Affidavits, witness statements and statutory declarations in Australia

In Australia, affidavits, witness statements and statutory declarations are all different ways that a person can provide a formal, written and signed statement of the evidence they wish to give in relation to a particular matter. Penalties may apply in each case if false information is included in one of these documents.

The differences between affidavits, witness statements and statutory declarations in Australia relates to their format and the way they are signed. These matters are explained under separate headings below.

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The actual content of each should be written in the same way no matter whether the document is an affidavit, witness statement or statutory declaration.

Affidavits in Australia

Affidavits are used in Australia as as written substitute for a person turning up and giving oral evidence from a witness box in court. The obligation to tell the truth and the whole truth in making an affidavit is the same as when a person is giving evidence in the witness box (ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193).

A person who makes an affidavit may not need to turn up to court to give evidence at all because their affidavit will be “tendered” or “read” by the court instead. This will have the same effect as the person giving that evidence orally. However the person may still be required to attend court for questioning from other parties (known as “cross-examination”).

Just like oral evidence given in court, an affidavit must always be made on oath or affirmation. Oaths and affirmations are alternative ways of “making” an affidavit, and they are of equal effect. An “oath” is a religious promise to tell the truth. An affirmation is a non-religious equivalent.

An affidavit must be signed before a person who is authorised to administer an oath or take an affirmation. Once the oath or affirmation has been completed, both the person making the affidavit and the witness will sign the affidavit. They both usually sign down the bottom of each page except the last page. On the last page they sign in a special signature panel called a “jurat”.

Depending on the jurisdiction there may be additional requirements. For example, in New South Wales there is a requirement that the person making the affidavit provide the witness with appropriate identification in certain circumstances.

Witness statements in Australia

Witness statements are used to give written evidence in some courts in Australia, quite often in criminal matters. A witness statement is signed by the person making the statement. No oath or affirmation is required.

A witness statement may also be signed by some other person who witnesses the maker’s signature. Generally there is no requirement that this person witnessing the signature is qualified in some way, although it will usually be sensible to choose someone who is responsible and who is over 18.

Statutory declarations in Australia

Statutory declarations in Australia are used to give evidence for non-judicial matters. There is a different kind of statutory declaration for each jurisdiction in Australia, with different rules.

It is important to check with the relevant authority that requires the statutory declaration as to which one they will accept. Usually the appropriate statutory declaration will be the one for the jurisdiction for which the relevant matters need to be proved, but this is not always the case. For example, many land transfer matters will require a statutory declaration from the jurisdiction in which the person making the statutory declaration is based, not one from the jurisdiction in which the relevant land is located. So this should always be checked.

All Australian statutory declarations must be signed in front of a witness. Who can witness the declaration depends on the jurisdiction. No oath or affirmation is required. Again, there may be additional requirements such as appropriate identification requirements in New South Wales in certain circumstances.