9. Statutory Declarations

9.1 What is a statutory declaration?

A statutory declaration is a legally recognised written statement made by a person (the declarant) who promises, before an authorised witness, that its contents are truthful. It includes an acknowledgement that the declarant knows it is an offence to make a statement they know to be untrue.

It is a criminal offence to make a false statutory declaration. The declarant must treat the making of a statutory declaration seriously.

Statutory declarations have a variety of uses, for example, they may be required by banks, trustee organisations, educational institutions, employers, clubs, and other organisations. A statutory declaration may be used to verify insurance claims, proof of age, applications for sick leave or various types of benefits and for many other day-to-day business and personal matters. Any person, whether adult or child, can make a statutory declaration.

In some cases, the law requires information to be supplied in the form of a statutory declaration, but some people may wish to make a statutory declaration even when it is not legally necessary.

9.2 Who can witness a statutory declaration?

JPs are authorised to witness statutory declarations along with a wide variety of other people.³¹ A full list of authorised statutory declaration witnesses can be found in the Authorised Witnesses section of this Handbook.

9.3 Prescribed form of statutory declaration

A statutory declaration must be in the prescribed form.³² This means the relevant legislation requires specified information to be provided.

Before 1 March 2019, the form for a statutory declaration was prescribed under the Evidence (Miscellaneous Provisions) Act 1958. After that date all statutory declarations must be in the form prescribed under the new regulations.³³

The declarant may prepare a statutory declaration themselves, provided it is in the prescribed form.

A statutory declaration is not invalid merely because a person makes a small insignificant mistake that does not materially affect the nature of the declaration.³⁴

An endorsed statutory declaration template is linked in the Templates section of this Handbook. It can be downloaded from the Justice department website.

9.4 How to witness a statutory declaration

The person making the statutory declaration and the person witnessing the statutory declaration must be together and in front of one another.

Each person must:

sign or initial any alteration to the statutory declaration
sign or initial each page of the statutory declaration
if the statutory declaration refers to a document, sign a certificate attached to the document identifying the document as an exhibit to the statutory declaration
sign and date the statutory declaration
legibly write, type or stamp that person’s name and address on the statutory declaration.

The declarant makes an oral declaration in front of you by saying the following words in your presence:

“I, [full name of person making declaration] of [address], declare that the contents of this statutory declaration are true and correct.”

The declarant must say the prescribed words aloud, unless they are living with a disability that prevents them from doing so. They may repeat the words after you or read them from a card.

It is not enough to simply answer “yes” to questions such as “are the statements made in this statutory declaration true and correct?”.

You must write or stamp, under the declarant’s signature, your qualification as a statutory declaration witness. Your address may be a personal address or a professional address, including the address of the HJSS.³⁵

Refer to the example set out below:

Example

A Bible or holy book is not used when making a statutory declaration.

If the document has been pre-signed, you can cross out the signature and ask the declarant to re-sign the document in your presence or prepare a fresh statutory declaration (if this is convenient to the declarant).

You, and the person making the statutory declaration, need to initial cross-outs.

9.5 Certification of Exhibits

There is no limit to the number of exhibits that can be attached to a statutory declaration.

The placement and form of certification for an exhibit to a statutory declaration is not prescribed in regulations.

Please refer to the sample Certificate for use with statutory declarations in the Templates section of the handbook. You could use the following words:

This is the exhibit marked [e.g., ABC-01] now produced and shown to me, [name of person making statutory declaration], at the time of making my declaration on [date].

Signed: [signature of person making statutory declaration]

Witnessed by: [signature of statutory declaration witness]

9.6 Assisting a person to make a statutory declaration

As impartiality is an important part of your role, it is not recommended that you both witness and contribute content for the same person. If you wish to help someone complete a document, you should not then witness that document and you should refer the person to another JP.

However, you can help a person who needs assistance to make a statutory declaration which does not involve contributing substantive content. For example, translation or assistance with reading or writing. Either you or an additional person who provided assistance must legibly write or stamp on the front page of the statutory declaration:

the name and address of the assistant, and
the nature of the assistance provided.

If the assistance is given by a person who, in their professional capacity, prepares or writes statutory declarations on the client’s instructions, they do not need to comply with this requirement. Examples include an Australian legal practitioner, a licensed conveyancer or a person assisting someone to prepare a Victim Impact Statement.³⁶

You will find information about the use of interpreters for statutory declarations in languages other than English in the Cultural and Linguistic Diversity section of this Handbook.

9.7 Reasonable modifications for persons living with disability

If the person making the statutory declaration is living with a disability that makes it difficult for them to follow the usual process, you may make reasonable modifications to the usual process to help the person to make the statutory declaration. See the examples of reasonable modifications below:

Example 1	A person who has a hearing impairment may read and sign the oral declaration instead of saying it aloud
Example 2	A person who is unable to speak may be able to listen to the statutory declaration being read and nod assent
Example 3	A person who is unable to sign their name with their usual signature, can make a distinguishing mark, such as an ‘X’.

The form of certification you must use if you read a statutory declaration to a person is as follows:³⁷

I confirm that reasonable modifications were used in preparing this statutory declaration and that the contents of this statutory declaration were read to the person making the statutory declaration in a way that was appropriate to the person’s circumstances.

[signature of authorised statutory declaration witness]

9.8 No fee for witnessing a statutory declaration

Although the law does not prohibit other authorised witnesses from charging a fee or seeking a charitable donation to witness a statutory declaration, JPs are not permitted to charge a fee.³⁸

9.9 Who can witness a statutory declaration for use in Victoria?

A statutory declaration for use in Victoria can be witnessed by:

any person authorised to witness statutory declarations in Victoria
certain consular and Australian Trade and Investment Commission officials
a person who is authorised to administer an oath or affirmation in that place.

9.10 Offences in relation to statutory declarations

It is an offence to make a statement in a statutory declaration that the person knows to be untrue. The penalty is a fine of up to 600 penalty units or imprisonment of up to 5 years or both. It is also an offence to make a false or misleading statement as to the making of a statutory declaration. The penalty for this offence is 10 penalty units. Please refer to the full Schedule of Offences in Section 24.4.

9.11 Commonwealth statutory declarations

Commonwealth statutory declarations are made under the Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018. The template for a Commonwealth statutory declaration can be downloaded from the federal Attorney-General’s website.

Victorian honorary justices are authorised to witness Commonwealth statutory declarations. You should follow the same procedure when witnessing state or Commonwealth statutory declarations.

9.12 Common questions regarding statutory declarations

9.12.1 How do I determine if someone would benefit from reasonable modifications when making a statutory declaration?

You will need to exercise your ordinary judgement. You are not expected to be a psychologist, psychiatrist, or a medical professional so you are not required to undertake a complex assessment.

9.12.2 How is a statutory declaration different to an affidavit?

Unlike an affidavit, a statutory declaration is not made by oath or by affirmation. Most courts require affidavits, but statutory declarations can be used for a variety of other purposes.

The penalty for making a false statutory declaration is significant. It is just as important for a person to tell the truth when making a statutory declaration as it is when making an affidavit.

9.12.3 Can multiple people make a single statutory declaration?

No. It is recommended that each person complete their own separate statutory declaration – even though the statements of facts by each person may be identical.