Contributor: W Benjamin Lindner
Legal documents are formally executed, written, legally binding documents that formally express and record a legally enforceable act, or contractual duty, obligation, or right, and evidences that act, process, or agreement.
Statutory declarations are used for many purposes including:
•verification of insurance claims;
•proof of age;
•applications for sick leave or some types of benefits; and
•other situations where a formal statement is required that the information being provided is true and correct.
The person making the statement (the declarant) must sign the declaration in the presence of an authorised witness and make a solemn declaration that it is true and correct. A statutory declaration may only be made by a natural person, not by an organisation or company.
Anyone knowingly making a false declaration is liable to criminal prosecution for perjury.
A statutory declaration may be typed or handwritten, and should be in similar form to the following if for use in Victoria:
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 required 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 person making declaration, in presence of 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 are obtainable from legal stationers. Forms and lists of authorised witnesses can be downloaded from the state Department of Justice website at www.justice.vic.gov.au/justices. Document Signing Stations (DSS) are provided as convenient places for access to a Justice of the Peace for the witnessing of attesting the execution of a document, witnessing affidavits and statutory declarations, certifying a person’s identity or that a document is a true copy of the original. Police stations and libraries are often DSS. For information about justices of the peace (now referred to as Honorary Justices) and public notaries, see “Witnessing legal documents”, below.
Statutory declarations for use in other states of Australia may require different wording, and it may be best to have them witnessed by an Honorary Justice or a solicitor. Check the requirements before making the declaration. The Law Institute of Victoria can provide information about this; tel 9607 9311.
Declarations made under Commonwealth laws may also require slightly different wording, and have different lists of authorised witnesses. These requirements should be checked with the relevant government department, authority or court before making the declaration. The state Department of Justice website (see above) has information about this.
Any documents for use overseas should be witnessed by a public notary or Honorary Justice, depending on the country; some will only accept the seal of a public notary. Check the requirements with the consulate for that country before having the document witnessed.
These 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 oath on the Bible or other religious book, or make an affirmation that the contents are true and correct, in the presence of a person who is authorised to receive affidavits (see “Witnessing legal documents”).
•the position of Commissioner for taking Affidavits was abolished in Victoria in 1990; and
•no fees are payable for witnessing documents (except as a public notary, see “Public notaries”).
Affidavits for use in an Australian court exercising federal jurisdiction may be sworn before any Honorary Justice (formerly known as a justice of the peace), public notary or lawyer. Depending on the purpose of the affidavit, a number of other classes of person may also be able to witness affidavits. In Family Court matters the list of suitable witnesses differs from state to state; check with your nearest Family Court registry, or go to the website at www.familycourt.gov.au.
To have legal force, a document such as a statutory declaration or affidavit must be witnessed by a person authorised under state or Commonwealth law.
Apart from those who have been specifically appointed to witness documents (Honorary Justices and Bail Justices), people in various occupations are authorised under section 107A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) to witness documents for use in Victoria. Lists of authorised witnesses are available on the Department of Justice website at www.justice.vic.gov.au/justices. Standard statutory declaration forms also generally include a list of approved witness categories (also available on the Department of Justice website).
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 the document witnessed.
Justices of the Peace (JPs), who together with Bail Justices (see following) are known collectively as Honorary Justices, are regulated by the laws of the state or territory that appoints them. The appointment of JPs is regulated by section 7 of the Honorary Justices Act 2014 (Vic).
Honorary Justices in Victoria have the power to witness a range of legal documents, including statutory declarations and affidavits (see above), and to certify true copies of documents. They are able to witness interstate and international documents. Honorary Justices are not permitted to charge for witnessing documents.
Honorary Justices also have powers under some federal laws. Under the Customs Act 1901 (Cth), for example, a person who has refused to agree to a request by Customs Officers for an external search may be taken before a justice to determine whether the search should be allowed.
Victorian Honorary Justices no longer have the power to sit as magistrates to hear minor offences, to conduct committal proceedings or issue search warrants, or to perform marriage ceremonies.
It is an offence punishable by a term of imprisonment for a person to pretend to be an Honorary Justice, or to pretend to be capable of acting as an Honorary Justice in Victoria.
To find a Justice of the Peace, telephone 1300 365 567 (recorded information), contact your local municipal council or Magistrates’ Court for a list of Honorary Justices in your area, or go to the Department of Justice website.
Honorary Justice Office
GPO Box 4349, Melbourne Vic 3001
Tel: 8684 4117
Bail Justices, as well as hearing applications for bail under the Bail Act 1977 (Vic) and applications for Interim Accommodation Orders for children under the Children, Youth and Families Act 2005 (Vic), can witness some documents under the Evidence (Miscellaneous Provisions) Act 1958 (Vic) such as statutory declarations and affidavits for use within Victoria.
Bail Justices are usually lay people appointed by the Attorney-General under section 120A of the MC Act. They do not charge fees.
Notaries are senior legal practitioners who authenticate, prepare, attest, witness and certify original and copy legal documents for use overseas. They certify documents originating in Australia and verify their validity under our laws. Under the Hague Convention, 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 of Victoria.
To find a notary in your area contact:
Law Institute of Victoria (LIV)
470 Bourke Street, Melbourne Vic 3000
Tel: 9607 9311
LIV legal referral service
Tel: 9607 9550