Statutory Declarations in NSW
A statutory declaration is a written statement that you sign and formally declare to be true. In New South Wales it is made under the Oaths Act 1900 (NSW), must use the wording in the Eighth or Ninth Schedule of that Act, and must be signed in front of an authorised witness such as a Justice of the Peace, a notary public or an Australian legal practitioner holding a current practising certificate. The witness must see your face, confirm who you are, and complete a certificate on the document. Commonwealth statutory declarations are different: they are made under the Statutory Declarations Act 1959 (Cth) and, since 1 January 2024, can be completed in three ways, including a fully digital version through myGov using a Digital ID with no witness at all. Making a false statutory declaration is a criminal offence in both systems.
| Question | Short answer |
| What law applies in NSW? | Oaths Act 1900 (NSW), sections 21, 25, 25A and 34, and the Oaths Regulation 2024 (NSW) |
| What form do I use? | The Eighth Schedule or Ninth Schedule form under the Oaths Act 1900 (NSW) |
| Who can witness it? | A Justice of the Peace, notary public, Australian legal practitioner with a current practising certificate, or another person authorised under section 21 |
| Do I need identification? | Yes, unless the witness has known you for at least 12 months |
| Can it be witnessed by video? | Yes, by audio visual link under section 14G of the Electronic Transactions Act 2000 (NSW), if the conditions are met |
| Is a Commonwealth stat dec the same? | No. It has its own Act, its own witness list, and a digital myGov option with no witness |
| What if the contents are false? | Maximum 5 years imprisonment, or 7 years where a material benefit is involved (Oaths Act sections 25 and 25A) |
| Where can I get help near Hornsby? | Caspian Legal, 22-28 Edgeworth David Avenue, Hornsby NSW 2077, 02 7264 3200 |
If you have been asked to provide a statutory declaration for a court matter, an insurer, an employer, a government agency or a visa application, you can book a consultation with Caspian Legal before you sign it. Getting the wording right the first time is usually faster and cheaper than fixing it later.
Which jurisdiction applies to your statutory declaration?
This article applies to statutory declarations made in New South Wales and to Commonwealth statutory declarations made anywhere in Australia. It is general information only and is not legal advice.
The first thing to work out is which system your declaration belongs to. The two are not interchangeable, and using the wrong form is one of the most common reasons a declaration gets rejected.
| Feature | NSW statutory declaration | Commonwealth statutory declaration |
| Governing law | Oaths Act 1900 (NSW) | Statutory Declarations Act 1959 (Cth) |
| Typical use | State agencies, NSW courts and tribunals, Service NSW, NSW licensing, private and commercial matters | Visa and citizenship applications, superannuation, Centrelink, Medicare, Australian Taxation Office, other federal agencies |
| Required wording | Eighth Schedule or Ninth Schedule form | The approved Commonwealth form |
| Witness list | Section 21 of the Oaths Act 1900 (NSW) | Schedule 1 of the Statutory Declarations Regulations 2023 (Cth) |
| Witness-free digital option | Not available | Yes, through myGov with a Digital ID |
| Maximum penalty for a false declaration | 5 years, or 7 years for material benefit | 4 years |
If the organisation asking for the declaration has given you a form, use that form. If it has not, ask which one it wants before you sign anything.
What is a statutory declaration in plain English?
A statutory declaration is a written statement of facts that you formally declare to be true, usually in front of an authorised witness. It is used where an organisation needs a serious, signed account of something but there is no court proceeding on foot.
| Term | Plain English meaning |
| Declarant | The person making the statement. That is you |
| Authorised witness | The person permitted by law to take and receive your declaration in NSW |
| Eighth Schedule form | The shorter NSW wording, declaring the statement true under the Oaths Act 1900 |
| Ninth Schedule form | The alternative NSW wording, which includes your place of residence |
| Annexure | A document attached to and referred to in your declaration, such as a receipt or letter |
| Affidavit | A written statement sworn or affirmed for use in court proceedings |
| Justice of the Peace | A person appointed in NSW to witness documents and certify copies, often shortened to JP |
| Digital ID | An online identity check used to make a Commonwealth declaration through myGov without a witness |
Statutory declaration or affidavit: which one do you need?
