What are the Rules Relating to Statutory Declarations in New South Wales?

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What a statutory declaration? When it can be used? Who can witness it? How it is different from an affidavit? And what are the consequences of lying?

During your legal proceedings, you may have heard your lawyer, or the court, talk about a ‘statutory declaration’. Or you may have be asked to make one by an employer, an insurance company, or by a government department or agency.

But what is a statutory declaration? What are the rules relating to making one? And what may be the consequences for making a false one?

Here are the answers to those questions:

What is a statutory declaration?

A statutory declaration is a written statement that you swear, affirm or declare to be true under the force of law.

No one can make a statutory declaration on your behalf., and you must make your statutory declaration in the presence of an ‘authorised witness’.

There are two types of statutory declarations – Commonwealth, and state or territory.

Corporations cannot make statutory declarations.

When might I need a statutory declaration?

Statutory declarations may be used for a wide range of reasons to verify or substantiate information under penalty of law.

They may be required when applying for licences or positions, making or defending claims, for travel purposes, verifying reports – the list goes on.

What is the difference between a statutory declaration and an affidavit?

An affidavit is another type of written statement that you swear, affirm or declare is true.

However, affidavits are generally used as evidence in court. While statutory declarations can also be used as evidence in court, they are generally made for a purpose outside of court.

Who can witness my statutory declaration?

‘Authorised witnesses can witness statutory declarations.

In New South Wales, authorised witnesses must be a:

  1. Notary public,
  2. Justice of the Peace,
  3. Commissioner of the court who is authorised to take affidavits,
  4. Australian lawyer with a practising certificate,
  5. Lawyer from another jurisdiction who is permitted to practice in NSW, or
  6. Person who is authorised to administer an oath.

Can my statutory declaration be witnessed remotely?

In response to the COVID-19 pandemic, the NSW Government introduced legislation allowing statutory declarations to be witnessed remotely. This legislation is now permanent in NSW.

This means that an authorised witness can remotely witness your statutory declaration audio-visual link (video call).

However, the authorised witness must:

  1. Witness you sign the document in real time,
  2. Sign the document, or an exact copy of the document,
  3. Be sure that the document they sign is the same document (or exact copy) that they witnessed, and
  4. Confirm your identity.

How can an authorised witness confirm my identity?

Under section 34 of the Oaths Act 1900, an authorised witness must:

  1. See your face,
  2. Have known you for at least 12 months, or
  3. Have viewed an original/certified copy of your identification .

What happens if I lie in my statutory declaration?

If you lie on your statutory declaration, you may be liable for up to 5 years imprisonment, under section 25 of the Oaths Act 1900.

If you are unsure about the rules relating statutory declarations, including whether you should make one for your specific situation, it may be a good idea to contact a lawyer for case-specific advice.

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