. 20.... before me:


If more than one person joins in the same affidavit or affirmation, the wording of the form requires alteration. An affidavit or affirmation would commence:

WE, WILLIAM JOSEPH SMITH, of Wellington, builder and JOHN CHARLES BROWN, of Wellington, plumber, severally make oath and say (or severally solemnly and sincerely affirm) as follows:


The joint affidavit or affirmation would conclude, if they are both present to sign it together:

SEVERALLY SWORN (or severally affirmed) by the said WILLIAM JOSEPH SMITH andJOHN CHARLES BROWN at WELLINGTON this …… day of ……………….. 20.... before me:


If they are not both present then a separate jurat is typed in for each deponent.

4.2 HOW IS AN AFFIDAVIT SWORN OR AN AFFIRMATION AFFIRMED?

The steps are explained below:

1. The person who is to swear the affidavit (the deponent) must be personally present before the Justice. The person who is to affirm the affirmation (also called the deponent) must be personally present before the Justice.

2. The Justice should glance through the affidavit or affirmation, not to learn its contents, but to ensure that any blanks or gaps are filled in.

3. The Justice fills in the place and date of the jurat as follows:

SWORN at Wellington this 12th day of June 2008before me:

Where an affirmation has been made the Justice fills in the place and date of the jurat as follows:

AFFIRMED at Wellington this 12th day of June 2008 before me:

If the document has been prepared as an affidavit but is to be affirmed, the Justice should delete the words at the start “make oath and say” and write above them “solemnly and sincerely affirm”.

Frequently an affidavit or affirmation will consist of two or more pages with the jurat on the last page. To identify the earlier pages as belonging to the same document Justices should note each page as being Page 1 of 2 or Page 1 of 3 depending on the number of pages in the affidavit or affirmation. The Justice and the deponent must then initial and date each of the preceding pages. Therefore, if Mr AB Jones had deposed the affidavit or affirmation on 12 June 2008, at the foot of each page except the one containing the jurat, he should write:

ABJ 12/06/2008

The deponent is similarly required to initial or mark each page preceding the jurat.


4. Where there is an alteration or erasure in the affidavit or affirmation, the word to be altered must be crossed out and the correct word typed or written clearly above it. If there is an erasure, the words written over the erasure must be re-written in the margin of the affidavit or affirmation.

The Justice and the deponent must initial or sign in the margin beside all alterations and erasures.

5. The deponent must sign the affidavit, either in ink or ballpoint pen, in the following manner:

SWORN at Wellington this 12th day of June 2008 before me: WJ Smith

Where an affirmation has been made the deponent signs the affirmation, either in ink or ballpoint pen, in the following manner:

AFFIRMED at Wellington this 12th day of June 2008 before me: WJ Smith

If the deponent has signed the affidavit or affirmation prior to presentation to the Justice, then the Justice should ask the declarant to cross out the original signature and re-sign the affidavit or affirmation in front of the Justice. The Justice and the deponent should initial this alteration.

6. The person taking the oath or affirmation is under a duty to satisfy himself or herself as to the concurrence of the deponent with its contents and must believe in their truth. To do so the Justice should ask these questions:

“Have you read this affidavit (or affirmation)?” “Is it true and correct?”

7. If the Justice is satisfied, the deponent should then be asked to swear the affidavit or affirm the affirmation.

If the deponent is swearing an affidavit, the deponent holds in either hand (although it is customary to hold it in the right hand) a copy of the Bible, the New Testament or the Old Testament.

The Justice then asks the following question:

“Do you swear by Almighty God that the contents of this your affidavit is true, so help you God?”

If the deponent is affirming an affirmation the Justice asks the following question:

“Do you solemnly and sincerely affirm that the contents of this your affirmations are true?”

In either case the deponent must answer “Yes” or “I do”.

If there is more than one deponent to the same affidavit or affirmation the appropriate question should be asked of each deponent.

8. I f the document has been prepared as an affidavit but is to be affirmed, the Justice


should delete the words at the start “make oath and say” and write above them “solemnly and sincerely affirm”.