People often use these words interchangeably. They are not the same document, and the wrong one can be refused by a registry.
| Point of difference | Statutory declaration | Affidavit |
| Main use | Out of court, for agencies, insurers, employers and commercial matters | Evidence in court or tribunal proceedings |
| How it is verified | Declared to be true | Sworn on oath or affirmed |
| Governing law in NSW | Oaths Act 1900 (NSW), Part 4 | Oaths Act 1900 (NSW), Part 5, plus the court rules that apply to the case |
| Format | Eighth or Ninth Schedule form | The form required by the relevant court rules |
| Consequence of a false statement | Offence under sections 25 and 25A of the Oaths Act 1900 | Perjury and related offences |
If you have a court date, ask before you prepare anything, because most courts want an affidavit rather than a declaration.
Who can witness a NSW statutory declaration?
Section 21 of the Oaths Act 1900 (NSW) sets out who may take and receive a statutory declaration in NSW. The list includes:
- a Justice of the Peace
- a notary public
- an Australian legal practitioner, because section 21(1) picks up practitioners who are authorised by section 27(1) of the Act, which in practice means a lawyer holding a current practising certificate
- the Registrar-General or a Deputy Registrar-General
- a commissioner of the court for taking affidavits
- a federal judicial officer
- another person authorised by law to administer an oath
Two practical points follow. First, a friend, a manager or a family member cannot witness a NSW statutory declaration simply because they are an adult. They must fall within section 21. Second, you cannot witness your own declaration, even if you are a JP or a solicitor.
It is an offence under section 21A of the Oaths Act 1900 (NSW) for a person to take and receive a statutory declaration without authority.
What identification do you need?
Section 34 of the Oaths Act 1900 (NSW) requires the authorised witness to do three things. The witness must see your face, must either know you or confirm your identity in accordance with the Oaths Regulation 2024 (NSW), and must certify on the declaration that these requirements have been met.
The certificate on the standard form is where the witness crosses out the options that do not apply. It records whether the witness saw your face, and whether the witness has known you for at least 12 months or instead relied on an identification document.
| Situation | What the witness does |
| The witness has known you for at least 12 months | Records that fact in the certificate. No identification document is needed |
| The witness does not know you | Sights an original or certified copy of an identification document and describes it in the certificate |
| Your face is covered | May ask you to remove the covering. An exemption applies where there is a special justification, such as a legitimate medical reason |
Under the Oaths Regulation 2024 (NSW), the witness generally cannot rely on an expired identification document, with a limited allowance for an Australian passport that has been expired for less than two years. Commonly accepted documents include an Australian driver licence, an Australian passport, a NSW Photo Card, a birth certificate and a citizenship certificate. If you are unsure whether your document will be accepted, ask the witness before your appointment.
How to make a NSW statutory declaration: step by step
- Confirm which declaration is required. Ask the organisation whether it wants a NSW or a Commonwealth statutory declaration, and whether it has its own form.
- Download the correct form. NSW forms are available through Service NSW and the NSW Department of Communities and Justice.
- Write the facts, not the argument. Set out what you know, in short numbered paragraphs, in your own words. Keep to facts you can personally verify.
- Separate what you know from what you were told. If something came from another person, say so rather than presenting it as your own knowledge.
- Prepare your annexures. Number each attachment, refer to it in the body of the declaration, and take the originals with you.
- Do not sign it yet. The declaration must be signed in the presence of the authorised witness.
- Book an authorised witness. Take photo identification unless the witness has known you for at least 12 months.
- Sign in front of the witness. The witness then completes the certificate under section 34 and signs.
- Keep a complete copy. Keep the signed original and a copy of every annexure for your own records before you hand it over.
Can a statutory declaration be witnessed over video in NSW?
Yes. Section 14G of the Electronic Transactions Act 2000 (NSW) permanently allows a signature that must be witnessed under NSW law to be witnessed by audio visual link. The witness must still be an authorised witness under the Oaths Act.
