We thank Ingrid Olbrei for her contribution to this article.
- Introduction
- Oaths, affirmations, statutory declarations and affidavits – what does it all mean?
- Are you a Lawyer or a Legal Practitioner?
- Not a lawyer? Not a problem!
- What about the certification of documents?
- Final thoughts
Introduction
If you have a law degree, chances are you’ve had at least one friend, colleague, neighbour or client come up to you and exclaim, “oh great, you’re a lawyer – here, you can [certify, sign, witness] this document for me!”
As wonderful as it is to feel wanted (and let’s face it, based on the number of lawyer jokes out there, the legal profession is perhaps not the most beloved of all professions), have you ever stopped to wonder just exactly what it is that you can or can’t certify, sign or witness? Well, we have, and in case you have too, we’d like to share with you the below guide on who can sign what. For convenience, in addition to lawyers, we have also considered the authority of public servants and members of the Defence force to witness documents.
Oaths, affirmations, statutory declarations and affidavits – what does it all mean?
Oaths and affirmations are solemn promises to tell the truth; the main difference is that oaths are generally sworn by religious or spiritual persons before a deity, whereas affirmations are not made before a deity (and are therefore generally made by non-religious persons). That said, there is nothing to stop a religious or spiritual person from making an affirmation. If a person lies under an oath or affirmation, they can be charged with perjury.
An affidavit is a written statement that a person confirms to be true by swearing an oath or making an affirmation before a person who is authorised by law to witness the affidavit. Similarly, a statutory declaration is also a written statement that a person promises is true and must be witnessed by an authorised person. Although (unlike an affidavit) a statutory declaration is not made by an oath or affirmation, a false statement in a statutory declaration is a criminal offence and may result in a fine or imprisonment.
So, are you authorised to witness an affidavit or statutory declaration? Unsurprisingly, an authorised witness varies from one jurisdiction to another.
Are you a Lawyer or a Legal Practitioner?
Before we explore the authority of those in the legal profession to witness documents, it is important to note that all Australian jurisdictions (except for South Australia) distinguish between a ‘lawyer’ and a ‘legal practitioner’. Specifically:
- a ‘lawyer’ is a person who is admitted to the legal profession by being enrolled on the roll of a Supreme Court in Australia, and
- a ‘legal practitioner’ is a person who holds a current practising certificate.
In South Australia, on the other hand, a ‘legal practitioner’ (as defined under the Legal Practitioners Act 1981 (SA)) is a person enrolled on the roll of the Supreme Court, or an interstate legal practitioner who practises in the profession of the law in the State.
The table below provides an overview of whether or not a lawyer or legal practitioner may witness a statutory declaration or affidavit in a particular jurisdiction.
| Who is authorised to witness a... | | |||
| Statutory Declaration? | Affidavit? | Relevant legislation | ||
| ACT | Lawyer or legal practitioner | Legal practitioner | Statutory Declarations Regulation 2018 (Cth) Oaths and Affirmations Act 1984 (ACT) | |
| NSW | Legal practitioner | Legal practitioner | Oaths Act 1900 (NSW) | |
| QLD | Lawyer | Lawyer | Oaths Act 1867 (QLD) | |
| WA | Lawyer or legal practitioner | Experienced legal practitioner (being a legal practitioner who has been practising for at least 2 years) who has not participated in any way with the preparing of the affidavit | Oaths, Affidavits and Statutory Declarations Act 2005 (WA) | |
| SA | Anyone on the South Australian Supreme Court roll | Anyone on the South Australian Supreme Court roll | Oaths Act 1936 (SA) | |
| NT | An adult (≥ 18 years old), unless specified by another Act | Legal practitioner | Oaths, Affidavits and Declarations Act 2010 (NT) | |
| VIC | Legal practitioner | Legal practitioner | Oaths and Affirmations Act 2018 (VIC) | |
| TAS | Lawyer or legal practitioner | Legal practitioner / lawyer if appointed by a judicial authority | Oaths Act 2001 (TAS) | |
Not a lawyer? Not a problem!
