Affidavits in Australia – Your Essential Guide

Author: Jasmine Burrows, Progressive Legal

The affidavit plays a crucial role in the legal system, serving as sworn written statement used in Court proceedings and other legal matters. In Australia, affidavits hold significant importance and are relied upon by Judges, Lawyers, and individuals involved in legal disputes.

This article aims to provide a comprehensive guide to understanding affidavits in Australia, including their purpose, requirements, and key considerations. 

Affidavit Questions Answered In This Guide

Click on any of the questions you have below to jump straight to an answer in our affidavit guide:

Introduction to Affidavits

• What is an Affidavit? 

Purpose and Importance of Affidavits

• What is the Purpose of an Affidavit? 
• Should I make an Affidavit? 

Witnessing and Swearing/Affirming Affidavits

• Who can Witness an Affidavit? 
• How do I Witness a Signature? 
• What is the difference between having the document sworn or affirmed? 

Content and Writing of Affidavits

• What should an Affidavit contain? 
• What should not be included in an Affidavit? 
• How should an Affidavit be written? 
• How do I attach Documents to my Affidavit? 

Special Considerations for Affidavits

• Can an Affidavit be Witnessed Remotely? 
• What is the Punishment for Submitting a False Affidavit? 
• How do I file and serve an Affidavit? 
• Can I submit an Affidavit in a Foreign Language? 

Key Takeaways 

What is an Affidavit? 

An affidavit is a written statement of facts sworn or affirmed by a person who has personal knowledge of the matters stated. It serves as a means for individuals to provide their first–hand knowledge or testimony on a matter in a written format.

It is typically used as evidence in legal proceedings and is considered a solemn declaration of the truthfulness of the statements made within it. For an affidavit to be accepted in Court, it must be witnessed by an approved witness. Affidavits are typically used in civil and criminal cases, and various administrative proceedings. 

What is the Purpose of an Affidavit? 

There are several important purposes of an affidavit: 

Providing evidence

Affidavits allow individuals to present their firsthand knowledge, experiences, or observations on a matter in a written format. They can be used to support or clarify claims, provide relevant information, or present a narrative of events. Affidavits can be submitted as evidence in Court hearings, administrative proceedings, or other legal contexts. 

Establishing facts

Affidavits help establish the facts surrounding a particular situation. They can be used to document events, provide details about specific incidents, or confirm the authenticity of certain documents or transactions. Affidavits can be particularly useful when there are no other witnesses or when the person with firsthand knowledge is unable to testify in person. 

Supporting legal arguments

Affidavits can support legal arguments made by the parties involved in a case. They can provide additional information, context, or corroboration for a particular position or claim. Affidavits can be used to present expert opinions, professional expertise, or specialised knowledge relevant to the legal matter. 

Assisting decision-making

Affidavits help Judges, Juries, or administrative officials make informed decisions on reliable evidence. By providing sworn or affirmed statements and supporting evidence, affidavits contribute to the overall body of evidence and can influence the outcome of a case or the resolution of a legal matter. 

Preserving evidence

Affidavits help preserve evidence for future reference. They create a written record of statements and facts at a specific point in time, which can be valuable if there are changes in circumstances, loss of memory, or disputes over what was previously said or agreed upon. 

Should I make an Affidavit? 

If you’re involved in a court case, you may have the option to create an affidavit. The individual that makes an affidavit is called the deponent. The deponent may be a plaintiff or applicant, a defendant or respondent, a witness, or an expert who has knowledge relevant to the case.

However, it’s important to consider the specific circumstances of your case and any Court orders that have been issued before deciding whether an affidavit is necessary.

If you’re unsure whether you should prepare an affidavit or not, it’s always a good idea to seek legal advice. Make an enquiry below to get in touch with our experienced lawyers.

Who can Witness an Affidavit? 

Well, before you put your pen to paper, there’s an important step you need to take. You must have a qualified witness present when you sign the affidavit. Who can be an authorised witness, you ask? Some examples include: 

• Justice of the Peace (JP);  
• Solicitor; 
• Barrister; 
• Judge; 
• Police Officer  
• Court registrar; or 
• Public Notary.  

