Statutory Declarations Amendment Regulations 2004 (No. 1) 2004 No. 262
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 262
STATUTORY DECLARATIONS AMENDMENT REGULATIONS 2004 (NO. 1)
Issued by the Authority of the Attorney-General
Statutory Declarations Act 1959
Section 14 of the Statutory Declarations Act 1959 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, and necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 8 of the Act provides, among other things, that a statutory declaration made under the Act must be made in the form in the Schedule to the Act. When they commence operation, items 55 and 56 of Schedule 1 to the Law and Justice Legislation Amendment Act 2004 (the Amendment Act) will amend the Act to provide that a statutory declaration is instead to be made in the prescribed form.
Items 55 and 56 of Schedule 1 to the Amendment Act will commence operation on a day fixed by Proclamation or, if a date is not proclaimed, on the first day after six months has elapsed from the day on which the Amendment Act received the Royal Assent. The Amendment Act received the Royal Assent on 26 May 2004.
The purpose of the Regulations is to amend the Statutory Declarations Regulations 1993 (the Principal Regulations) to prescribe a new form for making a statutory declaration and to update the list of persons before whom a statutory declaration may be made.
New regulation 3 provides that the form for making a statutory declaration appears in a new Schedule 1 to the Principal Regulations. The form prescribed by the Regulations is drafted in a plain language style to make it clearer and more accessible to the general public.
The Regulations contain a transitional provision that allows either the new form or the existing form to be used to make a statutory declaration until 31 December 2005. The transitional provision has been included so that the significant number of unused commercially printed statutory declaration forms still in existence will not all go to waste.
Section 8 of the Act provides that a statutory declaration made under the Act must be made before a prescribed person.
New regulation 4 is in similar terms to the existing regulation 3 of the Principal Regulations and prescribes the persons before whom a statutory declaration may be made.
New paragraph 4(a) stipulates that a person who is currently authorised under a law in force in a State or Territory to practise as a member of a profession listed in Part 1 of a new Schedule 2 to the Principal Regulations may witness a statutory declaration. However, new paragraph 4(b) ensures that legal practitioners who are enrolled on the roll of a Supreme Court of a State or Territory or the High Court, but who do not hold a practising certificate and therefore do not qualify under paragraph 4(a), may witness a statutory declaration. New paragraph 4(c) prescribes the other persons who may witness a statutory declaration as being those listed in Part 2 of new Schedule 2.
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The Schedule to the Principal Regulations contains a list of prescribed persons authorised to witness statutory declarations. New Schedule 2 re-makes the Schedule and, consistent with current drafting practice, assigns an item number to each entry in the list. The existing entries for 'Civil marriage celebrant' and 'Minister of religion registered under Division 1 of Part IV of the Marriage Act 1961' are amended to be consistent with the terminology now used in that Act.
Representations have been received requesting that optometrists be added to the list of prescribed persons who may witness statutory declarations. The representations that were received established that there was an unmet call for optometrists to be able to witness statutory declarations in the community. The Regulations meet this unmet demand by adding optometrists to the list of prescribed persons authorised to witness statutory declarations.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
Subsections 4(1) and (2A) of the Acts Interpretation Act 1901, read together, provide that regulations may be made between the passing and commencement of legislation upon which those regulations rely for their authority, as long as such regulations are expressed to commence no earlier than the legislation.
The Regulations will commence on the commencement of items 55 and 56 of Schedule 1 to the Amendment Act. Those items will not be commenced by Proclamation and therefore will commence six months after the day on which the Amendment Act received the Royal Assent, that is, 26 November 2004.
Overview
The Statutory Declarations Amendment Regulations 2004 (No. 1) were enacted to amend the Statutory Declarations Regulations 1993 in response to changes introduced by the Law and Justice Legislation Amendment Act 2004. This amendment followed the Royal Assent of the Amendment Act on 26 May 2004, with the Regulations set to commence six months later, on 26 November 2004. The Regulations aim to update the form in which statutory declarations must be made, aligning with the new requirements stipulated by the Amendment Act, and to modernise the prescribed form by drafting it in plain language to enhance clarity and accessibility for the general public. Additionally, the Regulations provide a transitional period until 31 December 2005, allowing both the new and existing forms to be used to ensure that existing printed forms are not wasted. The Regulations also update the list of authorised persons who may witness statutory declarations, including the addition of optometrists in response to community demand.
Scope and Application
The Statutory Declarations Amendment Regulations 2004 (No. 1) are made under the authority of Section 14 of the Statutory Declarations Act 1959, which empowers the Governor-General to prescribe regulations that are not inconsistent with the Act and necessary for its implementation. These Regulations amend the Statutory Declarations Regulations 1993 to update the form for statutory declarations and the list of authorised persons who can witness these declarations. The Regulations introduce a new form, drafted in plain language to enhance clarity and accessibility for the public, and prescribe authorised persons, including legal practitioners and professionals such as optometrists, who can witness statutory declarations. The Regulations also include a transitional provision allowing the use of the old or new form until 31 December 2005, ensuring that existing forms are utilised before they become obsolete. The Regulations do not specify any conditions for their exercise and will commence on 26 November 2004, six months after the Law and Justice Legislation Amendment Act 2004 received Royal Assent.
Key Provisions
The Statutory Declarations Amendment Regulations 2004 (No. 1) fundamentally alter the form and process of making statutory declarations in Australia under the Statutory Declarations Act 1959. Regulation 3 prescribes a new form for making a statutory declaration, which is intended to be more accessible and comprehensible to the general public, as it is drafted in plain language. This new form is outlined in Schedule 1 of the Principal Regulations, replacing the previous form stipulated in the Schedule to the Act. To ensure a smooth transition, regulation 4 allows the use of either the new form or the old form for making statutory declarations until 31 December 2005. This transitional period is intended to prevent the wastage of unused commercially printed forms that still adhere to the previous format.
The Regulations impose specific obligations on individuals making statutory declarations. Under section 8 of the Act, a statutory declaration must be made before a person prescribed under the Regulations. Regulation 4 updates the list of such persons, including authorised professionals such as those listed in the new Schedule 2 of the Principal Regulations. New paragraph 4(a) includes individuals authorised under state or territory laws to practise certain professions, while new paragraph 4(b) ensures that legal practitioners enrolled on the rolls of supreme courts or the High Court, even if not currently holding a practising certificate, can also witness declarations. Paragraph 4(c) lists other authorised persons. This expanded list addresses community demand by including optometrists, responding to representations highlighting their need to witness statutory declarations.
The Regulations do not specify any particular conditions for exercising the power to make them; however, they are subject to the general provisions of the Acts Interpretation Act 1901, which allow for regulations to be made between the passing and commencement of the legislation they rely on, provided they do not commence earlier than the legislation. The Regulations will commence on 26 November 2004, six months after the Royal Assent of the Law and Justice Legislation Amendment Act 2004, as no Proclamation will be issued to commence the relevant items of the Amendment Act.
Breaches of the Regulations may have legal ramifications, though the Regulations themselves do not explicitly outline offences or penalties. However, given that they amend the Statutory Declarations Act 1959, any failure to comply with the new requirements for making statutory declarations could potentially lead to legal consequences under the Act. While the Regulations do not specify penalties, non-compliance with statutory declaration requirements could result in the declaration being invalid, which could have significant legal repercussions depending on the context in which the declaration is used.