Statutory Declarations Regulations 2023

A statutory declaration is a written statement of fact that the declarant signs in the presence of an authorised witness, attesting that the contents are true and correct. It is a substitute for an affidavit in many non-judicial settings and is used widely across Commonwealth, state and territory processes. The Regulations do not redefine the declaration itself; they prescribe the persons who can witness it, the identity verification requirements for electronic declarations, and the digital infrastructure that may be used.

“Prescribed person” is defined by reference to section 4 of the Act. The Regulations expand the category dramatically beyond the few classes listed in the Act itself. The prescribed persons include almost any licensed professional who deals with the public (medical practitioners, nurses, pharmacists, psychologists, architects, patent attorneys) plus a large number of public sector employees (APS employees with five years continuous service, members of Parliament, local government employees of five years standing, SES employees, police officers, bailiffs, and sheriffs). The list also includes persons authorised under state or territory law to witness statutory declarations (item 32 of Part 2 of Schedule 1). This creates a de facto national reciprocity: a person authorised in any state can witness a Commonwealth statutory declaration anywhere in Australia.

“Approved online platform” and “approved identity service” are defined in the Act. The Regulations give effect to those definitions by prescribing myGov as the only platform and myGovID as the only identity service. The digital identity framework is a Commonwealth government policy on digital identity verification, not set out in the Regulations. The Minister must consider consistency with this framework before making future regulations prescribing additional digital services. The framework itself is not publicly defined in the statutory instrument, creating a delegation of rule-making to an unwritten policy that may change without legislative scrutiny.

“Declarant” is defined in the Act and is used in the Regulations to refer to the person making the declaration. The Regulations require identity verification using at least two documents from a prescribed list. That list is limited to government-issued documents, which may exclude individuals who have difficulty obtaining such documents (e.g., recent migrants lacking a driver’s licence or passport). The requirement that the declaration include information to verify that it was completed by the declarant and not altered (regulation 8(e)) is technology-neutral; the note suggests a QR code could satisfy this.

The Regulations affect three main groups: declarants, witnesses, and online platform operators. Declarants are individuals who need to make a statutory declaration for a Commonwealth purpose, such as for Centrelink, the Australian Taxation Office, the Australian Electoral Commission, or other federal agencies. For paper declarations, the effect is minimal: the list of authorised witnesses is broad and largely unchanged from 2018. For electronic declarations made via myGov, declarants must have a myGovID account and two of the prescribed identity documents (which are likely already linked to their myGov account). The Regulations create a two-tier system: those who can use the digital method (requiring a myGovID and two documents) and those who must use the paper method (which does not require government-issued identity documents of that specificity, though the Act imposes its own requirements). This may disproportionately affect people without standard identity documents or reliable internet access.

Witnesses are the persons before whom declarations may be made. The list of authorised witnesses is extensive but imposes conditions on some categories. For example, an accountant must be a member of a listed professional body, not merely registered with the Tax Practitioners Board. Bank officers, building society officers, credit union officers, and finance company officers must have five or more continuous years of service. APS employees and permanent employees of Commonwealth authorities, states, territories, or local government must have five years of continuous service (unless they are SES employees, who have no service requirement). This creates a barrier: a junior bank teller with four years’ service cannot witness a declaration. The five-year threshold is arbitrary and may exclude many otherwise trustworthy employees. It also adds a verification burden on the witness (and potentially on the declarant) to show compliance. The witness must be physically present when the declaration is signed (no remote witnessing is provided for; the online platform facilitates completion but does not replace the in-person requirement, which remains under the Act). Witnesses also have no obligation to verify the truth of the contents, only the identity of the declarant.

Online platform operators are directly affected. Currently only myGov is prescribed. To be prescribed in future, a platform must meet the Minister’s satisfaction regarding the digital identity framework. Platforms must report annually on declarations started but not completed. This reporting requirement is a compliance cost that may deter potential entrants, particularly if the framework is costly to comply with. The market for digital witnessing is thus government-monopoly: myGov and myGovID are the only approved services, eliminating private sector competition.

