Commonwealth Statutory Declaration: What Australian Businesses Need to Know

Thinking about making or witnessing a Commonwealth statutory declaration in your Australian business? This guide covers everything you need to know, from legal requirements and best practices to how statutory declarations impact your workplace. Understanding this essential document will help you stay compliant and avoid costly mistakes.

What Is a Commonwealth Statutory Declaration?

A Commonwealth statutory declaration is a formal, legally binding written statement made under the Statutory Declarations Act 1959 (Cth). It is used to declare that certain facts or statements are true, for use in matters that involve the Australian Commonwealth government or agencies, as well as for various business and employment situations.

You might encounter Commonwealth statutory declarations in your business for things like:

• Verifying an employee or contractor’s identity or credentials
• Declaring lost or destroyed business documents
• Supporting applications to government departments (such as Centrelink, ASIC, or the ATO)
• Confirming certain business information for licensing or regulatory purposes

Unlike affidavits (which are typically used in court), statutory declarations are used for administrative or commercial purposes and carry penalties for making false declarations. In practical terms, this means you need to take them seriously – knowingly making a false statement in a statutory declaration is a criminal offence.

When Might My Business Need a Commonwealth Statutory Declaration?

Most Australian businesses will need to deal with a statutory declaration at some stage. Here are some common scenarios where Commonwealth statutory declarations can be required:

• Employment and HR: Employees or job candidates may submit statutory declarations to explain absences, confirm personal details, or respond to HR investigations. Businesses may request one if an employee can’t provide a standard medical certificate – for example, when taking sick leave (read more about using statutory declarations for sick leave).
• Business Contracts: Statutory declarations may be used to verify facts for contract disputes or tenders – especially in construction or government procurement.
• Government Applications: Whether you’re applying for grants, licences, or registrations, government agencies often require statutory declarations to prove eligibility or compliance.
• Lost Documents or Proof of Identity: If you’re unable to provide an original document (like a lost ASIC registration certificate), a statutory declaration may be accepted as evidence.
• Regulated Industries: Sectors such as childcare, healthcare, or financial services may require directors, employees, or service providers to submit statutory declarations for various compliance matters.

No matter the context, the intent is the same: you’re legally swearing that the details in the statement are true and correct to the best of your knowledge.

What’s Required in a Commonwealth Statutory Declaration?

To be valid, a Commonwealth statutory declaration must follow a strict template. You can download the official form from the Attorney-General’s Department website, but here’s what you’ll always need:

• The proper wording: The declaration must use the standard wording set by the Australian government. Don't change the language or add extra statements unless they fit within the format.
• The true facts or statements: Write clearly what you are declaring. It’s usually best to use plain English and be as precise as possible about dates, names, and facts.
• Signature: The person making the declaration (the declarant) must sign the document in the presence of an authorised witness.
• Authorised witness: Only certain people can witness a Commonwealth statutory declaration. These include police officers, nurses, lawyers, accountants, and other specified professionals (see our guide on witnessing signatures).
• Date and place: These must be included so there’s a record of when and where the declaration was made and witnessed.

Altering the form or missing any required sections can render the statutory declaration invalid. And, as with any legal document, you must be truthful – knowingly making a false declaration is a serious offence.

How Do I Complete and Witness a Commonwealth Statutory Declaration?

Here’s a step-by-step guide to help you, your staff, or your business associates get the process right:

1. Download the correct form: Use the official Commonwealth statutory declaration form. Don’t use a state-specific version unless explicitly required.
2. Fill in the details: Clearly state the facts or information you need to declare. Avoid vague wording. If you’re explaining why an employee needs sick leave, for example, specify the dates and circumstances (here's a guide to writing statutory declarations for sick leave).
3. Find an authorised witness: This can be a legal practitioner, justice of the peace, pharmacist, police officer, or one of the many professionals recognised under the Statutory Declarations Regulations 2018. The witness must observe you signing, then sign and fill in their own details.
4. Date and sign the declaration: Do not sign until you are in front of the witness. Both you and the witness must sign and date the declaration at the same time.
5. Retain or submit your statutory declaration: Keep a copy for your records and provide the original to the business, agency, or individual requesting it.

It's important to ensure all these steps are followed. If your business regularly deals with statutory declarations, consider preparing a simple in-house guide for your team.

When Can You Use Statutory Declarations for Employment Matters?

Statutory declarations have a unique value in the workplace, especially when it comes to employee leave, misconduct investigations, or verifying information that isn’t easily documented in other ways. For example, when an employee takes sick leave but can’t provide a doctor’s certificate, a statutory declaration may be accepted as a replacement (find out more about sick leave and statutory declarations).

That said, not all awards or workplace agreements accept statutory declarations in place of medical certificates, and your company policy should make this clear. If you’re unsure, it’s best to check the terms of the relevant award or employment contract, or get advice from a legal expert familiar with employment contracts.

Who Can Witness a Commonwealth Statutory Declaration?

