A Guide to Statutory Declarations

Difference Between Statutory Declaration and Affidavit

Statutory declarations are similar to affidavits in that they serve as written statements of fact.

However, affidavits are generally used as evidence under oath or affirmation in court without always needing to give that evidence in person in the court room witness box. In comparison, while statutory declarations can be utilised in court, affidavits are preferred, with statutory declarations generally made for other purposes. Statutory declarations are usually used for administrative purposes, compared to affidavits which are used as a form of evidence in a court to prove or negate something.

New South Wales

In New South Wales, an authorised witness who a statutory declaration can be signed in the presence of, is usually a:

1. Justice of the Peace,
2. Legal practitioner, or
3. Notary public.

An NSW statutory declaration is made under the Oaths Act 1900 (NSW).

This Act contains 2 alternative document formats that you can use, which are referred to as an ‘eighth schedule form’ or a ‘ninth schedule form’. The main difference is the wording of the form, being:

Eighth Schedule:

“I, [name of declarant], do solemnly and sincerely declare that…….and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act 1900.”

Ninth Schedule:

“I, [name of declarant], of (residence), do hereby solemnly declare and affirm that [the facts to be stated according to the declarant’s knowledge, belief, or information, severally]. And I make this solemn declaration, as to the matter (or matters) aforesaid, according to the law in this behalf made – and subject to the punishment by law provided for any wilfully false statement in any such declaration.”

The form chosen will ultimately have to be suitable for its intended purpose.

When witnessing a statutory declaration, the authorised witness must see the face of the defendant and have known the declarant for at least 12 months or confirm their identity with an approved identification document.

This includes a current and valid driver licence or permit with your photo, NSW photo card, Australian proof of age card or an Australian passport (either current or expired less than two years ago).

For identity documents, it must be your photo, with your name on the document matching your name on the statutory declaration.

In preparing a statutory declaration, you therefore must (i) select the suitable document, (ii) add details or relevant facts you wish to declare, (iii) take your document to an authorised witness, (iv) prove your identity to the witness (if you have known them for less than 12 months) and (v) sign the document in the presence of the authorised witness.

Can a Statutory Declaration Be Witnessed Remotely?

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 changed the previous Regulations to permit documents to be witnessed remotely by way of audio visual link. This occurred on 22 April 2020.

This was then also incorporated into the Electronic Transactions Act 2000, which mean that documents can be electronically witnessed. These documents are non-exhaustive and include power of attorney, wills, deeds, agreements, affidavits and statutory declarations.

You can now witness the signing of a document by audio visual link (i.e. zoom, facetime, or teams meeting) by following the following steps:

1. Observe the person signing the relevant document in real time. You must be able to see the person’s face, his/her singing hand and the document being signed at the same time through the camera.
2. You must be reasonably satisfied that the document being signed is the same document or a copy of the document signed by the signatory.
3. You must then sign the document or a copy of the document as witness. This can be done in one of the following two ways, namely:
   1. You may sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or
   2. The signatory scans and send you a copy of the signed document electronically, and you then countersign the document as soon as practicable after witnessing the signing of the document.
4. You must endorse the document including each copy of the document with a statement that specified the method used to witness the signing and that the document was witnessed in accordance with the Electronic Transactions Act. i.e. “This document was signed (in counterpart) and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000”.

Is Giving a False Statutory Declaration an Offence?

It is important to note that falsely executing a statutory declaration is a criminal offence which carries a maximum penalty of 5 years imprisonment, as per section 25 of the Oaths Act 1900 (NSW).

The prosecution is required to prove, beyond reasonable doubt, that:

1. You intentionally made a statutory declaration,
2. The declaration contained false information, and
3. You were aware that it contained false information.

This is a ‘table 1’ offence which means that it will be dealt with in the Local Court unless the prosecutor or person charged elects for it to be heard in the District Court.

In the Local Court, the maximum penalty is limited to 2 years imprisonment and/or a $5,500 fine.

It is also an offence to apply for persons who falsely pretend to be an ‘authorised witness’ and take and receive a statutory declaration, despite not being by law authorised to so.

A maximum penalty of 12 months imprisonment and/or a $220 fine is applicable.

By Poppy Morandin and Jimmy Singh.

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