The Regulations impose several duties. For a declarant using the online platform, the duty is to have their identity verified using at least two documents listed in regulation 7(2). These documents must be issued by a Commonwealth, state or territory government. There is no duty to present the original documents to the witness; the verification is done via the approved identity service (myGovID). The Regulations do not specify what happens if the two documents are not available; the Act may still permit paper declarations. The online declaration also must contain the information prescribed in regulation 8, including the date and time, platform name, identity verification statement, and a verification that the declaration was completed by the declarant and not altered. The declarant has a right to use the online platform if they have a myGovID and the necessary identity documents, but there is no right to use any other platform.

For the witness, the duty is to confirm the identity of the declarant via the approved identity service if the declaration is made online. In a paper declaration, the witness must follow the Act’s own requirements (generally, the witness must see the declarant sign and sign themselves). The Regulations do not impose additional duties on witnesses for paper declarations. The list of authorised witnesses creates a right for those persons to witness declarations, but also a burden: the witness must be satisfied that the declarant is who they say they are, and for digital declarations this is outsourced to the identity service. The Regulations do not require the witness to verify the contents of the declaration; that is the declarant’s responsibility.

For the Minister, there are duties before prescribing new digital services. Under regulation 12, the Minister must consider whether the regulation would be consistent with the digital identity framework. Under regulation 13, the Minister must be satisfied that a proposed platform will comply with relevant standards in that framework, and that a proposed identity service is accredited in accordance with that framework. These duties are procedural and give the Minister broad discretion, as the framework itself is not defined in the Regulations. There is no requirement for public consultation or independent review.

For online platforms, the duty under regulation 11 is to report annually the number of declarations started but not completed. This metric is unusual; it creates a record of user drop-off. There is no duty to report the number completed or the ratio, but that information may be inferred. The requirement is for platforms prescribed under section 9A(2); currently only myGov is prescribed.

The Regulations themselves create no penalties. The Statutory Declarations Act 1959 provides that knowingly making a false declaration is an offence (section 11), punishable by imprisonment (currently up to four years). The Regulations do not alter that penalty. The identity verification conditions (regulation 7) are conditions for the prescribed form of an electronic declaration. If a declarant does not comply with those conditions, the declaration may not be a valid statutory declaration for the purposes of the Act. That could render the statement inadmissible or ineffective, but the Regulations do not impose a separate penalty for non-compliance. The practical enforcement risk is that a declaration made without proper identity verification or lacking the prescribed information will be rejected by the receiving agency, causing delay and cost to the declarant.

For witnesses, there is no penalty under the Regulations for witnessing a declaration if the witness is not a prescribed person, but the declaration itself may be invalid under the Act. The Act provides that a statutory declaration must be made before a prescribed person (section 9). If the witness is not prescribed, the document may not be a statutory declaration at all, and the declarant could face legal consequences if they relied on it as such. The Regulations thus indirectly enforce the witness categories.

For online platforms, failure to report the number of started but not completed declarations may have consequences under the Act. The Minister may rely on the annual report to monitor usage. The Regulations do not specify a penalty for non-reporting, but the Act’s section 9B(3) requires the report to include the matters prescribed, and the Minister may take it into account when deciding future prescriptions. Non-compliance could lead to the platform losing its prescribed status, though the Regulations do not specify the mechanism.

The Regulations sit under the Statutory Declarations Act 1959, which is a Commonwealth law. They prescribe matters that the Act leaves to regulations, such as the definition of “prescribed person” (section 4), the identity verification condition (section 9A(1)(b)(ii)), the information to be included (section 9A(1)(c)(ii)), and the annual report content (section 9B(3)(d)). The Regulations do not affect state and territory laws that allow persons to witness declarations for state purposes; indeed, item 32 of Schedule 1 Part 2 expressly recognises persons authorised under the law of the state or territory where the declaration is made. This creates a cooperative federalism provision: a person authorised in New South Wales can witness a Commonwealth declaration made in that state, and presumably also a declaration made in another state if the witness is physically present there, but the item refers to “the law of the State or Territory in which the declaration is made”. This may cause confusion if a witness travels interstate.