9. The Justice then signs the affidavit or affirmation in the following manner:

SWORN at Wellington this 12th day of June 2008 before me:


AFFIRMED at Wellington this 12th day of June2008 before me:


It is not necessary for Justices to write the letters JP after their name if their status is already typed or printed beneath their signature, but no harm is done if they append those letters.

4.3 ALTERATIONS AND ERASURES

Where there is an alteration in the affidavit or affirmation, the word to be altered must be crossed out and the correct word typed or written clearly above it. If there is an erasure, the words written over the erasure must be re-written in the margin of the affidavit or affirmation.

The Justice and the deponent must initial or sign in the margin beside all alterations and erasures.

4.4 VISUALLY IMPAIRED, ILL OR ILLITERATE DEPONENTS

Where a deponent cannot sign his or her name because of visual impairment, illness or illiteracy, the deponent may make a mark, usually in the form of a cross, and the Justice shall certify in the jurat:

1. that the affidavit or affirmation was read and explained by him to the deponent, and

2. that the deponent appeared perfectly to understand the affidavit or affirmation, and

3. that the deponent wrote his signature or made his mark in the presence of the Justice.

In that event the jurat must be expanded in the following manner:

SWORN at Wellington this 12th day of June 2008 before me and I certify that I first read and explained the foregoing affidavit to the deponent and that he appeared perfectly to understand the same and made his mark in my presence.


WJ Smith

WJ Smith


Affirmed at Wellington this 12th day of June 2008 before me and I certify that I first read and explained the foregoing affidavit to the deponent and that he appeared perfectly to understand the same and made his mark in my presence.

Generally, that would complete the steps in deposing an affidavit or affirmation, but occasionally the affidavit or affirmation will refer to some other document that is annexed to it.

4.5 DOCUMENTS ANNEXED TO AN AFFIDAVIT OR AFFIRMATION

It is important to identify the attachment as being the document referred to in the affidavit or affirmation, the attachment must have an “exhibit note” typed or written upon it. The Justice must ensure that the exhibit note is completed and signed. The exhibit note, after completion by the Justice would read:

This is the letter marked “A” referred to in the annexed affidavit (or affirmation) of William Joseph Smith sworn (or affirmed) at Wellington this 12th day of June 2008 before me:


4.6 SUNDAYS

Any affidavit may be sworn or an affirmation affirmed on any day, including a Sunday.

WJ SmithXDeponent’s Mark

WJ SmithXDeponent’s Mark


5. OATHS OR AFFIRMATIONS OF ALLEGIANCE

5.1 INTRODUCTION

It is appropriate to include in this manual a reference to the Oath of Allegiance. As is mentioned in the introduction to this manual all Justices must take that oath upon appointment, but in certain cases they may also administer the oath.

5.2 TYPES OF OATHS AND AFFIRMATIONS OF ALLEGIANCE

Two types of oaths or affirmations of allegiance that Justices may be asked to administer are:

1. A special form of oath of allegiance by members of the Police.

2. An oath of allegiance by persons who are becoming New Zealand citizens by naturalisation or registration. This oath is administered by a mayor (unless otherwise specifically authorised by the Minister of Internal Affairs), in his or her capacity as a Justice, at a civic function.

An oath is a solemn appeal to God, and likewise an affirmation is a solemn statement, in witness that a promise will be kept. If a Justice is asked to administer an oath or affirmation the Justice should attach proper solemnity to the act and be meticulous in administering it properly.

5.3 NEW ZEALAND CITIZENSHIP APPLICATIONS

The first step towards New Zealand citizenship is to complete an application form. Justices of the Peace are often called upon to administer the declaration that is part of this form and certify, by way of identification, a photograph of the person making the declaration if the applicant is over 14 years of age. It is important to note that the declaration and certification on the back of the identification photograph must bear the same date.

5.4 THE PROCESS OF BECOMING A CITIZEN

It is now normal practice for all applicants for New Zealand citizenship to have the Oath or Affirmation of Allegiance administered at a public ceremony. Under special circumstances, by an application made by the applicant to the Minister of Internal Affairs through the Citizenship Office, the Minister may grant a dispensation to have the Oath or Affirmation of Allegiance administered in a private ceremony by a Justice of the Peace.

