In brief - Don't underestimate the importance of the humble stat dec
The statutory declaration may seem like one of the most mundane and prosaic elements of our legal system, but it's important to make sure that it is accurate, that it follows the prescribed format and that you observe formality and attention to detail when making a statutory declaration.
It needs to be the truth
This may seem blindingly obvious, but when you swear a statutory declaration, you are declaring in front of an authorised witness that what you are saying is true. This should not be taken lightly.
Famously, former judge Marcus Einfeld recently served two years in prison for knowingly making a false statement under oath and for attempting to pervert the course of justice. The case stemmed from the improbable catalyst of a false statutory declaration over a $77 speeding fine.
While this is an extreme case, hundreds of Australian drivers continue to make sworn statements falsely blaming the dead, strangers or relatives for traffic offences. State governments around Australia have increased the penalties for false statutory declarations, so you run the risk of incurring a large fine or even a jail term if you lie.
Unlike affidavits, statutory declarations are not usually used in court but are required in numerous business and legal transactions.
Statutory declarations used for a variety of purposes
You could be required to prepare and swear a statutory declaration in relation to your statutory obligations to the taxation department or to apply for a business loan with the bank, so it is important to know the requirements.
A Commonwealth statutory declaration should be used in any matter under a law of the Commonwealth or the ACT. This includes statutory declarations sworn in relation to your tax obligations or import and export duties.
However, usually a statutory declaration will be sworn in connection with a particular state law. This includes applications for business loans with the bank and dealings with the local office of state revenue.
Who can make a statutory declaration?
Statutory declarations can be made by any natural person including minors or retirees. However, it is important to check with the relevant organisation for any additional requirements.
A company, business or other organisation cannot make a statutory declaration. This means that someone with the relevant knowledge and authority is required to make the declaration on its behalf.
You need to comply with the form prescribed in your jurisdiction
Each jurisdiction has its prescribed form for a statutory declaration. Usually you can obtain a copy of the relevant form to complete from the organisation that requires the statutory declaration. Generally you can also obtain a copy of the form to be completed from the website of the relevant government authority.
You can also prepare your own statutory declaration. However, if you do this you need to ensure that it complies with regulations in the relevant jurisdiction.
You can find forms and other information at the websites of the Commonwealth Attorney-General and the Department of Justice in each state. (Please see below for website links.)
What should the statutory declaration contain?
The body of the statutory declaration should clearly set out the required information, preferably in a series of numbered paragraphs.
If you are making the declaration on behalf of a company or business, you should set out your role which authorises you to make the declaration on its behalf.
Any attachments included with the statutory declaration must be accurately described in the body of the declaration. For example, use the words: "Attached to this statutory declaration and marked 'A' is a copy of…" followed by a description of the attachment. The attachment should be marked "A" at the top of the first page.
Who can witness a statutory declaration?
Only certain people may witness a statutory declaration. This can be a notary public for Commonwealth statutory declarations or a justice of the peace for state statutory declarations.
A number of other people are also authorised to witness a statutory declaration. This will depend on your jurisdiction but can include lawyers, dentists, medical practitioners, pharmacists, psychologists and police officers.
What does the witness need to do?
The witness should check the identity of the person making the declaration by asking if he or she is the person whose name appears on it, check that the person is competent to make the declaration and remind the person that he or she will be claiming that the statements in the declaration are true and that there are penalties for making false statements.
In some instances you will be required to provide proof of identity when making a statutory declaration. This may include a driver's license or passport. For instance, in NSW new requirements have been introduced from 30 April 2012, requiring the person making the statutory declaration to show their face (or have justification for not doing so) and to provide identification documents to the witness. (For more information about the new requirements in NSW, please see our earlier article New laws for witnessing affidavits, statutory declarations and affirmations.)
Any amendment needs to be made before the statutory declaration is witnessed. Both the person making the statutory declaration and the witness need to initial each amendment.
Above all, don't lose sight of the fact that to avoid the risk of criminal charges, you need to make sure that your statutory declaration is truthful and correct.
You can find the relevant forms and other information on the following websites:
Commonwealth/ACT - Attorney-General's Department
New South Wales - Lawlink
Northern Territory - Department of Justice
Queensland - Department of Justice and Attorney-General
South Australia - Attorney-General's Department
Tasmania - Department of Justice
Victoria - Department of Justice
Western Australia - Department of the Attorney General
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.