Only authorised witnesses can verify a Commonwealth statutory declaration. This protects the integrity of these documents and ensures consistency across Australia. Authorised witnesses include:

• Australian lawyers and notaries public
• Police officers
• Registered medical practitioners, nurses, and pharmacists
• Teachers and certain public servants
• Accountants (chartered, CPA, or IPA members)
• Justices of the Peace

The full list is set out in the Statutory Declarations Regulations 2018. Note that different documents require different types of witnesses, so always check the requirements for your specific use-case. For most business purposes, a lawyer, accountant, or police officer will suffice.

What Are the Risks of Getting It Wrong?

Statutory declarations are legally binding. Making a false declaration is a criminal offence and can lead to:

• Criminal penalties: Up to four years in prison if found guilty of making a false declaration.
• Invalid business transactions: If a statutory declaration is required for a deal, contract, or application and you submit an invalid one, the process may be delayed or cancelled.
• Loss of reputation or trust: Government agencies, regulators, or business partners may view false or improperly witnessed declarations as evidence of poor integrity and risk management.

It's your responsibility to ensure the declaration is completed and witnessed in line with the law. Similarly, if accepting statutory declarations from employees or business partners, check they are correctly filled in and witnessed by someone on the authorised list.

Are Electronic or Remote Statutory Declarations Accepted?

The COVID-19 pandemic led to temporary changes around remote witnessing of documents, including statutory declarations. As of mid-2024, the Commonwealth allows statutory declarations to be witnessed via video link, so long as the process follows specific requirements:

• The declarant and the witness are on a live audio-visual call
• The witness certifies they saw the person sign
• Electronic signatures may be used, according to government guidelines

These requirements are still evolving, so check the Attorney-General’s current guidance on electronic witnessing and consult your industry body if in doubt. For state-level statutory declarations, the rules may be different.

What Legal Documents Should My Business Have in Place?

Statutory declarations are just one type of legal document your business might need. Depending on your operations, you’ll also want to ensure you have the following:

• Employment Agreements: Clearly outline staff duties, rights, and entitlements. This can help reduce reliance on statutory declarations for disputes or clarifications (more on employment agreements here).
• Privacy Policy: If you collect or store personal information, you must communicate how you handle that data (here's why you need a Privacy Policy).
• Workplace Policies: Guides on topics like sick leave, remote work, and use of statutory declarations. These ensure clarity and compliance in HR matters (learn more about using statutory declarations in HR).
• Contract Templates: Service agreements, supplier contracts, and terms of trade can reduce your reliance on statutory declarations by explicitly setting out requirements upfront (explore contract drafting options).
• Authority to Act Form: Authorise someone to act on behalf of your business in legal or financial dealings with a formal document (find out when you need an Authority to Act Form).

Not sure which documents your business needs? Our team can walk you through what’s required for your industry and growth stage.

How Does a Statutory Declaration Differ from an Affidavit or Other Legal Statement?

It’s easy to get confused between statutory declarations and other legal statements, but there are important differences:

• Statutory declaration: Used to declare facts or statements to public agencies or for commercial matters. Witnessed by an authorised person and governed by the Statutory Declarations Act 1959 (Cth).
• Affidavit: Primarily used in court proceedings. Must be sworn before a qualified witness (usually a justice of the peace or lawyer), and carries penalties for perjury.
• Other statements: You might use written statements or emails for many business purposes, but these don’t have the same legal force unless provided under statutory declaration or affidavit.

Understanding which document to use in each scenario can save you compliance headaches and ensure your business processes hold up under scrutiny. If you’re unclear, speaking with a commercial law expert is a smart next step.

Best Practices for Managing Statutory Declarations in Your Business

Dealing with statutory declarations efficiently protects your business from risk and helps you meet legal obligations. Here are some tips for handling these documents with confidence:

• Have a clear internal policy: Spell out when employees or contractors may need to provide a statutory declaration, and when alternative evidence (like a receipt or certificate) is preferred.
• Use the latest Commonwealth form: Always download the most up-to-date version for each declaration.
• Keep accurate records: Store statutory declarations securely and ensure access is limited to those who need it.
• Train key staff: Anyone responsible for HR, compliance, or legal matters should know how statutory declarations work and how to check a witness’s credentials.
• Get professional help if in doubt: For sensitive issues, such as workplace investigations or regulatory disclosures, seek legal advice before relying on a statutory declaration.

Key Takeaways

• A Commonwealth statutory declaration is a binding statement of fact governed by federal law, and is often required for HR, administrative, or regulatory purposes in business.
• To be legally valid, the statutory declaration must be in the correct format, state true facts, and be witnessed by someone authorised under the law.
• Witnesses must be on the official approved list – different kinds of documents require different types of witnesses, so double-check before signing.
• Electronic witnessing by video call is now accepted in some cases for Commonwealth declarations, but make sure you follow current government rules.
• False or improperly witnessed declarations have serious legal consequences – and can delay business transactions or government approvals.
• Statutory declarations are just one part of your business’s document toolkit: ensure you also have up-to-date contracts, policies, and employment agreements in place.
• Managing statutory declarations well can help safeguard your business integrity, streamline compliance, and prevent disputes down the track.

If you’d like a consultation on how Commonwealth statutory declarations affect your business, or if you need help with contracts, workplace policies, or compliance, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.