What is a statutory declaration NSW? A statutory declaration is a written statement that a person swears, affirms or declares to be true in the presence of an authorised witness, who is usually a Justice of the Peace, a lawyer or a notary public.
A statutory declaration is a written document which sets out certain facts to the best of the knowledge or belief of the person making it. Statutory declarations should be pursuant to the legislation applicable in the relevant state, territory or country.
For New South Wales (NSW), parties make a statutory declaration under the Oaths Act 1900. Additionally, an authorised witness must witness the declarant’s signature. This article highlights points in relation to a statutory declaration in NSW.
Making a Statutory Declaration NSW
A person makes a statutory declaration when they need to prove facts, but usually not for court proceedings. Examples of the use of statutory declarations include:
- proving a person’s identity,
- transferring a speeding fine,
- proving that you have met the requirements for registration with a government body,
- declaring criminal convictions in another country, or applying for a business loan with a bank.
Persons Qualified to Make a Statutory Declaration
A statutory declaration must be made and signed by a natural person [not a corporation], and cannot be made or signed by or on behalf of any other person. An authorised officer of a corporation can make a declaration on behalf of the corporation.
The authorised officer must state their name, source of knowledge, and authority to make the declaration. In addition, if a legal practitioner has the Power of Attorney to act on another person’s behalf, the lawyer can make the declaration under their own right and under their name.
Authorised Witnesses for a Statutory Declaration NSW
Under Section 21 and Section 27 of the Oaths Act 1900, an authorised witness must be a:
- Justice of the Peace of Australia,
- notary public,
- commissioner of the court for taking affidavits,
- an Australian legal practitioner, or
- a person authorised to administer an oath.
The witness should check the declarant’s identity and their competency to make the declaration, and remind them that there are penalties for making a false statutory declaration.
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 cite identification documents, and certify that both of these requirements have been met.
Form of a Statutory Declaration in NSW
A statutory declaration made in NSW must be in the form of either the Eighth Schedule or the Ninth Schedule of the Oaths Act 1900.
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.”
You can find a sample of the form of a statutory declaration in NSW here.
Additionally, the declaration must state the declarant’s full name, address and occupation, and the essential facts to be declared true. The party must then sign it in the presence of an authorised witness (as previously mentioned). The declaration must also state the date and place of the declaration.
Supporting documents may be attached to a statutory declaration as annexes, and should clearly state that they form part of the declaration. In addition, any amendments need to be made before the declaration is witnessed, with the declarant and witness both required to sign each amendment.
Penalties for False Declaration
The Oaths Act 1900 prescribes penalties for making a false declaration and/or for taking a declaration without authority.
Section 25 provides that “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.” The term of imprisonment increases to 7 years if the person makes the false declaration for material benefit.
Case Law: Former Federal Court Judge Marcus Einfeld
In 2009, former Federal Court judge Marcus Einfeld was sentenced to a maximum of 3 years’ imprisonment for knowingly making a false statement under oath and for attempting to pervert the course of justice, with a non-parole period of two years.
In this case, Einfeld contested a speeding ticket. His car had been caught by a speed camera travelling over the speed limit. He claimed that he was not the driver of his vehicle, and that a friend was driving the car. Einfeld gave evidence under oath in the Local Court, and signed a statutory declaration for his claims. He did so knowing that his friend died 3 years before the offence was committed.
NSW Supreme Court Judge Bruce James ruled that 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.
The Importance of Seeking Legal Advice
The law does not take false declarations or taking a declaration without authority lightly. As with the case of former Federal Court Judge Einfeld, a person can face imprisonment of up to 3 years. Thus, it is important that the facts stated in your declaration are true. To prevent any complications in the statutory declaration, we highly advise seeking legal advice.
JB Solicitors has a leading team of lawyers who can help with your case. We can guide you in making a statutory declaration in NSW and give you legal advice on any other legal matters you may have.
Do you have any more queries on a statutory declaration NSW? Contact us today.
