Statutory Declaration (NSW)

A statutory declaration is a written statement made by a person before an authorised witness. By signing the statement, the person declares the information contained in it to be true to the best of their knowledge and belief. This article explains how to make a statutory declaration in NSW.

When should I make a statutory declaration?

A statutory declaration is usually used when there are facts that need to be proved but not usually for court proceedings. Examples include to prove a person’s identity, to transfer a speeding fine, to prove requirements have been met for registration with a government body, to declare criminal convictions in another country, or to apply for a business loan with a bank.

Who can make a statutory declaration in NSW?

A statutory declaration must be made and signed by a natural person. It cannot be made or signed by or on behalf of any other person.

A declaration on behalf of a corporation can be made by an authorised officer of the corporation, who should state their name, source of knowledge and authority to make the declaration.

If a lawyer has been granted power of attorney to manage the affairs of another person, the declaration must be made in the lawyer’s own right and under their name.

Who can take a statutory declaration in NSW?

Under sections 21 and 27 of the Oaths Act 1900, an authorised witness must be a:

• Justice of the Peace;
• notary public;
• commissioner of the court for taking affidavits;
• legal practitioner; or
• person authorised to administer an oath.

The witness should check the declarant’s identity and their competency to make the declaration, and remind them there are penalties for making a false statutory declaration.

Identification

When taking a statutory declaration in NSW, the authorised witness must see the face of the declarant, have known the declarant for at least 12 months or sight identification documents, and certify that both of these requirements have been met.

Form

For a statutory declaration in NSW, the declaration must be made in the form given in either the Eighth or Ninth Schedule of the Act.

The Eighth Schedule:

“I,, 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.”

The Ninth Schedule:

“I,, of (residence), do hereby solemnly declare and affirm that [the facts to be stated according to the declarant’s knowledge, belief, or information, severally]. 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 declaration should state the person’s full name, address and occupation, then the facts to be declared to be true. It must then be signed in the presence of an authorised witness, and the date and place of the declaration must be stated.

Documents can be attached to a statutory declaration as annexures. The annexures which should clearly state they form part of the declaration.

Any amendments need to be made before the declaration is witnessed, with the declarant and witness both required to initial each amendment.

Approved statutory declaration forms are provided by the Department of Communities and Justice.

If the declaration is being made for a Commonwealth matter or Commonwealth Government department, the Statutory Declarations Act 1959 applies, so a Commonwealth statutory declaration form should be used.

Penalties

The Act prescribes penalties for making a false declaration and/or for taking a declaration without authority. Section 25 states “any person who wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular, shall be guilty of an indictable offence and liable to imprisonment for 5 years.” If the false declaration is made for material benefit, the jail term can increase to 7 years.

The court considers the making of a false statutory declaration to be a serious offence.

In 2009, former Federal Court judge Marcus Einfeld was sentenced to a minimum of two years jail after making a false statutory declaration. Einfeld pleaded guilty to perjury and making a false statement with intent to pervert the course of justice.

In 2006, he claimed he was not the driver of a vehicle registered to him at the time of a camera-detected speeding offence. He made a statutory declaration that a friend was driving the car, knowing the friend had died three years before the offence.

NSW Supreme Court judge Bruce James considered Einfeld had committed “deliberate, premeditated perjury” to avoid incurring demerit points on his driver’s licence, and concluded there was “planned criminal activity” in nominating another person as the driver of the vehicle.

If you need advice or representation on any legal matter, please contact Armstrong Legal.