Legal documents

 

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

Statutory declarations are used for many purposes including:

verification of insurance claims;

proof of age;

applications for sick leave or some types of benefits;

other situations where a formal record is required that states that the information provided is true and correct.

The person making the statement (the declarant) must sign the declaration in the presence of an authorised witness (e.g. a justice of the peace) and make a solemn declaration that it is true and correct. A statutory declaration 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 prosecution for perjury.

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

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 the declarant, 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 and a list of authorised witnesses are available on the website the Victorian Government Department of Justice and Regulation (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 affidavit for use in court;

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, seeWitnessing legal documents”.

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 solicitor. Before making a declaration, check the requirements of the different states with the Law Institute of Victoria (seeContacts”).

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 Regulation’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 will only accept the seal of a public notary. Check the requirements with the consulate for that country before having any documents witnessed.

Affidavits

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 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 (seeWitnessing legal documents”).

Note that:

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, seePublic notaries”).

Affidavits for use in an Australian court exercising federal jurisdiction may be sworn before any justice of the peace, bail justice, 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 registry (seeContacts”) 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.

Apart from those who have been specifically appointed to witness documents (i.e. justices of the peace and bail justices), people in various occupations are authorised by the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (s 107A) to witness documents for use in Victoria. A lists of authorised witnesses is available on the Victorian Government Department of Justice and Regulation’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.

Honorary justices (justices of the peace)

Justices of the peace – who, together with bail justices (see below), are known collectively as honorary justices – are regulated by the laws of the state or territory that appoints them. In Victoria, the appointment of justices of the peace 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 can witness interstate and international documents. Honorary justices are not permitted to charge for witnessing documents.

Honorary justices also have powers under some federal laws. For example, under the Customs Act 1901 (Cth), a person who has refused to agree to a request by customs officers to conduct an external search may be taken before a honorary 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, to issue search warrants, or to perform marriage ceremonies.

It is an offence punishable by imprisonment to pretend to be a honorary justice, or to pretend to be capable of acting as a honorary justice in Victoria.

Finding a honorary justice

To find a honorary justice, telephone 1300 365 567 (recorded information), or ask your local council or Magistrates’ Court for a list of honorary justices in your area, or contact the Honorary Justice Office (seeContacts”), or visit the Victorian Government Department of Justice and Regulations’s website (www.justice.vic.gov.au).

Bail justices

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 certain 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 Magistrates’ Court Act 1989 (Vic). They do not charge fees.

Public notaries

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 of Victoria.

To find a notary in your area, contact the Law Institute of Victoria (seeContacts”).

Contacts and resources