To be effective, the witness must:
- observe you signing the document in real time over the audio visual link
- confirm that the signature was witnessed, by signing a counterpart or countersigning a copy as soon as practicable
- be reasonably satisfied that the document signed by the witness is the same document, or a copy of the document, that the witness saw you sign
- endorse the document with a statement of the method used, for example that the document was signed in counterpart and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000
Remote witnessing is an alternative, not a replacement. A declaration can still be witnessed in person in the ordinary way. Some organisations have their own preferences about what they will accept, so check first if the declaration is going to an insurer, a lender or an overseas body.
Commonwealth statutory declarations: the three current methods
Changes to the Statutory Declarations Act 1959 (Cth) commenced on 1 January 2024. There are now three ways to make a Commonwealth statutory declaration, and the Attorney-General’s Department confirms each is equally valid.
| Method | How it works | Witness needed |
| Paper and ink | The approved form, signed in person in front of an approved witness | Yes |
| Electronic | The approved form, signed electronically and witnessed over a video link such as Zoom, Teams, Skype or FaceTime | Yes |
| Digital | Created and signed through myGov using a Digital ID verified to the required strength | No |
An approved witness for a Commonwealth declaration is a person prescribed in Schedule 1 of the Statutory Declarations Regulations 2023 (Cth), and that person must have a professional connection to Australia. The list is different from, and broader than, the NSW list. A witness cannot witness their own declaration.
A digital Commonwealth statutory declaration made through myGov carries a QR code, which allows the organisation receiving it to check that the document is genuine and unaltered.
What are the penalties for a false statutory declaration?
This is the part that clients most often underestimate. A statutory declaration is not a form. It is a criminal document.
| Provision | Conduct | Maximum penalty |
| Oaths Act 1900 (NSW), section 25 | Wilfully and corruptly making a declaration known to be untrue in a material particular | 5 years imprisonment |
| Oaths Act 1900 (NSW), section 25A | The same conduct, where a material benefit is derived or attempted | 7 years imprisonment |
| Statutory Declarations Act 1959 (Cth), section 11 | Intentionally making a false statement in a Commonwealth statutory declaration | 4 years imprisonment |
Whether a particular charge is dealt with in the Local Court or on indictment depends on the circumstances and on the election of the parties, and the maximum available in the Local Court is lower. If you are concerned that something you have already signed may be inaccurate, obtain legal advice before you take any further step, including before you attempt to correct it.
What documents should you bring to your appointment?
| Item | Why it matters |
| The draft declaration, unsigned | It must be signed in front of the witness |
| Photo identification | Needed unless the witness has known you for at least 12 months |
| Every annexure, in order | Each attachment must be identified and endorsed |
| The letter or email requesting the declaration | It usually specifies the form and the deadline |
| Any earlier version you have signed | Inconsistencies between versions can create problems later |
| Court, agency or insurer reference numbers | Helps make sure the declaration is directed to the right matter |
| A list of dates and events | Accuracy about timing is often the whole point of the declaration |
What not to do
- Do not sign the declaration before you are in front of the witness. A pre-signed document should not be witnessed.
- Do not guess at dates, amounts or events. Write what you actually know and say when you are uncertain.
- Do not copy wording from a template that does not match your facts.
- Do not state as fact something a third party told you without identifying the source.
- Do not alter a declaration after it has been witnessed. Any change should be made properly, or a fresh declaration prepared.
- Do not use a Commonwealth form for a NSW purpose, or the reverse, without checking.
- Do not ignore a deadline set by the agency, insurer or court. Time limits may apply and can be difficult to extend.
- Do not sign a declaration prepared by someone else without reading every line. You are responsible for its contents, not the person who drafted it.
