Updated by Karen Lee, Principal, Legal Know-How

Matthew Hall, Solicitor director, Artifex advisors

A statutory declaration is a written statement where a person declares something to be true. If the declarant intentionally makes a false statement in a declaration, the declarant can be charged with an offence. Currently, the penalty for making a false statement in a statutory declaration is a maximum of 4 years’ imprisonment: s 11, Statutory Declarations Act 1959 (Cth).

A declarant who intentionally makes a false statement in a declaration can face other serious consequences. For example, a finding that an applicant who wishes to be admitted into legal practice has previously made false statements or sworn false statutory declarations or affidavits in legal proceedings is considered inconsistent with the requirements of integrity and honesty that are essential prerequisites for admission as a lawyer. See Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board where the person made a statutory declaration knowing it to be false with intent to pervert the course of justice. Further, a lawyer who signs a statutory declaration containing statements which he or she knew to be false can be found guilty of professional misconduct. See Pham v Legal Services Commissioner where a lawyer who submitted a false statutory declaration seeking to have the supervised legal practice condition removed from his practicing certificate was found guilty of professional misconduct by the Victorian Civil and Administrative Tribunal.

Statutory declarations are governed by the laws of each separate Australian jurisdiction (state, territory and federal). The main difference between a statutory declaration and an affidavit is that the former is used in non-litigious matters and the latter is used in litigious matters.

Any natural person (as distinct from a corporation or other legal person) can make a statutory declaration. Guidance from the Attorney-General’s Department (AGD) specifically stated that this includes “minors and retirees”. In the case of a corporation, a person who has knowledge of the relevant facts can make the statutory declaration. For example, a company director or a company secretary can make a statutory declaration on behalf of their company if they have the relevant facts. A statutory declaration must be made in the prescribed form before an authorised witness. It is useful to note here that matters relating to a false statutory declaration or a false witness are serious and could be investigated by the Australian Federal Police.

If any documents are annexed to the statutory declaration, the document must indicate that it is the identified annexure to the statutory declaration. The documents should be annexed to the statutory declaration when the declarant signs it in front of the witness.

Generally, if you need to amend a statutory declaration that has yet to be made and witnessed, it is preferable to re-draft the statutory declaration.

However, if the statutory declaration has been made (and witnessed), then any amendment will need to be made in front of the same witness. The declarant and the witness will then initial each amendment in the margin of the document.

See Statutory declarations.