Statutory declarations

Affidavits, witness statements and statutory declarations in Australia

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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.

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.

Who can witness a Commonwealth statutory declaration? (Australia)

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This page explains who can act as a witness for a statutory declaration which is made under the Statutory Declarations Act 1959 (Cth).

The permitted categories of witnesses for Commonwealth statutory declarations in Australia are set out in regulation 4 and schedule 2 of the Statutory Declarations Regulations 1993 (Cth). Some other jurisdictions (for example Western Australia) also permit people on the Commonwealth list of witnesses to witness stat decs for those jurisdictions.

The permitted categories of witnesses for Commonwealth stat decs are:

Lawyers

A person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner, however they are described (for example they may be described as a solicitor, barrister, lawyer or barrister & solicitor) may witness a Commonwealth statutory declaration.

 Licensed or registered people

People who are currently currently licensed or registered under a law of a State or Territory to practise in one of these occupations may witness a Commonwealth statutory declaration:

  • Chiropractor
  • Dentist
  • Legal practitioner
  • Medical practitioner
  • Nurse
  • Optometrist
  • Patent attorney
  • Pharmacist
  • Physiotherapist
  • Psychologist
  • Trade marks attorney
  • Veterinary surgeon

 Other people

The following other people can also witness Commonwealth statutory declarations:

Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public
Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955)
Bailiff
Bank officer with 5 or more continuous years of service
Building society officer with 5 or more years of continuous service
Chief executive officer of a Commonwealth court
Clerk of a court
Commissioner for Affidavits
Commissioner for Declarations
Credit union officer with 5 or more years of continuous service
Employee of the Australian Trade Commission who is:
(a)  in a country or place outside Australia; and
(b)  authorised under paragraph 3 (d) of the Consular Fees Act 1955; and
(c)  exercising his or her function in that place
Employee of the Commonwealth who is:
(a)  in a country or place outside Australia; and
(b)  authorised under paragraph 3 (c) of the Consular Fees Act 1955; and
(c)  exercising his or her function in that place
Fellow of the National Tax Accountants’ Association
Finance company officer with 5 or more years of continuous service
Holder of a statutory office not specified in another item in this Part
Judge of a court
Justice of the Peace
Magistrate
Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961
Master of a court
Member of Chartered Secretaries Australia
Member of Engineers Australia, other than at the grade of student
Member of the Association of Taxation and Management Accountants
Member of the Australian Defence Force who is:
(a)  an officer; or
(b)  a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982 with 5 or more years of continuous service; or
(c)  a warrant officer within the meaning of that Act
Member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or the National Institute of Accountants
Member of:
(a)  the Parliament of the Commonwealth; or
(b)  the Parliament of a State; or
(c)  a Territory legislature; or
(d)  a local government authority of a State or Territory
Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961
Notary public
Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office supplying postal services to the public
Permanent employee of:
(a)  the Commonwealth or a Commonwealth authority; or
(b)  a State or Territory or a State or Territory authority; or
(c)  a local government authority;
with 5 or more years of continuous service who is not specified in another item in this Part
Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made
Police officer
Registrar, or Deputy Registrar, of a court
Senior Executive Service employee of:
(a)  the Commonwealth or a Commonwealth authority; or
(b)  a State or Territory or a State or Territory authority
Sheriff
Sheriff’s officer
Teacher employed on a full-time basis at a school or tertiary education institution
Member of the Australasian Institute of Mining and Metallurgy

 

What is a statutory declaration? (Australia)

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This page explains how to use statutory declarations in Australia. It explains what a statutory declaration is, how you can get the correct form and how to make a declaration. Colloquially you may also hear statutory declarations referred to as “stat decs.” This is just an abbreviation – they are the same thing and the terms are used interchangeably on this website.

What is a statutory declaration?

A statutory declaration is a solemn statement in written form that the person making the statement declares to be true (hence the word “declaration”). The “statutory” part means that the declaration is one made under a law passed by a Parliament (ie a statute). Because of the federal nature of Australia’s political system there are different forms of statutory declarations for each state, and a Federal one as well.  It is necessary to use the right form of statutory declaration for the purpose you are trying to achieve.

What is the difference between an affidavit and a statutory declaration?

In answering this question it is simpler to start with the similarities between affidavits and stat decs. Both are ways in which a person gives a written statement in solemn form. In both cases legal penalties can apply if a false declaration or affidavit is made and the penalties can include a fine or imprisonment. Both affidavits and stat decs must also be signed before a witness who fits into the category of person prescribed by the relevant law to be a witness (typically a justice of the peace or solicitor, but some jurisdictions are less restrictive on their categories of witness).

The essential difference between affidavits and statutory declarations is in the way that the document is signed or attested. A person making an affidavit must either swear or affirm it. This means that the person either swears a religious oath or recites a non-religious affirmation to the witness when they are signing their affidavit. With a statutory declaration, no oath or affirmation is necessary. Instead the person making the statutory declaration will usually simply be asked whether they declare what is written to be true. Once again the exact procedure varies between jurisdictions and more information on this can be found below.

How are statutory declarations used?

The reason that statutory were created was so that affidavits would not need to be made where evidence of a matter was required but the matter was not one where there was a court case or some form of judicial inquiry pending.

Statutory declarations have a long history in Australian law. They were introduced into New South Wales by the Act 9 Vict. No. 9, passed in 1845. No other country in the world uses stat decs for as many purposes as Australian jurisdictions do (although stat decs do exist in the legal systems of Canada, England and New Zealand).

Today, there are literally hundreds of uses for statutory declarations in Australia. Some examples are:

  • to request that the name of a spouse or de facto partner be added to yours on the title of a house or property that you own
  • to declare that you do not have a criminal record in your country of origin when registering as an overseas locum health professional in Australia
  • to state that you are the new owner of a pet where you don’t know or can’t get the signature of the previous owner on a transfer form
  • to say that you were not the driver of a vehicle when a toll was incurred

There are many other examples. The High Court of Australia explains more about the history and background of statutory declarations in Australia in Grech v Bird [1936] HCA 59; (1936) 56 CLR 228.

Where can I get a statutory declaration and which form should I use?

In many cases, a statutory declaration form for the purpose you require can be downloaded from the website for the government entity which requires the stat dec. However if this is not the case you will need to find the correct form, since the use of a statutory declaration from the wrong jurisdiction will usually be invalid and may not be accepted as evidence.

To get the right form you need first to ask whether the statutory declaration is required for the purpose of a state or federal (Commonwealth) law and, if a state law, which state. Then you should use the form of stat dec for that state or for the Commonwealth, whichever applies. The Northern Territory also has its own stat decs so the same applies there. The ACT does not have a statutory declaration and instead uses the Commonwealth’s.

The general rule is that you should use a Commonwealth statutory declaration where the declaration is required:

(a)  for the purposes of, or in connection with any matter arising under, a law of the Commonwealth or of a Territory (other than the Northern Territory) unless that law says otherwise; or

(b)   in connection with the administration of any Department of State of the Commonwealth.

In all other cases use the state form (or the Northern Territory form if in the NT).

If the stat dec is not required by a government body or law of a state or the Commonwealth, then you should ask the person to whom you are providing it which form of statutory declaration they require. It will usually either be the form for the state you are in (or to which the matter relates). If the stat dec is required by a government body or someone acting under the authority of a law of some kind then you should ask them which form of stat dec they require if you are unclear.