The identity documents list (regulation 7) cross-references several other Acts: the National Health Act 1953 (Medicare card), the Migration Act 1958 (visa), the Australian Passports Act 2005 (convention travel document), the Australian Citizenship Act 2007 and its 1948 predecessor (citizenship certificate). This ensures that the documents are defined by reference to their source legislation and any amendments to those Acts automatically affect the Regulations.

The occupations list in Schedule 1 Part 1 relies on the person being “currently licensed or registered to practise in Australia” under a federal or state law. There is no need to cross-reference each occupational licensing statute; the regulation defers to existing licensing regimes. This avoids the Regulations becoming outdated when licensing changes. However, it also means that the validity of the witness depends on the accuracy of their licence with the relevant regulatory body, which the declarant may not be able to verify.

The Regulations also interact with the Public Governance, Performance and Accountability Act 2013, which defines “Commonwealth authority” and “Commonwealth company”. Many categories of witnesses (e.g., APS employees, employees of Commonwealth authorities, SES employees) rely on these definitions. The digital identity framework is a non-statutory policy, which means its interaction is opaque. The Regulations effectively incorporate by reference an external, changeable policy document, which may raise concerns about parliamentary oversight.

These Regulations replace the Statutory Declarations Regulations 2018 in full (Schedule 2, item 1). The 2018 Regulations were themselves a remake of earlier instruments. The 2023 Regulations were made on 7 December 2023 and commenced on 1 January 2024, the same day as the Statutory Declarations Amendment Act 2023. The major change from the 2018 Regulations is the introduction of provisions for digital execution of statutory declarations, reflecting amendments to the Act inserted by the 2023 Amendment Act. Specifically, the 2023 Regulations include for the first time: prescription of an approved online platform (myGov) and an approved identity service (myGovID); the requirement to use at least two identity documents; the prescribed information for electronic declarations; the annual reporting requirement for platforms; and the Ministerial prerequisites for prescribing additional digital services. The list of prescribed persons is substantially similar to the 2018 list. The 2023 Regulations remove some previously listed occupations (e.g., “authorised ASIC officer” is no longer separately listed, though APS employees may cover it). The transitional provision preserves actions taken under the 2018 Regulations, so existing statutory declarations witnessed by persons who were authorised under the old list remain valid.

The source text (the Regulations themselves) contains no references to any litigation. No cases are cited or mentioned. The Regulations are a purely delegated legislative instrument; there is no litigation history within the instrument. It is possible that cases have been decided under the Statutory Declarations Act 1959 or the previous regulations, but the user’s instruction is to “only name cases the source names”. Since the source names no cases, none should be discussed. Future litigation may arise over the validity of electronic statutory declarations if a declarant challenges the identity verification process or if a witness is later found not to be authorised, but that is speculative.

Several features of the Regulations could catch practitioners and declarants unaware. First, the identity verification requirement for digital declarations uses “at least 2 documents” from the closed list. A declarant who has only one of those documents (e.g., only a driver’s licence and no passport, Medicare card or birth certificate) cannot use the digital method. The list does not include other common government-issued documents such as a firearms licence, proof of age card issued by a state, or an ImmiCard (though the note says an ImmiCard is covered by item (viii) as a document evidencing immigration status). The Regulation does not lower the number of documents for any class of person. This may be especially burdensome for young people, elderly people without a passport, or recent arrivals who hold only a visa booklet. The paper method does not have the same requirement, so the digital route is not a universal alternative.

