Summary
- A statutory declaration is a written statement declared true and correct by the declarant in the presence of an authorised witness, with witness requirements varying significantly between Australian states, territories, and Commonwealth laws.
- Witness requirements range from highly specific professional lists (such as in New South Wales, Queensland, and Victoria) to more relaxed requirements (such as the Northern Territory, where any person aged 18 or older may witness), and most jurisdictions now permit witnessing via audio-visual link.
- Making a false statutory declaration carries serious penalties including substantial fines, imprisonment of up to four years in some jurisdictions, a criminal record, and potential loss of professional licences.
- This article is a guide to statutory declaration witness requirements for individuals and businesses in Australia, explaining the rules across all states and territories to ensure declarations are valid and enforceable.
- LegalVision is a commercial law firm that specialises in advising clients on commercial contracts and legal documentation requirements.
Tips for Businesses
Check the specific witness requirements for the relevant state or territory before arranging for a statutory declaration to be signed, as using an unauthorised witness will render the declaration invalid. Ensure witnesses are currently practising in their qualifying role, as retired professionals cannot witness in that capacity. Keep a copy of all completed statutory declarations for your records.
On this page
- What is a Statutory Declaration?
- When Do You Need a Statutory Declaration?
- Laws Regulating Statutory Declarations
- Difference Between a Statutory Declaration and an Affidavit
- Who Can Witness a Statutory Declaration?
- Who Cannot Witness a Statutory Declaration?
- Can a Statutory Declaration Be Witnessed Online?
- Penalties for False Declarations
- Tips for Making a Statutory Declaration
- Key Takeaways
- Frequently Asked Questions
A statutory declaration is only valid if it is signed and witnessed correctly, and the requirements vary depending on where in Australia you make it. Getting these details wrong can render your declaration invalid and unenforceable. This article will outline the statutory declaration witness requirements in Australia’s various states and territories so you can ensure your statutory declarations are valid and enforceable.
What is a Statutory Declaration?
A statutory declaration is a written statement that an individual (the declarant) signs and declares to be true and correct in the presence of someone else (the authorised witness). Therefore, by signing a statutory declaration as a declarant, you agree that all of the information in the statement is true. Additionally, given the document’s importance, there are penalties for lying on a statutory declaration.
When Do You Need a Statutory Declaration?
Statutory declarations play a crucial role in many legal and administrative processes. They serve as a formal way to declare something true for official purposes, carrying the weight of sworn testimony. The gravity of these documents is underscored by the legal consequences of making false declarations.
A wide range of circumstances may require statutory declarations. These include:
- verifying insurance claims;
- confirming personal details or a change of name;
- verifying employment details;
- supporting immigration applications;
- declaring conflicts of interest;
- certifying the authenticity of documents;
- affirming financial or health matters; or
- in certain circumstances, an employee’s evidence for sick leave.
Given their significance, it is crucial to understand who can witness these documents and how to complete them correctly.
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Laws Regulating Statutory Declarations
Depending on the purpose of your statement and the matter it relates to, you will make the declaration under different state, territory or Commonwealth laws. As a result, it may have slightly different requirements.
Difference Between a Statutory Declaration and an Affidavit
While statutory declarations and affidavits are both written statements of fact or truth, the difference is that you use an affidavit as evidence in court. Therefore, if you require an affidavit, you should contact the court or the individual requesting it.
Who Can Witness a Statutory Declaration?
The witness requirements will change depending on the statutory declaration you are signing. So, let us explore the different requirements of each state and territory.
Commonwealth and Australian Capital Territory
Anyone can make a Commonwealth statutory declaration, including minors and retirees.
Under Commonwealth laws, an extensive list of individuals can witness the declaration, including:
- an Australian diplomatic officer;
- a bank officer with more than five years of experience;
- a chief executive of a Federal Court;
- an architect;
- a chiropractor;
- a lawyer;
- a nurse; and
- a Judge or Magistrate of a court.
