What is a statutory declaration? (Australia)

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?

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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.