Generally, a witness must:  

• be over 18 years of age; 
• know the person whose signature they are witnessing; 
• not be under the influence of drugs; 
• be of sound mind and mental capacity; and 
• not be a party to the document or have any financial interest in it. 

How do I Witness a Signature? 

When you’re acting as a witness to someone’s signature, there are a few requirements you need to keep in mind. Here they are: 

First and foremost, make sure that the person signing the document does so right in front of you. It’s not acceptable for them to give you a document that’s already been signed by someone else and ask you to witness it. The signature should happen in your presence. 

When it comes to the ink colour, it’s best to use either blue or black ink. This is because documents scanned for electronic versions tend to come out clearer when the original ink is blue or black. 

Check that the person has signed the document where required on all pages. Make sure they haven’t missed any sections that need their signature. 

If the person makes any changes to the document after signing it, have them initial those changes. This helps indicate that they were aware of and approved those alterations. 

As a witness, you may need to state that you have known the person signing the document for at least a year, or you have taken steps to verify their identity. One common way to verify identity is by viewing their signature on a valid driver’s license, passport, or proof of age card. However, specific requirements may vary depending on the document type and the laws applicable in your state. So, it’s always a good idea to check the specific requirements for the state you’re in. 

Additionally, take note of any additional details you need to provide as a witness. The document itself should outline what information you need to include, such as the date, your occupation, and your address. Make sure to provide these details accurately. 

What is the difference between having the document sworn or affirmed? 

Once you have your qualified witness with you, it’s time to make the affidavit official. You have two options: you can either swear or affirm that the contents of the affidavit are true. When you swear an affidavit, you make a solemn promise to speak the truth while holding a bible or another religious text.

However, if swearing a document goes against your religious beliefs or if you don’t have any religious beliefs, you have the option to make an affirmation. By taking an affirmation, you affirm that the document you have created and are about to sign is truthful, without the need for a religious text. 

What should an Affidavit contain? 

When you’re drafting an affidavit, there are a few key things that you definitely want to make sure are in there. Here’s a breakdown: 

1. You want to provide all the details related to the case where the affidavit will be used. This includes mentioning the names of the parties involved, the location of the court, and the court case number. These details help to ensure that the affidavit is associated with the right case and doesn’t get mixed up with others. 

2. You need to include the essential information about the deponent. It’s important to mention their full name, address, and occupation. This helps to establish the identity and credibility of the deponent, making sure that their testimony is properly documented. 

3. You must also include contact details. You’ll want to provide the contact information for the party for whom the affidavit is being made, or if applicable, the contact details of their lawyer. This allows the court or relevant parties to reach out if they need any further information or clarification. 

4. You need to clearly state the evidence being presented by the deponent. This is the heart of the affidavit and what makes it valuable. The deponent should clearly and truthfully state their side of the story, providing any relevant facts, events, or information that supports their case. 

By including all of these elements, you ensure that the affidavit is comprehensive, relevant, and ready to be considered by the court or tribunal. It’s important to be thorough and accurate when putting together an affidavit to ensure its effectiveness in the legal process. 

What should not be included in an Affidavit? 

When it comes to what you should avoid including in your affidavit, here are some important points to keep in mind. 

Personal Opinion

Firstly, it’s crucial to understand that your affidavit should not contain your personal opinion. Stick to factual information based on your own knowledge and experiences. However, if you happen to be an expert in a specific field, you can include your professional opinion related to that field. 

Avoid Hearsay

Avoid including hearsay evidence in your affidavit. Hearsay evidence refers to information about what someone else told you they heard or saw. For instance, saying, “Betty told me she saw Simon steal from the store.” Hearsay evidence is generally considered less reliable, so it’s best to focus on firsthand knowledge and observations. 

Avoid Hypotheticals

Stay away from hypothetical statements as well. These are statements that discuss what could have happened or what might have occurred under different circumstances. For example, saying, “If Jane had not travelled so much for work, we would not have broken up.” Stick to the actual events and facts rather than speculating on hypothetical scenarios. 

Avoid Generalisations

Avoid making generalisations in your affidavit. Refrain from making sweeping statements about entire groups or categories of people. For instance, saying, “All men are afraid of commitment.” Generalisations can be misleading and may not hold true in every situation. 

