What is a statutory declaration?
A statutory declaration is a written statement which the person making it ('the declarant') declares before an authorised witness (who is said to 'take' the declaration) to be true to the best of his or her knowledge and belief, and which is signed by the declarant before an authorised witness - see Affidavits below.
Who may make a statutory declaration?
A statutory declaration is a personal statement, and therefore must be made and signed by a natural person. As such, it cannot be made or signed by a corporation or by any person on behalf of another.
Where a declaration regarding the affairs of a corporation is required, the declarant must be an authorised officer of the corporation who makes the declaration in his or her own right.
Where an attorney needs to make a statutory declaration regarding the affairs of the person from whom he or she received the power of attorney ('the donor'), it must be made in the attorney’s own right and under the attorney’s own name, not in his or her capacity as attorney, though the fact of being the donor’s attorney may be included in the declaration.
Who may take a statutory declaration?
A statutory declaration must be taken by a person holding a position specified by the relevant Act as one which entitles the holder to take a statutory declaration ( i.e. the person must be an 'authorised witness'). In New South Wales, an authorised witness must be a:
- justice of the peace
- notary public
- commissioner of the court for taking affidavits
- legal practitioner, i.e. an Australian lawyer who is granted a practising certificate under:
- Part 3.3 of the Legal Profession Uniform Law (NSW) as applied in a participating jurisdiction; or
- a law of a non-participating jurisdiction entitling the lawyer to engage in legal practice; or
- any person authorised to administer an oath.
The name and capacity of the authorised witness must be stated, and in the case of a justice of the peace the relevant registration number or details of appointment must be provided. The authorised witness’s address is not required.
See sections 21 and 27 Oaths Act 1900.
Identification of the declarant
Where the declaration is made in New South Wales, the authorised witness must:
- see the face of the declarant*, and
- have known the declarant for at least 12 months or sight an original or certified copy of an identification document in respect of the declarant, and
- certify on the declaration that the above requirements have been met.
*An authorised witness may request the declarant to remove so much of any face covering as prevents the authorised witness from seeing the declarant’s face, however the authorised witness is exempted from this requirement if satisfied that the declarant has a special justification for not removing the face covering. The only "special justification" for not removing a face covering is a legitimate medical reason (at September 2018). See s34 Oaths Act 1900 and pt2 Oaths Regulation 2017.
Legislation and penalties
In New South Wales, a statutory declaration is made pursuant to the provisions of the Oaths Act 1900. The Oaths Act provides penalties for making a false declaration, and for taking a declaration without authority (i.e. without being an authorised witness).
Form of a statutory declaration in New South Wales
A statutory declaration made in New South Wales must be, or must in effect be, in the form given in either the Eighth or Ninth Schedule of the Oaths Act 1900. The date and place of the declaration must be stated.
Eighth Schedule declaration
I, [declarant], do solemnly and sincerely declare that [statement of facts]; and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act 1900.
Ninth Schedule declaration
I, [declarant], of [residence], do hereby solemnly declare and affirm that [statement of facts]; 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.
The appropriate wording for a statutory declaration made in New South Wales is incorporated in the approved form of any dealing that requires the making of a statutory declaration, e.g. a caveat.
For a New South Wales statutory declaration see fact sheet What is a statutory declaration (PDF 197.8 KB).
Declaration made outside New South Wales
A declaration made in an Australian State or Territory other than New South Wales must be made pursuant to the equivalent local Act and before a witness prescribed by that Act (see s169 Conveyancing Act 1919). In the case of a dealing including a statutory declaration, reference to the Oaths Act 1900 must be deleted and the local Act substituted:
Declaration made in a foreign country
Where a declaration is made in a foreign country, it must be made:
- pursuant to the equivalent local law or
- in an Australian or British Consulate before a Consular Officer pursuant to the Statutory Declarations Act 1959 (Cth) or
- pursuant to the Imperial Declarations Act 1835 (United Kingdom).
In a dealing containing a statutory declaration, reference to the Oaths Act 1900 must be deleted and reference to the statutory provision pursuant to which the declaration was made must be substituted.
Click on the links below to see information relating to the more commonly used foreign statutory declarations:
An affidavit is a written statement normally given as evidence in court proceedings. It differs from a statutory declaration in that the person making it swears it to be true rather than declares it to be true to the best of his or her knowledge and belief. An affidavit is generally acceptable in lieu of a statutory declaration.