How Can I Make a Statutory Declaration in New South Wales?

A statutory declaration is a legal document containing a written statement that is sworn, or affirmed and declared, before an authorised person such as a Justice of the Peace, legal practitioner or notary public and backed by the force of law.

Why might I need a statutory declaration?

Statutory declarations may be necessary to put forth or verify information in a range of contexts, including for legal, financial, employment, education and health matters.

In a criminal law context, a statutory declaration may be required to prove that a particular person was driving a vehicle on a particular date, or to establish any other factual matter that does not form part of court proceedings; which is where affidavits are used.

What is contained in a statutory declaration?

A New South Wales statutory declaration is made under the Oaths Act 1900.

A declaration should include you full name, address and occupation and then a list of facts that you declare to be true. Documents can be attached to the declaration as annexures.

The Act provides two formats in which statutory declaration can be made.

Under Schedule 8 of the Act, the appropriate declaration is:

I, [name here], 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 .

Under Schedule 9 of the Act, the appropriate declaration is:

I, [name here], of [address here], do hereby solemnly declare and affirm that [the facts to be stated according to the declarant’s knowledge, belief, or information, severally [#93]. 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.

Who do I need to witness a statutory declaration?

To make a statutory declaration in NSW, you must sign the declaration in the presence of an authorised witness. Authorised witnesses include a:

• Justice of the Peace, or
• legal practitioner, or
• notary public.

If the authorised witness has not known you for at least 12 months, they will need to confirm your identity with an approved identification document.

Examples of an approved identification documents include a current and valid:

• driver licence or permit
• NSW photo card
• Australian proof of age card, with your photo
• Australian passport, either current or expired less than two years ago
• passport or similar document with your photo and signature, issued by a country other than Australia or by the United Nations (with an English language interpretation if not in English).

How can I access a statutory declaration form?

Statutory declaration forms can be accessed via the Service NSW website.

What offences apply to breaking the rules relating to statutory declarations?

Under section 21A of the Oaths Act 1900, it is an offence for a person to take and receive a statutory declarations without being an authorised witness.

This offence carries a maximum penalty of 12 months imprisonment or 2 penalty units.

One New South Wales penalty unit is currently $110.

Further offences apply to a person making a false declaration under the Oaths Act

Section 25 of the Act makes it an offence for a person to wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular.

This offence carries a maximum penalty of 5 years imprisonment.

 Section 25A of the Act prescribes a maximum penalty of 7 years in prison where such a false declaration is made for material benefit. 

Legal defences

In addition to having to prove each component of an Oaths Act offence, including knowledge requirements such as ‘wilfulness’, beyond a reasonable doubt, the prosecution must also disprove to the same high standard any legal defences that may be raised by the evidence.

If the prosecution is unable to do this, a defendant must be found not guilty.

One of the available defences to Oaths Act offences the legal defence of duress, which is where a person person engages in conduct due to a threat of  serious, imminent, ongoing and unavoidable harm to him or herself, or to someone close to them, and his or her actions were justified in the circumstances.

Going to court for a criminal matter?

If you are going to court over a criminal case, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will advise you of your options and the best way forward, and fight for the optimal outcome.