Practical, source‑grounded step list for practitioners, registry staff, corporate officers and members of the public who must make or receive affidavits or statutory declarations under the Act.
A. Before taking or accepting a statutory declaration
- Use the prescribed form: ensure the statutory declaration is made in Form 1 in Schedule 1 (s 14(2)). Confirm the Schedule is the current version (note Schedule 1 was amended in 2018). If producing electronic copies, ensure the content matches Form 1 exactly.
- Verify the person taking the declaration: the declaration may be taken by "any justice or other person by law authorised to administer an oath or a commissioner for declarations" (s 14(1)-(3)). If relying on a commissioner for declarations, check that the person is an appointee under s 12 or otherwise qualifies under the Commonwealth regulations referenced in s 12(2)(a). Look for Gazette publication of the appointment or declaration (s 12(3)).
- Commissioner signatory practice: ensure that any commissioner signing adds "commissioner for declarations" and their title if qualified as a commissioner under s 12(2) (s 13).
B. Before an appointed person takes evidence or an affidavit for a foreign judicial authority
- Confirm appointment: obtain written evidence that a judicial authority outside the State has appointed the appointed person to take or receive evidence in the State (s 9(1)).
- Obtain Attorney‑General consent when needed: if the appointing judicial authority is not a court or judge, obtain written consent of the Attorney‑General before taking or receiving evidence or administering oaths (s 9(3)). Do not rely on implied or retrospective consent.
- Obtain consular agent certificate: the appointed person must have a written certificate from a consular agent of the foreign place confirming the affidavit is required for a matter pending before that judicial authority before taking an affidavit (s 10(1)). Record and retain a copy of this certificate. The jurat must state the name and official designation of the consular agent (s 10(2)).
- Preserve documentary proof: because s 11(2) disallows evidence to the contrary in perjury prosecutions, keep robust documentary records (appointment, consular certificate, AG consent) so that administrative conduct can be shown if needed.
C. For persons not competent to take an oath
- Follow s 7 procedure: where the justice or appointed person is satisfied the person is not competent to take an oath, the affidavit may be allowed if the official tells the person it is important to tell the truth and the person declares the affidavit does not contain lies (s 7(1)(a)(i)-(ii)). If the person plainly does not understand truth/lie distinctions or cannot respond rationally, do not allow the affidavit (s 7(2)(b)(i)-(ii)).
- Document the official’s assessment: record why the official concluded the person could or could not be allowed to make an affidavit instead of an oath, because s 7(3) presumes competence unless contrary is established.
D. When relying on foreign justices, diplomatic or consular acts
- Check signature and authority: s 5(2) and s 6(2) treat the signature of an out‑of‑State justice or a diplomatic or consular agent as evidence of their status and the act performed. Nevertheless, some recipients require further authentication (for instance, domestic registries or commercial counterparties); where that is the case, ensure any additional formalities (Apostille, legalisation) required by the receiving body are complied with, noting that the Act’s presumption does not change other institutions’ documentary requirements (s 7(4) preserves other admissibility rules). The Act’s presumption is evidence of status, not a substitute for other external formalities.
E. Administrative compliance for appointing or maintaining commissioners
- Ministerial appointments and Gazette notices: if you are seeking to be appointed as a commissioner or to have an occupational group declared, apply to the Minister and be aware that the Minister is to publish appointments and declarations in the Gazette (s 12(1)-(3)). Keep copies of Gazette notices to prove status.
- Title practice: commissioners must add the words "commissioner for declarations" and their qualifying title after signing (s 13). Ensure stationery and signature blocks accommodate this.
F. Affirmations and oath wording
- Use the Act’s wording where appropriate: an affirmation is to state that the person solemnly and sincerely declares and affirms the matter to be affirmed (s 16(3)); an oath may be taken by saying "I swear" and an affirmation by saying "I affirm" in reply to tendered words (s 16(4)-(5)). Use these words if there is any doubt about sufficiency.
G. Records and evidence retention
- Retain copies of appointments, consular certificates and AG consent: because the Act prescribes documentary requirements and gives particular evidentiary effects (s 10, s 9(3), s 11), retain the originals and certified copies in case of later challenge or perjury proceeding.
- Maintain a chain of custody or record for documents and the identity of the official who took the declaration or affidavit, especially since s 15 prevents invalidation simply because the person later ceased to be a commissioner (s 15) , still preserve proof of status at the time of signing.
H. Check commencement and regulation status
- Confirm commencement: the Act commences on proclamation (s 2). Do not assume the Act is in force absent checking the proclamation date.
- Check for regulations and Commonwealth prescriptions: consult any regulations made under s 17 and the Statutory Declarations Regulations 2018 (Commonwealth) referenced in s 12(2)(a) to ensure compliance with any delegated instrument.
I. Practical risk management
- Anticipate delay from consular or AG processes: where foreign judicial proceedings require prompt evidence, build time into schedules for consular certificates and Attorney‑General consent. The Act contains no statutory time limits for these steps.
- If using foreign notarial or consular acts, confirm with the receiving authority whether additional authentication beyond the Act’s evidentiary presumption is required.
Following these steps will align practice with the Act’s formalities: use the prescribed form (s 14(2)), verify authority and obtain required consents and certificates (s 9(3); s 10(1)), and retain documentary proof to manage evidentiary and perjury‑related risk (s 11).