A Justice of the Peace is a person authorised to administer the Oath or Affirmation of Allegiance. The Ceremonies Team will send the appropriate form to the Justice, who is required to complete and return it. For the purpose of this form the Justice becomes the administrator. It should be noted that the date set for the ceremony should be at least


two or three weeks after the date of reply and must contain the administrator’s address, telephone number and include full name and signature.

The ceremony must take place on the date specified on the Certificate of Citizenship. The steps to follow are these:

1. The deponent will already have the form of oath or affirmation.

2. The Justice should ensure that the full name of the deponent and the place and date of swearing are inserted.

3. The deponent should then stand, holding a Bible, New Testament or Old Testament in his or her hand if it is an oath, or nothing if it is an affirmation, and then read aloud the form.

4. The deponent and the Justice then sign the form in the spaces provided.

5. The form should then be returned to the Department of Internal Affairs, Ceremonies Team, P O Box 10-526, Wellington.

5.5 THE OATH OF ALLEGIANCE

“I, (candidate’s full name), swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Queen of New Zealand,her heirs and successors, according to law, and that I will faithfully observe the laws of New Zealand and fulfil my duties as a New Zealand Citizen. So help me God.”

5.6 THE AFFIRMATION OF ALLEGIANCE

“I, (candidate’s full name), solemnly and sincerely affirm that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Queen of New Zealand,her heirs and successors, according to law, and that I will faithfully observe the laws of New Zealand and fulfil my duties as a New Zealand Citizen.”


6. APPLICATION FOR THE DISSOLUTION OF MARRIAGE/CIVIL UNION

A Justice of the Peace may be approached with a request to process documents relating to the dissolution of a marriage or civil union.

This could be by a single party seeking dissolution or by a joint application.

6.1 APPLICATION AND AFFIDAVIT BY ONE PARTY FOR ORDER DISSOLVING A MARRIAGE/CIVIL UNION

An application and affidavit in support is filed by one party (either the husband, wife or partner) seeking an order dissolving their marriage/civil union and consenting to the order being made in their absence.

When swearing or affirming the affidavit in support of the application for an order dissolving a marriage/civil union the Justice should check that:

• the full name, address and occupation of the deponent (the applicant) are completed

• the affidavit is completed in full, i.e. all sections of the affidavit are completed and where there are options that do not apply they are deleted

• the signature of the deponent is completed in your presence

• the Oath or Affirmation is administered appropriately

• it is noted in the appropriate places on the affidavit whether the affidavit was sworn or affirmed

• the affidavit is signed in the appropriate place and the designation recorded i.e. by the Justice of the Peace

• the documents attached to the affidavit (usually a marriage/civil union certificate and a separation agreement) are formally exhibited, completed and signed by the person swearing or affirming the affidavit

• once all the matters have been completed all the documents should be returned to the applicant to allow him or her to file them at the nearest Family Court office.

6.2 APPLICATION AND AFFIDAVIT FOR JOINT ORDER DISSOLVING A MARRIAGE/CIVIL UNION

An application and affidavit is filed jointly by both parties or by just one party. When swearing or affirming the Justice should check the matters previously mentioned, remembering, of course, that if you are swearing or affirming the affidavit in respect of both parties then the jurat should be completed accordingly.


6.3 AFFIDAVIT OF SERVICE

Justices of the Peace may be approached by clients seeking to have an affidavit of service relating to an application for an order dissolving a marriage/civil union sworn or affirmed.

When swearing or affirming affidavits of service check that:

• the same person who actually served the documents on the respondent is one and the same person who is seeking to have the affidavit of service sworn or affirmed

• the document bears the full name, address and occupation of the deponent (the person who served the documents)

• the affidavit of service is completed in full, i.e. all sections of the affidavit are completed and where there are options that do not apply they are deleted

• the signature of the deponent is completed in your presence

• the Oath or Affirmation is completed appropriately

• the appropriate places on the affidavit are noted as to the affidavit being sworn or affirmed

• the Justice of the Peace signs in an appropriate place and their designation is also noted

• the exhibits attached to the affidavit are completed and signed by the Justice of the Peace as the person swearing or affirming the affidavit.

Matters to be aware of:

• The applicant for an application for an order dissolving a marriage/civil union (i.e. the husband, wife or partner) cannot serve the documents on the respondent themselves.

