Who’s Allowed? A Guide to Signing Statutory Declarations

Contents

A statutory declaration is a formal legal document used to declare that something is true to the best of the declarant’s knowledge. It is commonly used for a range of situations—from verifying identity and confirming the details of a business arrangement to affirming certain facts for government and legal processes. One of the most common questions that arise is who can sign a stat dec and, more importantly, who is qualified to witness that signature. In this article, we’ll take a deep dive into the eligibility criteria, state and Commonwealth requirements, the complexities of using a spouse as a witness, and best practices to ensure your statutory declaration is legally secure.

Understanding Statutory Declarations

A statutory declaration is a written statement declared to be true in the presence of an authorised witness. It is often used in situations where a sworn affidavit is not required, but where a formal declaration of fact is still needed. Although it is not a court document, a statutory declaration holds legal significance, and any false declaration made under it may result in serious legal consequences.

Statutory declarations are used in many contexts including:

Verifying personal details or identity
Supporting applications for licenses or government services
Confirming contractual or financial details in business transactions
Substantiating claims in legal disputes

Given its widespread use, ensuring that a statutory declaration is properly witnessed is essential. Incorrect witnessing could lead to the declaration being deemed invalid, which in turn might result in delays or legal complications.

Eligibility to Witness a Statutory Declaration

Before a witness signs a statutory declaration, they must meet certain eligibility criteria designed to preserve the document’s integrity and prevent any potential conflicts of interest. Below, we outline the key requirements:

General Requirements

In Australia, the person who witnesses a statutory declaration should:

Be at least 18 years of age
Be of sound mental capacity
Have taken reasonable steps to verify the identity of the person signing the declaration
Not be a party to, or benefit from, the contents of the declaration (especially relevant for trust deeds or declarations involving a conflict of interest)

These requirements help to ensure that the witness is impartial and reliable. For a broader perspective on legal requirements and legal documentation, you may find our article on What Is a Contract insightful.

Specific Requirements for Commonwealth and State Statutory Declarations

Although the general eligibility criteria remain the same across Australia, the specific requirements for statutory declarations can vary between the Commonwealth and individual states. This is especially important if the statutory declaration is being used for official government purposes or in legal proceedings.

Commonwealth Statutory Declarations

Under Commonwealth law, statutory declarations must be witnessed by an approved person. When a statutory declaration is signed in person, the witness has the responsibility of ensuring that the declarant understands what they are signing and that the signing process complies with the relevant statutory requirements.

Approved witnesses may include various professionals and officials who hold positions of trust. For example, authorised witnesses for Commonwealth statutory declarations often include:

Legal practitioners and enrolled solicitors
Justices of the Peace (JPs)
Notaries public
Certain government officials as outlined in the statutory regulations

For more detailed information on the guidelines established at the federal level, the Attorney-General’s Department is an excellent resource.

State-Specific Regulations

Each state and territory in Australia has its own set of regulations governing the witnessing of statutory declarations, which must be observed in addition to the general Commonwealth requirements. Here is a brief overview of the requirements in a few key jurisdictions:

Victoria

In Victoria, statutory declarations must be witnessed by individuals authorised under the Oaths and Affirmations Act 2018. This list includes professionals such as:

Architects, conveyancers, and legal practitioners
Medical and dental practitioners
Other recognised professionals who are authorised under state legislation

Queensland

Queensland has its own system for authorising witnesses. For electronically signed statutory declarations, authorised witnesses include:

Australian legal practitioners and government legal officers
Approved Justices of the Peace (JPs) and Commissioners for Declarations
Notaries public and certain employees of the Public Trustee of Queensland

Additional information on Queensland’s witnessing requirements can be found on official state websites such as Queensland Government.

South Australia

In South Australia, the process generally involves verifying the identity of the declarant with a photo ID and ensuring that the witness is authorised under state law. Typical authorised witnesses include Justices of the Peace and police officers. More detailed guidelines can be reviewed on the South Australian Government website.

Can a Spouse Witness a Statutory Declaration?

A common question among individuals preparing to sign a statutory declaration is whether a spouse or partner is eligible to act as a witness. Technically speaking, a spouse or partner who meets the general requirements—being over 18 and of sound mind—can witness a statutory declaration. However, best practice guidelines strongly advise against it.

Using a spouse as a witness can raise concerns of potential bias or a conflict of interest. In legal disputes where the validity of a statutory declaration is questioned, having a spouse as the sole witness may negatively impact the credibility of the document. To maintain the enforceability of the declaration, it is highly recommended that you use an independent third party who has no personal or financial stake in the matter covered by the declaration.

