Statutory Declarations in Australia

Author: Zeinab Farhat, Progressive Legal

Statutory declarations serve various purposes and can be utilised in different scenarios, including but not limited to: 

1. When there is a legal dispute, but no court proceedings are on foot and a certain fact needs to be proved;  
2. When an individual needs to prove a personal detail, such as a change of name or address; and  
3. When an employee needs to provide evidence for sick leave. 

It is crucial to understand the nature of a statutory declaration and the significance of providing accurate and truthful information if you are required to submit one. This article will cover the following aspects: 

1. What a statutory declaration is;  
2. What the laws governing statutory declarations are;  
3. If a statutory declaration is the same as an affidavit;  
4. Who can witness a statutory declaration; and 
5. Whether a statutory declaration can be witnessed online. 

What is a Statutory Declaration?

A statutory declaration is a signed, written statement in which the declarant (the individual signing) declares the content of it to be true.  

How do you produce a valid statutory declaration?

There are a few things to consider to ensure your statutory declaration is valid. First, your declaration should be written clearly and concisely, using plain language that is easy to understand. It should include the declarant’s full name, address, and occupation. Additionally, a statement that you “do solemnly and sincerely declare” should be included.  

The content of the declaration must be truthful and accurate, stating the facts as they are without exaggeration or misleading information. It’s crucial to date and sign the declaration in the presence of an authorised witness. The statutory declaration form can be found online and must be downloaded as a PDF for signing. By following these guidelines, a statutory declaration can be prepared correctly and have the intended legal effect you are seeking. 

What happens if the contents of the statutory declaration are false?

If you sign a statutory declaration knowing that its contents are in fact false, you expose yourself to the possibility of criminal charges or pecuniary penalties. For example, pursuant to s 25 of the Oaths Act 1900 (NSW):  

“.. any person who wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular, shall be guilty of an indictable offence and liable to imprisonment for 5 years.” 

Indeed, it is unlikely that a person will receive jail time for lying on a statutory declaration (unless it is an exceptional situation). However, considerable fines apply with the maximum penalty for an individual being $5,500.  

What defences do I have available if am found to have lied on a statutory declaration?

The offence under s 25 provides that an individual acted “wilfully” and “corruptly”. As such, the defence of “honest and reasonable mistake” may be open to you in the event that you are accused of lying on your statutory declaration. In order to rely on such a defence, you must prove the following: 

1. That you honestly believed that your statutory declaration was in fact truthful; and  
2. The mistake you made was reasonable in the circumstances.  

However, it is important to note that this defence is not available to you merely on the basis that you were unaware that lying on a statutory declaration was an offence.  

What are the laws governing Statutory Declarations?

The laws regulating statutory declarations differ depending on the jurisdiction in which the statutory declaration was signed. The key pieces of legislation with respect to statutory declarations are: 

1. Oaths Act 1900 (NSW);  
2. Oaths and Affirmations Act 2018 (VIC);  
3. Oaths Act 1867 (QLD);  
4. Oaths Act 1936 (SA);  
5. Statutory Declarations Act 1959 (WA);  
6. Oaths Affidavits and Declarations Act 2010 (NT); and  
7. Statutory Declarations Act 1959 (Cth). 

Therefore, it is important to consult the relevant legislation as each have slightly different requirements.  

Is a Statutory Declaration the same as an affidavit?

A Statutory Declaration is not the same as an affidavit. While affidavits and statutory declarations both relate to written statements of fact, affidavits are used as evidence tendered in court. Furthermore, affidavits tendered in court are bound by the complex rules of evidence. Alternatively, statutory declarations are not bound by such rules. 

Who can witness a statutory declaration?

The following table outlines who can sign a statutory declaration depending on the State or Territory: 

Can a statutory declaration be witnessed online? 

Like many other traditional legal processes which were altered during the pandemic, there has been an evident relaxation in relation to the requirement that documents such as statutory declarations be witnessed in person. It is important to check the requirements of your State or Territory to ensure that you can witness the document online.  

Key Takeaways  

It is very likely that you may have to sign a statutory declaration at some point in your life. As such, it is best practice to be conscious of the requirements attached to a valid statutory declaration, and the fact that this differs across states and territories.  

If you require any advice in relation to contracts, contact our team at Progressive Legal. All you need to do is fill out our online contact form on this page or contact our office at 1800 820 083.  

Statutory Declarations FAQs