• If the person serving the documents does not personally know the respondent then either the acknowledgement of service must be signed by the respondent, or the deponent (the person serving the documents) must identify the person they are serving (the respondent) by a photograph. This photograph must then be exhibited to the affidavit of service as exhibit “C”.

• The documents cannot be served on a Sunday, Christmas Day, New Year’s Day, Good Friday or Anzac Day.

• Where service is effected in New Zealand it must be effected at least 21 clear days prior to the Registrar’s list date allocated to the matter.

6.4 AFFIDAVIT OF IDENTIFICATION

Occasionally a Justice of the Peace may be approached by an applicant for an order dissolving a marriage/civil union to have an affidavit of identification sworn or affirmed.

These affidavits only need to be completed when dissolution documents have been served on a respondent by a person who did not personally know the respondent. In this


case the applicant must swear or affirm an affidavit either identifying the respondent’s signature on the affidavit of service or identifying the photograph that was used by the person serving the dissolution documents.

All matters previously mentioned should be checked when swearing or affirming these affidavits. When swearing or affirming an affidavit of identification, the applicant must have access to the affidavit of service to identify either the signature or photograph of the respondent.

Note: Applications for dissolution of a marriage or civil union cannot be made unless the parties have been separated for two years and one day.

6.5 ACKNOWLEDGEMENT OF SERVICE

This document is only required when the respondent acknowledges that he or she was served with a copy of the spouse or partner’s application for dissolution and the associated affidavit and notice.

6.6 AN EXAMPLE OF AN EXHIBIT NOTE

Exhibit NoteThis is the annexure marked………………….referred to in theaffidavit of………………………………………………………….and sworn at………………………………………………………..this………………………day of……………………..…before me.

Signature………………………………..


7. OTHER DUTIES OF JUSTICES OF THE PEACE

Justices of the Peace are often selected for other tasks that fall outside the definition of Ministerial duties. Among these are acting as a nominated witness for children and young persons detained by police for interviews and observing the process of commital of patients under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

7.1 THE NOMINATED WITNESS – DEFINITION

A nominated witness is a person who is nominated by the Police to attend and observe an interview between a police officer and a child or young person under 17 years of age in terms of Section 222 (1)(d) of the Children, Young Persons and Their Families Act 1989.

One of the essential elements of Section 222 is that there must be a parent or guardian present, or another adult nominated by the young person. If none of these persons are available or the young person declines to accept any of these options, the Police can nominate an adult of their choice providing that such a person is not an enforcement officer.

7.2 THE ROLE OF THE NOMINATED WITNESS

The main role of the nominated witness is to ensure that the young person to be interviewed is fully aware of their rights under the Act before the interview commences. This not only means the witnessing of the reading of their rights by the interviewing officer, but also that the young person understands them. A report form with a checklist is used to record each item as it is read out.

The nominated witness does not play an active role in the course of the interview. There is provision on the report form to record whether undue pressure was applied to the young person. In that event the matter is taken up with a senior Police Officer.

Interviews can be simple questions and answers recorded in a notebook, a formal written statement, or a video recorded interview. In the case of written statements, the nominated witness also signs the statement as a witness to it being a correct record of the interview and to the young person’s signature.

7.3 PARTICIPATION

There is no national standard adopted by the Police for selecting a nominated witness. However, Justices of the Peace who do not undertake judicial duties and wish to participate in the scheme should contact their local Association. As this is a community service it adds another dimension to the role of Justice of the Peace.


7.4 JUSTICES OF THE PEACE SUPPORT PERSON ROLE

The Mental Health (Compulsory Assessment and Treatment) Act 1992 is designed to be a therapeutic “tool” for appropriate mental health treatment and assessment. The various sections describe processes, rights, responsibilities and actions for people in various roles.

7.5 DEFINITION OF “MENTAL DISORDER”

An abnormal state of mind (whether of a continuous or intermittent nature), which is characterised by delusions, or by disorders of mood, volition, cognition.

AND

That abnormal state of mind must be of such a degree that it:Poses a serious danger to the health or safety of the person or others.

OR

Seriously diminishes the capacity of the person to care for himself or herself.

