Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. declarations are used for many purposes including:
- verification of insurance claims;
- proof of age;
- applications for sick leave or some benefits;
- other situations where a formal record is required that states the information provided is true.
The person making the statement (the declarant) must sign the declaration in the presence of an authorised A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. (e.g. a justice of the peace) and make a solemn declaration that it is true and correct. A A written statement of facts that meet statutory requirements by being signed and declared to be true before an official authorised to take declarations. can only be made by a natural person (i.e. not by an organisation or company).
Anyone knowingly making a false declaration is liable to criminal The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. for The criminal offence of lying under oath, when questioned in court or making a sworn statement. See also affirmation; oath..
A statutory declaration may be typed or handwritten, and should be in a similar form to the following if for use in Victoria:
Statutory declaration proforma
I [insert declarant’s full name], [insert occupation] of [insert declarant’s street address] in the State of Victoria do solemnly and sincerely declare that [insert details].
I acknowledge that this declaration is true and correct, and I make it with the understanding and belief that a person who makes a false declaration is liable to the penalties of perjury.
[To be signed here by the declarant, in the presence of an authorised witness]
(Witness to complete the following section)
Declared at [place] in the State of Victoria, this [date] day of [month] 20[XX] before me, [witness to sign here] (Witness to write, type or stamp their name, title or position and address below their signature)
Standard statutory declaration forms and a list of authorised witnesses are available on the website the Victorian Government Department of Justice and Community Safety (www.justice.vic.gov.au).
‘Document signing stations’ provide the community with convenient access to justices of the peace during business hours and evenings. The stations are located in public places (e.g. police stations and libraries). To find a document signing station, use the ‘Find a JP document signing station’ tool at www.justice.vic.gov.au. Services offered by justices of the peace at signing stations include:
- attesting the execution of a document;
- witnessing an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. for use in An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.;
- witnessing a statutory declaration;
- certifying a true copy of an original document;
- certifying a person’s identity.
For information about justices of the peace and public notaries, see ‘Witnessing legal documents’, below.
Statutory declarations that are to be used in other Australian states may require different wording, and it is best to have them witnessed by a justice of the peace or a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister..
Before making a declaration, check the requirements of the different states with the Law Institute of Victoria (see ‘Contacts’ at the end of this chapter).
Declarations made under Commonwealth laws also require different wording. The list of authorised witnesses for Commonwealth declarations differs to those to be used in Victoria. The requirements for declarations made under Commonwealth laws should be checked with the relevant government department, authority or court before making the declaration. The Victorian Government Department of Justice and Community Safety’s website (www.justice.vic.gov.au) has information about this.
Any documents that are to be used overseas should be witnessed by a public notary or justice of the peace. However, this depends on the country, as some A document that sets out what a person wants to happen to their money and other property after they die. only accept the seal of a public notary. Check the requirements with the consulate for that country before having any documents witnessed.
A statutory declaration may be signed, and witnessed, electronically.
Affidavits are sworn documents that are mostly used in legal proceedings. Affidavits are made in writing, and must be clearly legible. A person making an affidavit must take an A person’s promise when they swear to tell the truth in court, or when signing an affidavit. A person taking an oath places one hand on the Bible or other holy book to demonstrate how seriously they take their promise. See also affirmation. on the Bible (or other religious book), or make an A formal promise to the court that a statement made by a witness, in court or in an affidavit, is true. An alternative to a religious oath., that the contents are true and correct, in the presence of a person who is authorised to receive affidavits (see ‘Witnessing legal documents’, below).
- the position of Commissioner for taking Affidavits was abolished in Victoria in 1990;
- no fees are payable for witnessing documents (except as a public notary, see ‘Public notaries’, below);
- affidavits may be signed and/or witnessed by electronic means.
Affidavits for use in an Australian court exercising federal The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. may be sworn before any justice of the peace, An official, usually based at a police station, who is not a judge or magistrate but has the same power as judges and magistrates to grant or refuse bail to an accused person., public notary or lawyer.
Depending on the purpose of the affidavit, other classes of people (i.e. other professions) may be able to witness affidavits.
In Family Court matters, the list of suitable witnesses differs from state to state; check with the Family Court The administrative section of a court that accepts documents filed with the court and also handles some public enquiries. (see ‘Contacts’ at the end of this chapter) or visit www.familycourt.gov.au.
Witnessing legal documents
To have legal force, a document (e.g. a statutory declaration or an affidavit) must be witnessed by a person authorised to do so under state or Commonwealth law.
Except for those who have been specifically appointed to witness documents (i.e. justices of the peace and The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. justices), people in various occupations are authorised by the Oaths and Affirmations A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2018 (Vic) to witness documents for use in Victoria. A list of authorised witnesses is available on the Victorian Government Department of Justice and Community Safety’s website (www.justice.vic.gov.au). Also, standard statutory declaration forms usually include a list of approved witnesses.
The requirements for witnessing statutory declarations or receiving affidavits vary according to where the document is to be used, so it is important to check the requirements of the relevant jurisdiction before having a document witnessed.
A statutory declaration or affidavit can be signed and/or witnessed electronically.
Honorary justices (justices of the peace)
Justices of the peace – who, together with bail justices, are known as honorary justices – are regulated by the laws of the state or territory that appoints them. In Victoria, the appointment of honorary justices is regulated by the Honorary Justices Act 2014 (Vic) (s 7).
Honorary justices in Victoria have the power to witness a range of legal documents, including statutory declarations and affidavits, and to certify true copies of documents. They can witness interstate and international documents. Honorary justices cannot (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. for witnessing documents.
Victorian honorary justices no longer have the power to sit as magistrates to hear In Victoria, a child or young person under 18. See also infant. offences, to conduct A hearing in a Magistrates’ Court that decides whether someone charged with a serious criminal offence should face trial in a higher court. Also known as a preliminary examination. See also indictable offence., to issue search warrants, or to perform A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. ceremonies.
It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). punishable by imprisonment to pretend to be a honorary justice.
To find an honorary justice, contact the Honorary Justice Office (see ‘Contacts’ at the end of this chapter).
Bail justices can witness certain documents under the Oaths and Affirmations Act 2018 (Vic) (e.g. statutory declarations and affidavits for use within Victoria). Bail justices are lay people appointed by the Attorney-General under the Magistrates’ Court Act 1989 (Vic) (s 120A). They do not charge fees.
Notaries are senior legal practitioners who authenticate, prepare, attest, witness and certify original and copies of legal documents for use overseas. They certify documents originating in Australia and verify their validity under our laws.
Under the Hague Convention (1899, 1907), the office and seal of a notary is internationally recognised. Fees are charged for these services.
Under the Public Notaries Act 2001 (Vic), notaries are appointed by the chief justice of the Supreme Court.
To find a notary in your area, contact the Law Institute of Victoria (see ‘Contacts’ at the end of this chapter).