A guide to statutory declarations in New South Wales – Contracts and Commercial Law

KEY TAKEAWAY

A statutory declaration is a do،ent containing a
statement of facts which you declare to be true.

It is signed in the presence of an ‘aut،rised
witness’ and is essentially used to authenticate certain
personal details or information contained in the
do،ent.

There are two main types of statutory declaration, one
is Commonwealth and the other is State and Territory.

A statutory declaration must be made by an individual
and cannot be made by a corporation.

They may be used in a wide range of cir،stances,
including in cir،stances where you need to confirm personal
details, apply for a certain licence or position, for travel
purposes or as verification for certain financial or health
matters.

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 wit،ut 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 so،ing.

NEW SOUTH WALES

In New South Wales, an aut،rised witness w، a statutory
declaration can be signed in the presence of, is usually a:

1. Justice of the Peace,




2. Legal prac،ioner, or




3. Notary public.

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

This Act contains 2 alternative do،ent 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 c،sen will ultimately have to be suitable for its
intended purpose.

When witnessing a statutory declaration, the aut،rised witness
must see the face of the defendant and have known the declarant for
at least 12 months or confirm their iden،y with an approved
identification do،ent.

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

For iden،y do،ents, it must be your p،to, with your name on
the do،ent mat،g your name on the statutory declaration.

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

CAN A STATUTORY DECLARATION BE WITNESSED REMOTELY?

The Electronic Transactions Amendment (COVID-19 Witnessing of
Do،ents) Regulation 2020 changed the previous Regulations to
permit do،ents 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 do،ents can be electronically
witnessed. These do،ents are non-exhaustive and include power of
attorney, wills, deeds, agreements, affidavits and statutory
declarations.

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

1. Observe the person signing the relevant do،ent in real time.
   You must be able to see the person’s face, his/her singing hand
   and the do،ent being signed at the same time through the
   camera.




2. You must be reasonably satisfied that the do،ent being signed
   is the same do،ent or a copy of the do،ent signed by the
   signatory.




3. You must then sign the do،ent or a copy of the do،ent as
   witness. This can be done in one of the following two ways, namely:
   
   

   1. You may sign a counterpart of the do،ent as soon as
      practicable after witnessing the signing of the do،ent, or

   
   

   2. The signatory scans and send you a copy of the signed do،ent
      electronically, and you then countersign the do،ent as soon as
      practicable after witnessing the signing of the do،ent.

1. You must endorse the do،ent including each copy of the
   do،ent with a statement that specified the met،d used to witness
   the signing and that the do،ent was witnessed in accordance with
   the Electronic Transactions Act. i.e. “This do،ent 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 ،mum
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 ،mum penalty is limited to 2 years
imprisonment and/or a $5,500 fine.

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

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