The following are excluded from the criteria:

• Political, religious or cultural beliefs

• Sexual preferences

• Criminal or delinquent behaviour

• Substance abuse

• Intellectual disability

7.6 THE ASSESSMENT AND TREATMENT PROCESS

Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 governs the assessment and treatment process. People who have been placed under the Mental Health (Compulsory Assessment and Treatment) Act are legally required to accept treatment and engage with mental health services.

7.7 SECTION 9 (2)(d) – THE DULY AUTHORISED OFFICER AND JUSTICE OF THE PEACE ROLE

The responsibilities of the Duly Authorised Officer include:

(d) ensuring that the purpose of the assessment examination and the requirement of the notice given under paragraph (c) are explained to the proposed patient in the presence of the proposed patient’s family or a caregiver or other person concerned with the welfare of the proposed patient.


The proposed patient has the right to receive a written statement of his/her rights and to be kept informed of his/her legal status as a patient. Their cultural identity must be respected. The Duly Authorised Officer must deliver the section 9 notice with an explanation of its meaning under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

The responsibilities of the Justice of the Peace acting in the support person’s role is to:

• support the proposed patient

• to be present and observe the process

• observe that the proposed patient has had an explanation of his/her rights.

The process is simple. The Justice of the Peace:

• meets the duly authorised officer

• meets the patient and introduces himself/herself

• witnesses the delivery of the section 9 notice

• leaves once the section 9 notice has been given.

If there are any concerns with the process, the Justice of the Peace should talk with the duly authorised officer at the time or on the next working day.

7.8 ELECTIONS AND THE ROLE OF JUSTICES OF THE PEACE

Justices of the Peace play an important role in maintaining the integrity of the electoral system. It is the role of the Justice of the Peace to act as an independent observer for various stages of the electoral process.

7.9 APPOINTMENT OF JUSTICES OF THE PEACE FOR ELECTORAL DUTIES

Returning Officers will contact their local Justice Association to obtain names of Justices of the Peace who are available during the election period and suitable to carry out the role.

A Justice of the Peace will be invited by the Returning Officer to assist with the election process and will receive a fee for their services.

7.10 ROLES AND RESPONSIBILITIES IN THE ELECTORAL PROCESS

A Justice of the Peace is required to be present at different stages of the electoral process. They may be appointed to carry out the following roles and responsibilities:


• A Justice of the Peace must accompany an issuing team as an independent observer during the issuing of advance votes in hospitals and rest homes if no scrutineers have been appointed by local party officials.

• A Justice of the Peace must accompany an issuing team as an independent observer during the issuing of advance votes if an issuing team visits a voter at home.

• A Justice of the Peace must be present throughout the Official Count at the electorate headquarters to:

1. Observe the progress of the count.

2. Initial any amendment to the results counted on election night for each polling place.

3. Sign the official certificate of results for each polling place as it is completed.

4. Certify the progress of the count at the end of each day by signing the official notification certificate of the results for the electorate.

Note: A Justice of the Peace cannot be employed in another role, such as an Issuing Officer of Advance Votes, while they are undertaking the duties of a Justice of the Peace.


8. JUSTICES’ ASSOCIATIONS

New Zealand is divided into 29 regional incorporated Associations of Justices as follows:

Ashburton North Otago

Auckland Northland

Bay of Plenty Otago

Canterbury Rotorua and Districts

Central Districts South Canterbury

Eastern Bay of Plenty South Otago

Far North South Taranaki

Franklin and Districts Southland

Gisborne Taranaki

Gore Waikato

Hauraki Wairarapa

Hawkes Bay Wanganui

Hutt Valley and Districts Wellington

Marlborough West Coast

Nelson Bays

Each of the Associations are affiliated to the national body, the Royal Federation that meets in conference once a year. The Royal Federation enables all Justices throughout New Zealand to make representations and to speak with a single voice. The Federation publishes an official journal: The New Zealand Justices’ Quarterly.