What if you are no longer, or perhaps never were, a lawyer? Well, good news for you (if you happen to enjoy witnessing documents), each jurisdiction authorises additional persons to witness statutory declarations and affidavits – this includes (depending on the State or Territory) public servants, Defence force officers, police officers, members of parliament, consular officials and more.
For convenience, the tables below provide an overview of whether or not a public servant or Defence force officer may witness a statutory declaration or affidavit in a particular jurisdiction. Please note that, where a particular occupation is unable to act as an authorised witness, “N/A” has been stated.
Public Servants
| Who is authorised to witness a... | |||
| Statutory Declaration? | Affidavit? | Relevant legislation | |
| ACT | APS employee with five or more continuous years of service Employee of a ‘Commonwealth authority’ (ie, Commonwealth entity or Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act)) engaged on a permanent basis with 5 or more years of continuous service Senior executive of a Commonwealth authority Senior executive of a State or Territory SES employee of the Commonwealth | N/A | Statutory Declarations Regulation 2018 (Cth) |
| NSW | N/A | N/A | N/A |
| QLD | N/A | N/A | N/A |
| WA | Person employed under the Public Sector Management Act 1994 Part 3 | N/A | Oaths, Affidavits and Statutory Declarations Act 2005 (WA) |
| SA | N/A | N/A | N/A |
| NT | An adult (≥ 18 years old), unless specified by another Act | N/A | Oaths, Affidavits and Declarations Act 2010 (NT) |
| VIC | Person employed under the Public Administration Act 2004 (VIC) Part 3 with a prescribed classification | Person employed under the Public Administration Act 2004 (VIC) Part 3 with a prescribed classification | Oaths and Affirmations Act 2018 (VIC) |
| TAS | APS employee with five or more continuous years of service Employee of a Commonwealth authority engaged on a permanent basis with 5 or more years of continuous service Senior executive of a Commonwealth authority Senior executive of a State or Territory SES employee of the Commonwealth | N/A | Oaths Act 2001 (TAS) |
Defence Force Officers
| Who is authorised to witness a... | |||
| Statutory Declaration? | Affidavit? | Relevant legislation | |
| ACT | An officer A non-commissioned officer with five or more years of continuous service A warrant officer | N/A | Statutory Declarations Regulation 2018 (Cth) |
| NSW | N/A | N/A | N/A |
| QLD | N/A | N/A | N/A |
| WA | An officer A non-commissioned officer with five or more years of continuous service A warrant officer | N/A | Oaths, Affidavits and Statutory Declarations Act 2005 (WA) |
| SA | N/A | N/A | N/A |
| NT | An adult (≥ 18 years old), unless specified by another Act | If the person making the affidavit is a member of the ADF, then: Australian Naval Lieutenant or higher Australian Army Captain or higher Australian Air Force Flight Lieutenant or higher | Oaths, Affidavits and Declarations Act 2010 (NT) |
| VIC | N/A | N/A | N/A |
| TAS | An officer A non-commissioned officer with five or more years of continuous service | If appointed by a judicial authority | Oaths Act 2001 (TAS) |
What about the certification of documents?
There is no clear Commonwealth legislation stipulating who may certify documents. Generally, the agency requesting the certified documents will specify the occupations that are permitted to certify the documents, and (if the certified document is for a particular purpose) a law may specify who is able to certify the document. Commonwealth agencies, such as the Department of Home Affairs, accept most occupations that are listed as authorised witnesses under the Statutory Declaration Regulations 2018 (Cth).
Final thoughts
As noted previously, the authority of a person to witness a statutory declaration or affidavit (or to certify documents) is different in each jurisdiction. Accordingly, care should be taken to confirm your capacity as an authorised witness prior to signing any documents placed in front of you. Whilst we hope the above tables offer some useful assistance in the first instance, we note that the information is provided for guidance only, is current as at the date of this article and recommend that you consult the relevant legislation or seek legal advice if you are unsure as to the scope of your authority.