Common mistakes and myths
| Myth or mistake | The position |
| Any adult can witness it | In NSW the witness must fall within section 21 of the Oaths Act 1900 |
| A stat dec and an affidavit are the same thing | They serve different purposes and have different rules |
| It is fine if the wording is close enough | The declaration should be in the form, or to the effect of the form, in the Eighth or Ninth Schedule |
| The witness checks whether my statement is true | The witness verifies your identity and observes the signing. The accuracy of the contents is entirely your responsibility |
| Small exaggerations will not matter | The offence provisions turn on material particulars, and organisations do compare declarations against other records |
| Once it is signed I can just cross something out | Alterations after witnessing create real risks. Get advice first |
| Everything I was told by someone else can go in | Anything not within your own knowledge should be identified as such |
When it is worth having a solicitor prepare or review your declaration
Many statutory declarations are straightforward and do not need a lawyer. Others are used as evidence, relied on by a decision maker, or later put to you in cross-examination. Legal review is usually worth considering where:
- the declaration will be used in a family law, criminal, migration, employment or insurance matter
- someone else has drafted it for you to sign
- the facts are contested, or another person has given a different account
- the declaration touches on money, property, admissions or your immigration status
- an agency has already rejected an earlier version
- you are being asked to declare something you are not certain about
What happens in a first consultation at Caspian Legal
A first consultation is practical. We read the request or the correspondence you have received, identify whether a NSW or Commonwealth declaration is required, work through the facts with you, and explain what can properly be included and what cannot. We then explain your options and the likely next steps, and we can prepare or review the wording before you sign. We can also witness a NSW statutory declaration where the requirements of the Oaths Act are met.
Caspian Legal assists clients in Hornsby and the surrounding Upper North Shore, including Waitara, Asquith, Normanhurst, Thornleigh, Wahroonga, Pennant Hills and Berowra. Many people in the area rely on Justice of the Peace desks at local libraries, council offices and service centres for routine documents. That is often perfectly appropriate. Where the declaration itself matters to the outcome of a dispute, a claim or an application, it is worth having the wording reviewed before it is signed rather than afterwards.
Frequently asked questions
Do I have to make a statutory declaration if someone asks for one?
No one can force you to make a declaration. However, an agency, insurer or employer may be entitled to decline your application or claim if you do not provide the information it has properly requested. If you are uncomfortable with what you are being asked to declare, get advice before you refuse and before you sign.
Can I write the statutory declaration myself?
Yes. There is no requirement for a lawyer to draft it. The requirements are that the correct form is used, the contents are true, and it is signed in front of an authorised witness where a witness is required.
Does it cost anything to have a statutory declaration witnessed?
Justices of the Peace in NSW volunteer their services and do not charge. A solicitor may charge for the time involved in preparing or reviewing a declaration, as distinct from simply witnessing it. Ask about costs when you book.
What if I make a mistake in my statutory declaration?
Do not alter a witnessed declaration yourself. Depending on the stage the matter has reached, the usual approach is to prepare a corrected declaration and explain the error. If the declaration has already been provided to a court, an agency or an insurer, obtain legal advice first.
Can a statutory declaration be used in court?
Courts generally require evidence by affidavit. A statutory declaration may still be relevant in some settings, and it can certainly be used against you if it turns out to be inconsistent with what you later say. Check the requirements for your particular matter.
Can I make a statutory declaration from overseas?
For a Commonwealth statutory declaration, yes. An approved witness with a professional connection to Australia can witness your signature over a video link from anywhere in the world, and the myGov digital option is also available if you have a Digital ID. For a NSW declaration, the requirements of the Oaths Act still apply and you should obtain advice about your particular circumstances.
Can my employer or my accountant witness my NSW statutory declaration?
Only if that person falls within section 21 of the Oaths Act 1900 (NSW). Being senior, professional or trusted is not enough on its own. The Commonwealth list of approved witnesses is broader, which is one reason the two are often confused.
How long does a statutory declaration remain valid?
The Oaths Act does not impose an expiry date. In practice, the organisation receiving it often does. Agencies frequently ask for a declaration made within a recent period, so check the request before you prepare it.
Speak with a solicitor before you sign
If you have been asked to provide a statutory declaration and the contents matter to your case, your claim or your application, we can help you get the wording right before it is signed.
Caspian Legal Pty Ltd
22-28 Edgeworth David Avenue, Hornsby NSW 2077
Phone: 02 7264 3200
Website: caspianlegal.com.au
We assist clients in Hornsby, Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and across the Upper North Shore. Appointments are available in person and by telephone or video. Contact Caspian Legal to discuss your options before you take the next step.
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