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In New South Wales (NSW), a statutory declaration must adhere to the prescribed format provided in either the Eighth or Ninth Schedule of the Act.

 

The format outlined in the Eighth Schedule is as follows:

 

“I, [full name], do solemnly and sincerely declare that [declaration], 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 format outlined in the Ninth Schedule is as follows:

 

“I, [full name], of [residence], do hereby solemnly declare and affirm that [facts to be stated]. And I make this solemn declaration, as to the matter (or matters) aforesaid, according to the law in this regard, and subject to the punishment by law provided for any wilfully false statement in any such declaration.”

 

The declaration should include the person’s complete name, address, and occupation, followed by the facts to be declared as true. It must be signed in the presence of authorised witnesses, and the date and place of the declaration should be stated.

 

Attachments, referred to as annexures, can be included with a statutory declaration. These annexures should be clearly indicated as forming part of the declaration.

 

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

 

The Department of Communities and Justice provides approved statutory declaration forms.

 

If the declaration pertains to a Commonwealth matter or involves a Commonwealth Government department, the Statutory Declarations Act 1959 applies, and a Commonwealth statutory declaration form should be utilised.

What is a Statutory Declaration?

A statutory declaration is a written statement or document that is declared to be true and accurate, made under oath or affirmation. It is a legally recognised document used to declare facts, affirm the truthfulness of information, or provide evidence in various legal and administrative contexts.

 

Statutory declarations are commonly used in government agencies, local government, department of justice, court proceedings, immigration matters, and other official purposes.

Who can Sign a Statutory Declaration?

The person who signs a statutory declaration is known as the declarant or affiant. In most jurisdictions, the declarant must be an individual who has personal knowledge of the facts stated in the declaration. Generally, the declarant must be at least 18 years old and mentally competent to make a legally binding statement.

 

The declarant may be the person directly involved in the matter being declared, such as an applicant or a witness to an event, or someone authorised to make the declaration on their behalf, such as a legal practitioner.

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Who can Witness a Statutory Declaration?

The witnessing of a statutory declaration involves the presence of a person who attests to the signing of the declaration and verifies the identity of the declarant. The specific requirements for who can witness a statutory declaration can vary depending on the jurisdiction. In general, the witness must be impartial and have no personal interest in the subject matter of the declaration. The declarant and the witness must sign the documents.

 

Commonly approved witnesses for statutory declarations include:

 

  • Solicitors, barristers, or lawyers.
  • Justices of the peace (JP) or notaries public.
  • Commissioner for Oaths or Commissioners for Declarations.
  • Court officials, including judges, magistrates, or court registrars.
  • Police officers or authorized government officials.
  • Qualified medical practitioners.
  • Registered teachers.
  • Certain bank officers, depending on local regulations.
  • Religious officials, such as priests, pastors, or imams (in some jurisdictions).

The requirements for witnesses can vary by jurisdiction, so it’s advisable to check the specific rules and regulations of the relevant jurisdiction to ensure compliance. Additionally, some statutory declarations may require a witness with specific professional qualifications, depending on the nature of the declaration and the purpose for which it is being used.

Penalty for False Statutory Declaration

The legislation sets forth consequences for creating an untrue declaration or engaging in declaration-taking without proper authority. According to Section 25 of the Act, “any individual who wilfully and corruptly creates and signs such a declaration, knowing that it contains false information of significance, commits an indictable offence and may face imprisonment for a period of 5 years.” In cases where the false declaration is made to gain material benefits, the potential imprisonment term can extend to 7 years.

 

The court views the act of making a false statutory declaration as a grave offense, warranting serious consideration.

 

In 2009, Marcus Einfeld, a former Federal Court judge, received a sentence of up to 3 years’ imprisonment for knowingly making a false statement under oath and attempting to pervert the course of justice. The non-parole period imposed was two years.

 

The case revolved around a speeding ticket that Einfeld contested. The evidence showed that his vehicle had been captured by a speed camera exceeding the speed limit.

 

Einfeld claimed that he was not the driver at the time. He provided this testimony under oath in the Local Court and also signed a statutory declaration supporting his claims. However, it was later discovered that his friend had passed away three years prior to the offence.

 

Judge Bruce James of the NSW Supreme Court determined that Einfeld had deliberately and premeditatedly committed perjury in order to avoid receiving demerit points on his driver’s license. The judge concluded that Einfeld’s actions constituted planned criminal activity as he falsely nominated another person as the driver of the vehicle.

 

What is the Difference between a Statutory Declaration and an Affidavit?

A statutory declaration and an affidavit are both written documents used to provide sworn statements or evidence in a legal context. While they serve similar purposes, there are distinct differences between the two:

 

Purpose

 

A statutory declaration is typically used to declare facts or provide evidence for non-contentious matters. It is commonly used for administrative or regulatory purposes, such as confirming personal details, stating eligibility for benefits, or affirming the truthfulness of certain information. On the other hand, an affidavit is primarily used in legal proceedings and litigation to present evidence, support a case, or provide testimony.

 

Legal Authority

 

A statutory declaration is made under specific legislation or statutory provisions, which vary between jurisdictions. The requirements for making a statutory declaration, such as the form and content, are typically prescribed by law. In contrast, an affidavit is governed by the rules of court procedure and is usually made in accordance with specific court rules or legislation.

 

Format and Structure

 

Statutory declarations often follow a standard format provided by the relevant legislation. They usually include a statement of truth, declaration of the declarant’s identity, description of the facts being declared, and a signature. Affidavits, on the other hand, generally have a more structured format, including numbered paragraphs that set out the evidence or testimony being provided. Affidavits also require the affiant’s signature to be witnessed by a qualified person, such as a lawyer or commissioner for oaths.

 

Admissibility in Court

 

Statutory declarations are generally not admissible as evidence in court proceedings unless specifically authorised by legislation. They are primarily used for administrative or non-contentious matters. In contrast, affidavits are considered legal evidence and are admissible in court. They play a crucial role in presenting evidence, supporting legal arguments, and influencing the outcome of a case.

 

The specific requirements and distinctions between statutory declarations and affidavits can vary between jurisdictions. It is advisable to consult the relevant legislation or seek legal advice to ensure compliance with the specific rules and requirements applicable in a particular jurisdiction. If you need help on how to write an affidavit for Court, you can call our team of lawyers.

 

At Lyons Law Group, our team of highly skilled lawyers is well-equipped to assist you with your legal needs. Whether you require guidance in preparing a statutory declaration in NSW or seek legal advice on other matters, we are here to help.

 

If you have any further questions or inquiries regarding statutory declarations in NSW, please don’t hesitate to get in touch with us.

Author

  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.