Legal Implications and Best Practices

Ensuring that your statutory declaration is properly witnessed is crucial to its legal validity. Here are some best practices and legal considerations to keep in mind:

Verify the witness’s eligibility: Always confirm that the chosen witness meets the statutory requirements (i.e., over 18, competent, and not a beneficiary or party to the declaration).
Follow the prescribed procedure: Depending on whether your statutory declaration is Commonwealth or state-specific, make sure the signing process adheres to all applicable regulations.
Use an independent witness: To avoid potential disputes, refrain from using close family members such as spouses, even though they are technically eligible.
Document the witnessing process: In some cases, particularly with electronic witnessing, you should have verifiable records (such as video or audio recordings) to confirm that proper procedures have been followed.
Seek professional advice when in doubt: For complex situations or high-stakes declarations, consulting a legal professional can provide clarity and security.

For additional insights on ensuring the legal binding nature of documents, our article on What Makes a Contract Legally Binding offers useful information that may help you understand similar enforcement principles.

Steps to Ensure Your Statutory Declaration Is Legally Valid

Following a clear set of steps can help ensure that your statutory declaration is executed properly and will stand up to legal scrutiny. Consider the following step-by-step guide:

Confirm the Identity of the Declarant: Before the declaration is signed, the witness should verify the identity of the person making the declaration using a government-issued photo ID.
Review the Completed Document: Ensure that all parts of the statutory declaration are correctly filled out and that the declarant has read and understood its contents.
Choose an Authorised Witness: Select a witness who is independent and meets the authorised requirements under Commonwealth law or your state’s specific legislation.
Observe the Signing: The witness must personally observe the declarant sign the document and then sign and date the declaration as evidence of the witnessing.
Follow Electronic Witnessing Protocols (if applicable): If the declaration is signed electronically, confirm that the process includes an audio-visual link or other verification method to ensure the witness can see the signing process in real time.

This procedural approach not only enhances the legal validity of the document but also minimizes the risk of disputes arising from an improperly witnessed statutory declaration.

Common Questions About Statutory Declarations

Who Can Sign (Witness) a Statutory Declaration?

Generally, anyone who is over 18, of sound mind, and uninvolved in the declaration’s subject matter can act as a witness. However, when the statutory declaration is used in a legal or official capacity, it is imperative that the witness is an independent and authorised person to avoid any potential challenges to the document’s validity.

Is It Acceptable to Use a Spouse or Partner as the Witness?

Although a spouse or partner might meet the basic legal criteria, best practice recommends using an independent witness. This is because reliance on a close familial relationship could be perceived as biased, thereby undermining the credibility of the document should it ever be scrutinised in court.

What Happens If the Witness Is Not Eligible?

If a statutory declaration is witnessed by someone who does not meet the eligibility criteria, the declaration may be ruled invalid. In such cases, the document may be subject to legal challenges, and any actions taken based on its contents might be compromised.

Where to Find More Information

For business owners and individuals looking to understand more about the legal framework surrounding statutory declarations and other legal documents, additional information is readily available. Here are some useful resources:

Read our comprehensive guide on What Is a Contract to better understand the importance of legally binding agreements.
Our article on What Makes a Contract Legally Binding offers insight into the enforceability of legal documents, including statutory declarations.
For small business owners, learning about the nuances of legal business structures is key. Check out Operating as a Sole Trader for guidance on setting up your business appropriately.
If you’re looking to formally establish your business, our step-by-step article on Register a Business in Australia provides valuable details on the process.
For those considering working from home, our guide How to Start a Business from Home covers many essential legal considerations.

In addition, the Attorney-General’s Department is an excellent source of authoritative information on statutory declarations and related matters.

Key Takeaways

The witness to a statutory declaration must be over 18, of sound mind, and ideally independent of the declarant.
Commonwealth and state-specific requirements dictate that certain statutory declarations must be witnessed by authorised personnel, such as legal practitioners or Justices of the Peace.
While a spouse or partner can technically witness a statutory declaration, using an independent witness is considered best practice to avoid any potential conflicts of interest.
Following a strict process—including verifying identity, correctly completing the document, and having the witness observe the signing—ensures that your statutory declaration is legally valid.
Staying informed about both Commonwealth and state-specific regulations is key to avoiding disputes over the enforceability of the declaration.

If you would like a consultation on witnessing statutory declarations, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

Alex Solo

Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.

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