Upon appointment, Justices may join their regional Association. All Justices have a right to join, and are invited to do so as soon as their appointment is gazetted. The advantages of supporting the activities of the regional Association are numerous, and include:

• participation in the training and educational programmes which each association organises for its members

• provision of ongoing support in resolving any queries that may arise when carrying out the ministerial function of a Justice

• meeting with fellow Justices at business meetings, luncheons, and other social occasions, and hearing addresses and exchanging experiences with fellow Justices. This will better enable a Justice to carry out the duties of his or her office

• receipt of The New Zealand Justices’ Quarterly

• receipt of a copy of the approved Code of Ethics for the New Zealand Justices of the Peace, which defines the ethical standards expected of all Justices


• processing of applications to attend the Open Polytechnic of New Zealand Judicial Course which is a prerequisite for approval for court work.


9. CONCLUSION

The theme throughout this manual has been to stress the importance, the dignity, and the responsibility of accepting appointment as a Justice of the Peace. Active membership of one of the regional incorporated Associations of Justices of the Peace will reinforce that theme and the ongoing training provided will, in a very practical way, assist each Justice to carry out properly and efficiently those ministerial duties and obligations that have been outlined in this publication.

Nominee completes JP Nomination Form and attaches:• two supporting letters from community groups• curriculum vitae• paragraph stating reasons for wishing to become a JP.

Nominee submits JP Nomination Form (and attachments) to local electorate Member of Parliament.

Local electorate Member of Parliament reviews nomination.

Member of Parliament signs and submits JP Nomination Form (and attachments) to Minister of Justice or delegated

Associate Minister.

Offi ce of Minister of Justice or delegated Associate Minister acknowledges receipt of nomination and

forwards nomination to Ministry of Justice (Offi ce of Legal Counsel).

Ministry of Justice (Offi ce of Legal Counsel) writes to nominee acknowledging application and advising of next

steps in appointment process.

If JP Nomination Form is submitted to a list

Member of Parliament, he/she reviews

nomination.

List Member of Parliament signs and

submits JP Nomination Form (and attachments)

to local electorate Member of Parliament.

Member of Parliament writes to nominee to advise them that

nomination will not be progressing.

Member of Parliament endorses nominee

Member of Parliamentdoes not endorse nominee

1. Best Practice – Nomination of Justices of the Peace

Key to abbreviations

JP: Justice of the Peace

10. APPENDICES

2. Best Practice – Interview of Nominee

continues on the next page

Ministry of Justice (Offi ce of Legal Counsel) obtainsCriminal History check within 3 weeks of receiving

nomination.

Ministry of Justice prepares 2 interview packages: one for local JP Association and one for local Court Registrar.

Packages contain:Justice of the Peace Nomination Form TemplatesNominee’s curriculum vitae

Ministry of Justice sends interview package to local Court Registrar.

Ministry of Justice sends interview package to Royal Federation.

Royal Federation sends interview package to local JP Association.

JP Association and Court Registrar arrange joint interview with nominee within 14 days of receiving

interview package.

JP Association representative and Court Registrar interview nominee together.

JP Associations use:

Justices of the Peace Association Interview Template

Guidelines for Justice of the Peace Appointment Interview

Court Registrars use:

District Court Registrar’s Justices of the Peace Interview Template

Guidelines for District Court Registrars on the Appointment of Justices of the Peace Appointment Interview

Local Court Registrar completes confi dential report and sends to

Ministry of Justice (Offi ce of Legal Counsel).

Local JP Association completes confi dential report and sends to

Royal Federation.

Royal Federation reviews confi dential report and sends to

Ministry of Justice (Offi ce of Legal Counsel).

Ministry of Justice (Offi ce of Legal Counsel) prepares report on nominee’s suitability within 2 weeks of receiving

confi dential reports.

Report recommends that Minister of Justice or delegated Associate Minister provisionally approve or decline the

nominee to undertake the induction training.

Ministry of Justice sends report to Minister of Justice or delegated Associate Minister.

Within 14 days of interviewWithin 14 days of interview

from the previous page



JP Association: Justices of the Peace Association

Royal Federation: Th e Royal Federation of New Zealand Justices’ Associations (Inc)

3. Best Practice – Ministerial Justice of the Peace Induction Training


Nominee declined for training

Nominee provisionally approved for training

Minister of Justice or delegated Associate Minister advises Ministry (Offi ce of Legal Counsel) if nominee provisonally approved to undertake Ministerial JP Induction Training,

or the nomination is declined.