Be Respectful

It’s important to maintain a respectful tone and avoid offensive or derogatory statements about anyone involved in the case. Expressing personal attacks or using offensive language can undermine the credibility of your affidavit and may even have legal consequences. 

Avoid Legal Advice

Remember, an affidavit is not the place to include legal advice you have received from your lawyer. Refrain from stating things like, “I have been advised by my lawyer that I am entitled to…” Legal advice should be sought separately, and your affidavit should focus on the facts and your personal knowledge. 

Avoid Legal Interpretations

Steer clear of offering your own interpretation of the law in your affidavit. The role of the Court is to interpret the Law, so leave legal interpretations to the legal professionals. Stick to presenting the facts and evidence relevant to your case. 

Avoid Submissions

It’s crucial to avoid including submissions in your affidavit. Submissions are arguments or statements about what you believe should be the outcome of the case. The court will consider submissions separately, so focus on presenting the facts and evidence rather than making arguments within your affidavit. 

Exercise Caution Regarding Criminal Offense-Related Information

Lastly, do not include any information or documents that suggest or prove you have committed a criminal offense. Such information may be used against you if you face charges related to those offenses. It’s important to be mindful of the potential consequences of sharing such information in your affidavit. 

By avoiding these pitfalls, you can ensure that your affidavit remains relevant, credible, and in line with legal requirements. Our specialized lawyers can you help you in ensuring the credibility of your affidavit. Give us a call on 1800 820 083 or simply make an enquiry below.

How should an Affidavit be written? 

When it comes to writing your own affidavit, there are some important things to keep in mind. Here’s a helpful list of what you should do: 

• First and foremost, make sure you only include information that you personally know about. Stick to the facts and avoid including things you heard from someone else. Your affidavit should reflect your own knowledge and experiences. 
• To make your affidavit well-structured and easy to follow, it’s a good idea to number each paragraph. This helps the reader navigate through your affidavit and locate specific points or statements. 
• When it comes to the order of your affidavit, it’s generally recommended to write it in chronological order, starting from the oldest events or incidents and progressing to the most recent. This creates a clear timeline and makes it easier for the reader to understand the sequence of events. If your affidavit covers different issues or topics, you can use headings to separate and organise them effectively. 
• When writing conversations within your affidavit, it’s best to use the first-person approach.  
• Remember to include only relevant information in your affidavit. Stick to the details and evidence that directly relate to the case or matter at hand. Including unnecessary or unrelated information can make your affidavit confusing or dilute its impact. 
• To keep your affidavit organised and avoid any confusion, it’s crucial to number every page. This ensures that none of the pages get misplaced and helps maintain the integrity of your document. 
• Numbered paragraphs and subheadings relating to particular events or parts are extremely helpful.  
• Affidavits should be typed – double spaced with 12 point font – or clearly handwritten. 

How do I attach Documents to my Affidavit? 

Sometimes, it can be really helpful to include additional documents that support what you’re trying to prove. These documents are called “annexures.” 

When attaching annexures, it’s important to identify each one properly. You can do this by labelling them as Annexure ‘A’, Annexure ‘B’, and so on. This labelling system helps to keep everything organised and ensures that each document is easily referenced. 

In your affidavit, you should also provide a brief description of each annexure. This description helps the reader understand what the document is about and how it relates to your case. It’s important to clearly connect the dots between the content of your affidavit and the supporting documents you’re attaching. 

Remember to number the pages of each annexure consecutively, including any cover pages. This way, everything stays in order, and it’s easy to refer to specific pages if needed. 

Now, what if you have a large number of documents or some that are quite large in size? In that case, you can create an “exhibit.” To prepare an exhibit, you’ll need to include a brief description of each document within the text of your affidavit.

You’ll also need a cover page for the exhibit, which should be signed by an authorised witness. Additionally, it’s a good idea to include an index at the beginning of your exhibit. This index helps the court quickly locate the documents they need to review. 

When attaching any documents to your affidavit or exhibit, make sure they are clear, legible, and easy to read. If the court or other parties can’t make sense of the documents, they may not be considered as evidence. 

If you’re uncertain about what to write in your affidavit or whether you should attach any documents, it’s always a good idea to seek legal advice. 

