Statutory Declaration

What is a Statutory Declaration?

A statutory declaration is a written statement in which a person formally declares that the information contained in the document is true.

NSW statutory declarations are made under the Oaths Act 1900 (NSW) and must be completed and witnessed in accordance with the applicable requirements.

Statutory declarations are commonly used where a person or organisation requires formal confirmation of facts or circumstances but an affidavit is not required.

NSW Statutory Declaration Forms

There are two forms of statutory declaration prescribed for use in New South Wales: the Eighth Schedule form and the Ninth Schedule form.

Either form may be appropriate depending upon the circumstances and requirements of the organisation requesting the declaration.

Before completing a statutory declaration, check whether the organisation receiving the document requires a particular form or wording. See the current Service NSW statutory declaration forms and guidance.

Who Can Witness a NSW Statutory Declaration?

A NSW statutory declaration must be made before an authorised witness.

Authorised witnesses can include:

• a Justice of the Peace (JP);
• a public notary;
• an Australian legal practitioner authorised under the Oaths Act;
• a commissioner of the court for taking affidavits; and
• other persons authorised by law to take and receive statutory declarations.

The appropriate witness can depend upon the particular document and the purpose for which it will be used.

Proving Your Identity

An authorised witness must establish the identity of the person making the statutory declaration.

If the authorised witness has known the person for at least 12 months, the witness may rely upon that knowledge.

If the witness has not known the person for at least 12 months, the witness must confirm the person’s identity using an approved identification document.

Depending upon the circumstances, acceptable identification can include documents such as:

• a current Australian driver licence or permit containing a photograph;
• a NSW Photo Card;
• an Australian proof of age card containing a photograph;
• a current Australian passport;
• an Australian passport that expired less than two years ago; or
• certain foreign passports or other prescribed identification documents.

The identification requirements are prescribed by NSW legislation and the particular document should be checked before attending upon the witness.

The Witness Must See the Declarant’s Face

An authorised witness must generally see the face of the person making the statutory declaration.

An exception can apply where the person is wearing a face covering and the witness is satisfied that there is a special justification for the covering not being removed.

A special justification can include a legitimate medical reason.

Signing the Statutory Declaration

The statutory declaration should not be signed before the witnessing process takes place.

The person making the declaration signs it in the presence of the authorised witness, either through an applicable in-person process or, where permitted, using the NSW remote witnessing procedure.

The authorised witness then completes and signs the required witnessing certificate.

What Does the Authorised Witness Certify?

The authorised witness must certify compliance with the applicable identification requirements.

The certificate records matters including:

• whether the witness saw the face of the person making the declaration, or whether an applicable face-covering exception applied;
• whether the witness had known the person for at least 12 months; or
• if the person was not known to the witness for at least 12 months, the identification document used to confirm the person’s identity.

The witness should complete the certificate carefully and identify the type of identification document relied upon where required.

Can a NSW Statutory Declaration Be Witnessed Remotely?

NSW law allows certain documents, including statutory declarations, to be witnessed remotely using real-time audio-visual communication where the applicable requirements are satisfied.

The witness must observe the person signing in real time and must be reasonably satisfied that the document subsequently signed by the witness is the same document, or a copy of the document, signed by the declarant.

The witness must also endorse the document in accordance with the requirements applying to remote witnessing.

Remote witnessing does not mean that every document can automatically be electronically signed. The requirements for the particular document and form of signature should be checked.

Remote Witnessing is Different From Certifying a Copy

Remote witnessing should not be confused with certifying a photocopy or electronic copy of an original document.

The NSW remote witnessing provisions do not permit a person to certify a document as a true copy of an original through an audio-visual link. Certification of a true copy must be undertaken in person by an authorised person.

NSW and Commonwealth Statutory Declarations Are Different

A NSW statutory declaration should not be confused with a Commonwealth statutory declaration.

Different legislation, forms, witnessing requirements and procedures can apply to Commonwealth statutory declarations.

If a government department, court, business or other organisation has requested a statutory declaration, confirm whether it requires a NSW or Commonwealth declaration before completing the document.

False Statements in a Statutory Declaration

A statutory declaration is a formal legal document. A person should only declare matters that they honestly believe to be true.

Knowingly making a false statement in a statutory declaration can result in serious legal consequences.

Documents Intended for Use Overseas

Documents intended for use outside Australia may have different witnessing, certification, notarisation or authentication requirements.

A NSW Justice of the Peace is not necessarily authorised to perform the functions required for a document that will be used overseas.

A public notary may be required where Australian documents are intended for use in another country.

Learn more about our Notary Public services.

Statutory Declaration and Document Advice

Russell Kelly & Associates can assist with statutory declarations and other legal documents and can advise where a document has particular witnessing or execution requirements.

Contact Our Office

This information is general in nature. The requirements applying to a statutory declaration can depend upon the legislation, form, receiving organisation and purpose of the document. You should confirm the requirements applying to your particular document before signing it.