What are the Key Requirements for Witnessing an Affidavit? 

Summary

• An affidavit must be witnessed by an approved witness, such as a lawyer, justice of the peace, public notary, judge, or police officer, and must be sworn or affirmed in the witness’s presence before signing.
• Affidavits cannot be executed using electronic signatures and require traditional wet ink signatures on each page by both the deponent and the approved witness.
• Remote witnessing via audiovisual link is now permanently permitted in some states, such as New South Wales, but has not been adopted in all states, making it essential to confirm the relevant state’s requirements before proceeding.
• This article explains the requirements for witnessing an affidavit for individuals involved in legal proceedings in Australia.
• LegalVision, a commercial law firm specialising in advising clients on litigation and legal document execution, outlines the physical and remote witnessing process for affidavits.

Tips for Businesses

Confirm that your chosen witness is an approved witness under the relevant state’s rules before proceeding. Sign in dark ink to ensure signatures scan clearly. If witnessing remotely, verify that the relevant state permits audiovisual witnessing for affidavits before arranging the process.

Summarise with:

ChatGPT Gemini Perplexity Microsoft Copilot

Open now

---

On this page

• Approved Witness 
• Signatures 
• Process of Witnessing 
• General Considerations 
• Key Takeaways 
• Frequently Asked Questions

An affidavit is a written statement of facts that a person swears or affirms to be true for use in legal proceedings. Courts rely on affidavits as formal evidence, so they must meet strict execution requirements to be valid. This article sets out the key requirements for physically or remotely witnessing an affidavit.

Directors' Duties Complete Guide

If you are a company director, complying with directors’ duties are core to adhering to corporate governance laws.
This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.

Download Now

Approved Witness 

In Australia, an affidavit must be witnessed by an ‘approved witness’. This includes:

• court registrars; 
• lawyers; 
• justices of the peace;
• public notaries; 
• judges; and 
• police officers.  

Generally, there are certain requirements around who can be a witness for legal documents. 

Signatures 

With modern technology, e-signatures are now available in addition to the traditional method of signing with a pen. E-signatures are essentially digital signatures. Examples include: 

• signing on a tablet with a stylus; or 
• capturing a digital version of a physical signature and incorporating it into a document. 

While the usage of e-signatures has increased, there are still certain documents you cannot execute with one. Court documents, including the affidavit, cannot use e-signatures. As such you must still use, a traditional ‘wet’ signature when executing an affidavit. 

Process of Witnessing 

Physical Witnessing 

You must affirm the affidavit in the presence of your witness. This needs to happen before you sign the affidavit. The approved witness will ask you to swear or affirm that your affidavit’s contents are true. The difference between swearing and affirming is that the latter does not refer to God. An individual who believes in a God can choose to swear the affidavit. They may do so by holding the Bible or another relevant holy book to swear an oath. 

Once the affidavit has been sworn or affirmed, you will sign each page of the document. Your approved witness will also sign each page of your affidavit after they have witnessed you signing it. 

Remote Witnessing 

Many state governments have since introduced legal changes to allow for remote witnessing of documents as a result of COVID-19. For example, remote witnessing of documents over an audiovisual link has been permanently legalised in New South Wales since November 2021, whereas this is yet to be the case in South Australia. Therefore, ensure the relevant state laws permit remote witnessing of documents prior to doing so.

General Considerations 

On the very last page of your affidavit, you should include the following details: 

• your full name and signature; 
• whether the affidavit is sworn or affirmed; 
• the day and location of the signing; and 
• the full name and occupation of the authorised witness, and their signature. 

It is important to check through the affidavit for any errors. If you notice errors in your affidavit when signing, you can cancel out the error and make the appropriate changes. Both you and your witness should leave your respective initials near the amendment. 

Lastly, when signing a legal document such as an affidavit, it is advisable to sign in darker ink, such as black or blue ink. This helps to capture the signature more clearly, especially when scanning or copying the document for record purposes. 

Key Takeaways 

Ensuring that your affidavit is witnessed correctly is important, especially if you require it for a legal proceeding. It is therefore crucial to meet requirements regardless of whether it is witnessed in person or remotely. With remote witnessing, it is also wise to double-check the requirements as they are fairly new. 

If you need help with non-disclosure agreements, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced contract lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.

Frequently Asked Questions