New South Wales
New South Wales requires an authorised witness to be a justice of the peace, notary public or a lawyer if you are making the declaration within the state. Outside of New South Wales, you can make the declaration before a notary public or any individual having authority to administer an oath in the country or state where you are creating the statutory declaration.
Additional New South Wales requirements include that, in order for someone to be your witness, you must:
- have known them for more than 12 months; or
- be able to provide documents to them confirming your identity.
If you are providing documentation to the authorised witness, this must be an approved identification document, such as a:
- driver’s licence or permit with your photo;
- photo card;
- Australian proof of age card;
- Australian passport; or
- passport issued by a country other than Australia.
You may provide an Australian passport that has passed the expiration date by less than two years. However, if doing so, you should ensure that the passport has not been marked or cut in any way to make it invalid.
Queensland and Victoria
Queensland and Victoria have a specified list of persons who can witness statutory declarations. For example, the most common individuals include:
- a Justice of the Peace;
- police officer;
- court registrar;
- Judge or Magistrate;
- legal practitioner;
- bank manager;
- medical practitioner;
- optometrist; and
- dentist.
South Australia and Western Australia
South Australia also has a substantial list of authorised witnesses, which you can access on the South Australia Attorney-General’s Department website. Western Australia has a similar list of authorised witnesses to South Australia. This information is available on the Western Australian Government website.
To illustrate, witnesses include:
- government employees;
- lawyers;
- registered health practitioners;
- engineers; and
- accountants.
Northern Territory
The Northern Territory has some of the most relaxed requirements for witnessing a statutory declaration. Specifically, anyone who is 18 years or older may witness a statutory declaration.
Who Cannot Witness a Statutory Declaration?
The law prevents certain people from witnessing a statutory declaration. For instance, you cannot witness your own statutory declaration. Furthermore, the authorised witness must still be working in their field to sign the document based on their professional status.
For example, a retired doctor cannot witness your statutory declaration in their capacity as a medical practitioner. However, if a retired doctor holds another qualifying position, such as being a Justice of the Pease, they can witness the declaration in that capacity. The key is that the witness must be currently authorised in the role they’re using to witness the document.
Can a Statutory Declaration Be Witnessed Online?
Traditionally, witnessing documents online was not possible. However, this requirement has been relaxed due to COVID-19 restrictions and social distancing. Most states and territories now allow witnessing to be completed via an audio-visual link such as Zoom or Skype.
Penalties for False Declarations
The consequences of making a false statutory declaration are severe and can include:
- fines of up to several thousand dollars;
- imprisonment for up to 4 years in some jurisdictions;
- a criminal record that can affect future employment and travel; and
- loss of professional licences or accreditations.
These penalties reflect the serious nature of statutory declarations and the importance of their integrity in legal and administrative processes.
Tips for Making a Statutory Declaration
When making a statutory declaration:
- read the document carefully before signing;
- ensure all information is accurate and complete;
- only sign in the presence of an authorised witness;
- bring appropriate identification if required;
- do not sign a blank or partially completed form; and
- keep a copy for your records.
Following these steps helps ensure your statutory declaration is valid and legally binding.
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Key Takeaways
In summary, your business may encounter statutory declarations in many ways. This includes during commercial agreements to run your business or when dealing with employees. Therefore, knowing the witness requirements for statutory declarations may ensure you have a valid declaration. In addition, each state and territory has criteria for acceptable witnesses, which you can locate on their respective websites.
If you need help with a statutory declaration, LegalVision provides ongoing legal support for all 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
Making a false statutory declaration is a crime and, as such, carries criminal penalties.
If your witness is not on the approved list for the specific state, your statutory declaration will not be valid.
Yes, most states and territories now permit witnessing via audio-visual links such as Zoom or Skype. This requirement was relaxed following COVID-19 restrictions and social distancing measures.
Acceptable identification includes a photo driver’s licence, photo card, Australian proof of age card, Australian passport, or a foreign passport. An expired Australian passport may be accepted if expired less than two years ago and remains unmarked.
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