• Ministry of Justice advises Royal Federation of nominee’s provisional approval for Ministerial JP Induction Training.

• Minister of Justice or delegated Associate Minister writes to nominating Member of Parliament to advise that nominee has been provisionally approved.

Royal Federation sends the Ministerial JP Induction Training material to local JP Association. Th is information

is then sent to nominee.Self-study materials include:

Manual for New Zealand Justices of the Peace

Guide to Ministerial Duties for Justices of the Peace CD-ROM

Local JP Association monitors progress of nominee to ensure training is completed within 4 weeks of receiving

self-study materials.

Local JP Association reports to Royal Federation on nominee completion of Ministerial JP Induction Training.

Royal Federation advises Ministry of Justice (Offi ce of Legal Counsel) in writing that nominee completed (or did

not complete) the training.

Minister of Justice or delegated Associate Minister writes to

nominating Member of Parliament to advise that nomination will not be

progressing.


Ministry of Justice advises Minister of Justice or delegated Associate Minister that the nominee has successfully

completed Induction Training.

Minister of Justice signs Warrant of Appointment.

Governor-General signs Warrant of Appointment.

Ministry of Justice organises for appointment of JP to be gazetted.

Minister of Justice or delegated Associate Minister writes to nominating Member of Parliament to advise of nominee’s

appointment.

Nominating Member of Parliament advises nominee of their appointment as a JP.

JP sworn in before a District Court Judge. Signed required oaths returned to Ministry of Justice

(Offi ce of Legal Counsel).


nominating electorate Member of Parliament

to advise that nomination will not be progressing.


nominating electorate Member of Parliament to advise them of the successful completion

of Ministerial Induction Training by nominee.

Nominee does not complete trainingNominee completes

training



JP Association: Justices of the Peace Association


JP sworn in before a District Court Judge. Signed Oath of Allegiance and Judicial Oath returned to

Ministry of Justice (Office of Legal Counsel).

4. Best Practice – Complaints and Dispute Resolution Process for Ministerial Justices of the Peace

Complaints and Disputes Resolution

Th e Justice of the Peace Amendment Act 2007 (section 5) introduces a new range of disciplinary measures to give greater fl exibility in dealing with complaints against JPs and a wider range of sanctions than currently available. Th e complaints and disciplinary process is outlined below.

Ministerial Justices of the Peace

‘Low level’ complaint

Serious misconduct alleged, or JP concerned not a

member of JP Assn

Complaint received

Referred to Ministry of Justice (Offi ce of Legal Counsel).

Ministry of Justice (Offi ce of Legal Counsel) notifi es Royal Federation of complaint.

Ministry of Justice (Offi ce of Legal Counsel) investigates complaint.

Ministry of Justice reports to the Minister of Justice and, if the Minister agrees, writes to JP concerned, and seeks

explanation of their actions.*


Local JP Association and Royal Federation agree

how to manage complaint. Royal Federation keeps

record of complaint.

If complaint cannot be resolved

Royal Federation keeps record of complaint.

Royal Federation advises local JP Association of

complaint.

Ministry of Justice advises JP, complainant and Royal Federation of

outcome.

If no grounds for recommending disciplinary actionIf grounds for recommending

disciplinary action

Note: A ‘low level’ complaint is one that is not serious enough to

justify removal or suspension of a Ministerial JP

* Note that a JP may be removed immediately without written notice.


Ministry of Justice prepares report to Minister of Justice or delegated Associate Minister on misconduct, and

recommended form of disciplinary action under section 5 or section 5D of the Justices of the Peace Act 1957.

Minister of Justice may recommend to Governor-General disciplinary action under section 5 or section 5D of the

Justices of the Peace Act 1957.

Minister of Justice or delegated Associate Minster advises JP, complainant and Royal Federation of outcome.

JP concerned may respond to Ministry of Justice in writing within 20 working days.

Ministry of Justice considers written response from JP.

Ministry of Justice advises JP, complainant and Royal Federation of

outcome. If explanation satisfactory

If explanation not satisfactory



JP Association: Justice of the Peace Association