Can an Affidavit be Witnessed Remotely? 

In Australia, the response to the COVID-19 pandemic led to the introduction of temporary laws allowing the witnessing of documents through audio-visual links. In some states, for example in NSW, these laws have become permanent.  

So, how does this process work? Generally, it involves the parties connecting through a video call, where the signing party positions their camera in a way that allows the other party to witness them signing the document with a handwritten signature. After signing, they scan and send a copy of the signed document to the witness, who then signs their own copy. 

In New South Wales (NSW), the validity of electronically witnessed signatures is determined under Part 2B of the Electronic Transactions Act 2000 (NSW). According to the Act, the witness must: 

1. Observe the person signing the document in real time. 
2. Confirm their observation by signing the document or a copy of it. 
3. Be reasonably satisfied that the document they sign is the same as, or a copy of, the document signed by the person. 

The witness is also required to endorse the document with a statement that specifies the method used for witnessing the signature and that the process adheres to section 14G of the Act. 

What is the Punishment for Submitting a False Affidavit? 

Lying on an affidavit in Australia is a serious matter and has serious legal consequences. Making and affidavit holds the same weight as giving oral evidence in Court. If you are found to have lied or provided false information in an affidavit, you may be subject to penalties for perjury.

Perjury is a criminal offense that involves intentionally providing false statements under oath with the intent to mislead the Court or Tribunal.  

The penalties for perjury can vary depending on the jurisdiction within Australia, but generally, it is considered a serious offense. In some cases, perjury can result in imprisonment for a certain period of time, fines, or both. 

For example, in NSW, lying on an affidavit is an offence under s 29 Oaths Act 1900. You may be liable for a maximum of 10 years in prison. To establish the offence, the prosecution must prove beyond reasonable doubt that: 

• You swore or affirmed the affidavit; 
• The affidavit was affirmed or sworn before an authorised person; 
• The information provided on the affidavit was untrue; and 
• You were aware that the information was false.  

It’s always essential to be truthful and honest when preparing an affidavit or providing testimony in court. If you have any doubts or concerns about the information you are including in an affidavit, it’s advisable to seek legal advice to ensure you understand your obligations and responsibilities. 

How do I file and serve an Affidavit? 

If you are preparing an affidavit, you may be ordered by the court to file and serve the affidavit. It’s not something you have to do in every case. If the court does give you the green light, you have a couple of options for getting it done. 

First off, you can file your affidavit online. Many Courts nowadays have electronic filing systems set up, which makes the process pretty convenient. All you have to do is follow the instructions provided by the court and submit your affidavit through their online portal. 

Alternatively, you can head to the registry where the court is located and file your affidavit in person. This means physically going to the court and submitting the document at the designated location. Again, make sure to check the court’s guidelines and procedures so you know exactly where to go and what to do. 

Now, it’s crucial to keep an eye on the deadline set by the court. You want to make sure your affidavit is filed and served by that date. If you miss the deadline, the court might not accept your affidavit as evidence. So, it’s really important to be prompt and adhere to the timeline set by the court. 

Can I submit an Affidavit in a Foreign Language? 

Given that affidavits are often prepared for the use of courts and tribunals, an interpreter is needed to submit an affidavit written in a foreign language.  

Firstly, the interpreter would swear an oath or make an affirmation, stating that they have accurately translated the specific words required from English into the language of the person giving the affidavit. They would also make sure to translate what the person said in their own language back into English. 

Secondly, the interpreter would provide a written translation in English of the entire affidavit, making sure that it accurately captures the content of what the person originally stated. 

By having this affidavit from a qualified interpreter, the court or tribunal can have confidence that they are accurately considering the information presented, even if it’s not in English. It’s a way to ensure fairness and understanding in the legal process, regardless of language barriers. 

Key Takeaways 

Affidavits play a critical role in the Australian legal system, serving as sworn written statements that hold significant importance in court proceedings and various legal matters. If you are required to submit an affidavit, it is critical that you seek legal advice to ensure that you complete it accurately and in compliance with the relevant laws and regulations.

If you have any further questions, do not hesitate to contact us at Progressive Legal. Simply fill out the form on this page or give us a call on 1800 820 083.