STATUTORY DECLARATIONS REGULATIONS 2018
EXPLANATORY STATEMENT
Issued by authority of the Attorney-General
in compliance with section 15J of the Legislation Act 2003
PURPOSE AND OPERATION OF THE INSTRUMENT
The Statutory Declarations Act 1959 (Cth) (the Act) establishes a regime for Commonwealth statutory declarations, including the purposes for which a statutory declaration may be used, how a statutory declaration is made and the penalty for intentionally making a false declaration.
Section 14 of 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, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Section 8 of the Act provides that a statutory declaration must be made in the prescribed form and before a prescribed person.
A Commonwealth statutory declaration is generally used in matters concerning the Commonwealth or the Australian Capital Territory. It is a frequently used document within the community and is commonly used to legally verify names, addresses, insurance claims, superannuation matters, lost passports and as evidence to support sick leave. The form is also used extensively for immigration purposes as part of visa applications.
The Statutory Declarations Regulations 1993 (the Principal Regulations) sunset on 1 October 2018 and have been remade with minor amendments to ensure the Regulations remain fit for purpose and meet the needs of the community.
The Statutory Declarations Regulations 2018 (the Regulations):
- set out the prescribed form for making a Commonwealth statutory declaration;
- list the occupations and persons before whom a Commonwealth statutory declaration can be made; and
- repeal the Statutory Declarations Regulations 1993.
CONSULTATION
Consistent with the requirements of the Legislation Act 2003, the Attorney-General’s Department (the Department) conducted a six-week public consultation process which included a public call for submissions on the Department’s website. The Department invited written submissions seeking views as to whether the Principal Regulations remain fit for purpose and continue to meet the needs of the community. Submissions proposing the inclusion of new categories of authorised witnesses needed to demonstrate that a genuine unmet need exists in the community that could be appropriately fulfilled by the addition of the proposed category.
The Department also wrote to representatives of bodies and organisations currently listed as authorised witnesses under Schedule 2 to the Principal Regulations, inviting them to make a submission and to provide their views on whether any updates are required to the Principal Regulations. Additionally, the Department wrote to members of the public who had written over the past 10 years with suggestions for improvement or amendments to the Principal Regulations, inviting them to make an updated submission. The Department also receives and responds to a significantly large number of statutory declaration enquiries from members of the public, many of which have raised concerns about the difficulty in locating an authorised witness while overseas.
Following assessment of whether the proposed new category appropriately satisfied the unmet need…
Overview
The Statutory Declarations Regulations 2018 were enacted to modernise and ensure the continued efficacy of the regulatory framework governing Commonwealth statutory declarations. The Statutory Declarations Act 1959 (Cth) established the legislative basis for statutory declarations made under the Commonwealth, but the accompanying Statutory Declarations Regulations 1993 had reached the end of their useful life and required renewal. Enacted by the Governor-General under the authority of the Statutory Declarations Act 1959, these regulations aim to meet contemporary needs by updating the prescribed form of statutory declarations, expanding the list of authorised witnesses who can attest to the validity of such declarations, and repealing the outdated 1993 regulations. The policy objective is to provide a streamlined and accessible process for individuals to legally verify statements and evidence, ensuring that statutory declarations remain a vital tool for various administrative and legal purposes.
To address potential gaps and community needs, the Attorney-General’s Department conducted a six-week public consultation, inviting submissions to propose new categories of authorised witnesses. After careful consideration of the submissions received and historical feedback, the regulations now include additional professions such as architects, midwives, and migration agents, alongside other amendments to better align with current legal frameworks and professional standards. The regulations also introduce flexibility in how declarants and witnesses provide contact information, balancing the need for verification with privacy considerations. This approach ensures that statutory declarations continue to serve the community effectively while upholding fundamental rights and obligations.
Scope and Application
The Statutory Declarations Regulations 2018 apply to all individuals and entities that require the use of Commonwealth statutory declarations within Australia. These declarations are used in various contexts, including legal matters concerning the Commonwealth or the Australian Capital Territory, insurance claims, lost passports, superannuation matters, sick leave, and immigration purposes such as visa applications. The Regulations prescribe the form for making such declarations and list the occupations and persons authorised to witness them. The Regulations extend to the entire Commonwealth of Australia, encompassing all states and territories, ensuring consistency and compliance with federal requirements. Exclusions and exemptions are limited to specific cases as outlined in the Regulations, which include the sunsetting of the previous Statutory Declarations Regulations 1993. The application of the Regulations can be extended or restricted through subordinate instruments, which are made under the authority of the Statutory Declarations Act 1959 and must not be inconsistent with the Act. These instruments are necessary for carrying out or giving effect to the Act and include detailed provisions on the form of statutory declarations, the authorised witnesses, and the verification process.
Key Provisions
- The Statutory Declarations Regulations 2018 (the Regulations) are designed to update and replace the existing Statutory Declarations Regulations 1993 (the Principal Regulations). Section 6 prescribes the form for making a Commonwealth statutory declaration, while Section 7 lists the occupations and persons who are authorised to witness a statutory declaration. The Regulations also repeal the Principal Regulations (Section 4).
- These Regulations impose obligations on the parties involved in making statutory declarations. According to Section 7, a statutory declaration must be made in the prescribed form (Schedule 1) and before a person who is either a legal practitioner, a person licensed or registered to practise in certain occupations listed in Schedule 2, or a person listed in Part 2 of Schedule 2. The prescribed form requires the declarant to provide details such as their name, address, occupation, and the name, qualification, and address of the authorised witness. Additionally, the Regulations allow for the optional provision of email addresses or phone numbers of the declarant or the authorised witness to facilitate verification of the declaration by the receiving organisation.
- The Act imposes penalties for making a false statutory declaration. Section 19 of the Statutory Declarations Act 1959 (the Act) stipulates that a person who intentionally makes a false declaration is guilty of an offence. The maximum penalty for this offence is 50 penalty units, which equates to approximately AUD 5,500 as of 2023, or imprisonment for a term of up to two years, or both. The Regulations do not introduce new offences or penalties; they adhere to the existing framework set out in the Act. However, they provide updated and additional categories of authorised witnesses, thereby ensuring the statutory declaration process remains current and relevant to the needs of the community.
- Area of Law
- Administrative Law
- Instrument
- Regulation
- Concepts
- Commencement Provisions
- Definitions & Interpretation
- Licensing & Registration
- Regulatory Standards
- Reporting & Disclosure Obligations
- Offence Provisions