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It is essential to ensure your documents are signed correctly. If a document is not signed or witnessed as required, it may be invalid or unenforceable. Indeed, this is especially important for statutory declarations as the document’s form is about declaring or proving certain information or details. Accordingly, this article will outline the statutory declaration witness requirements in Australia’s various States and Territories. Thus, you can ensure that 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 included 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?

A wide range of circumstances require statutory declarations. These include:

  • verifying insurance claims;
  • confirming personal details or a change of name; 
  • financial or health matters; or 
  • an employee’s evidence for sick leave.

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.

The relevant laws are:

  • Commonwealth and Australian Capital Territory: Statutory Declarations Act 1959
  • New South Wales: Oaths Act 1900
  • Victoria: Oaths and Affirmations Act 2018
  • Queensland: Oaths Act 1867
  • South Australia: Oaths Act 1936
  • Western Australia: Statutory Declarations Act 1959
  • Northern Territory: Oaths Affidavits and Declarations Act 2010

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.

The Attorney-General’s Department provides a complete list of witness options. Furthermore, you can also have documents witnessed overseas through your nearest Australian Embassy or High Commission. 

New South Wales

New South Wales requires an authorised witness to be a justice of the peace 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. 

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 statutory declaration. Furthermore, the authorised witness must still be working in their field to sign the document. Thus, a retired individual often cannot be your witness. 

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. 

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Key Takeaway

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, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What is the penalty for lying on a statutory declaration?

Making a false statutory declaration is a crime and, as such, carries criminal penalties.

What happens if your witness does not meet the requirements?

If your witness is not on the approved list for the specific state, your statutory declaration will not be valid.  

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