Second, the five-year continuous service requirement for many witness categories (bank officers, building society officers, credit union officers, finance company officers, APS employees below SES level, permanent state and local government employees, and Australia Post employees) is an arbitrary threshold. It excludes employees with four years of service who may otherwise be trustworthy. It also requires the witness to prove their length of service if challenged, which may be difficult in practice. A bank teller with five years’ service in branch can witness a declaration; a branch manager with four years’ service (promoted quickly) cannot. This creates perverse incentives for declarants to seek out a different category of witness.

Third, the list of accountants is limited to those who are fellows of the National Tax Accountants’ Association or members of one of four specified bodies (Chartered Accountants, the Association of Taxation and Management Accountants, CPA Australia, the Institute of Public Accountants). An accountant who is registered with the Tax Practitioners Board but not a member of these bodies cannot witness a declaration. This is a narrow selection that excludes many practising accountants.

Fourth, the approved online platform (myGov) and identity service (myGovID) are prescribed by name. The Regulations do not provide a mechanism for a private company to become an approved platform other than through a future regulation. The Minister is not required to consider competition or cost to users. The myGov service is operated by the government, so there is no private sector involvement. The digital identity framework, which the Minister must consider, may change by administrative action without legislative scrutiny.

Fifth, the annual report requirement for platforms includes only “the number of statutory declarations started, but not completed”. This is an unusual metric that gives a partial picture of usage. It does not require reporting the number completed, the average time to complete, or any breakdown by type of declaration. It may be intended to monitor drop-offs, but without context it is not very informative.

Sixth, the transitional provision (regulation 14) preserves actions taken under the 2018 Regulations, but does not explicitly preserve the status of persons who were authorised under the 2018 list but are no longer included. However, a comparison of the lists shows no removal of entire categories, only adjustments. Anyone who was authorised under the 2018 Regulations continues to be authorised under the 2023 list, unless they do not meet the new criteria (e.g., the service thresholds). The Regulations should be checked for specific categories.

For a declarant making a paper statutory declaration, compliance is straightforward: find a witness who is a prescribed person under Schedule 1. Check that the witness falls into one of the listed occupations or categories. For categories requiring five years continuous service (items 6, 7, 12, 17, 24(b), 30, 31), ask the witness if they meet the service requirement; the declarant does not need to verify independently, but if the witness is not genuinely qualified, the declaration may be invalid. The witness should sign the declaration and include their qualification (e.g., “Justice of the Peace” or “Registered Nurse”). The declarant should complete the declaration in the witness’s presence.

For an electronic statutory declaration using myGov and myGovID, the declarant must have a myGov account linked to myGovID. They must verify their identity using at least two documents from the list: driver’s licence, current passport, birth certificate, Medicare card, citizenship certificate, visa, convention travel document, or an ImmiCard (or other evidence of immigration status). The myGovID system will prompt the declarant to load these. The declarant then completes the declaration on the myGov platform, which will embed the prescribed information: date and time, platform name, identity verification statement, a statement that the declaration is made under section 9A of the Act, and a verification code or QR code to confirm completion and non-alteration. The witness must also be a prescribed person; they will be part of the online process through myGovID. The declarant should ensure that the witness is present (the Regulations do not specify whether the witness must be physically co-located; the Act requires the declaration to be made “before” the witness, which is generally interpreted as physical presence). After completion, the declarant should retain a copy of the declaration including the verification code.

For an online platform operator seeking to be prescribed, compliance is more complex. The operator must be approved by the Minister, who must consider consistency with the digital identity framework and be satisfied that the platform complies with relevant standards and that the identity service is accredited. This requires engaging with the government’s digital identity framework, which is not defined in the Regulations. Operators should monitor changes to that framework. They must also comply with the annual reporting requirement under regulation 11, reporting the number of declarations started but not completed during the financial year. Non-compliance may risk losing approval.

For practitioners advising clients, the key step is to confirm that the intended witness is a prescribed person under the current Regulations. Use Schedule 1. Be aware that some categories require the witness to be licensed or registered (Part 1) or to have a specified number of years of service (Part 2). For digital declarations, ensure the client has a myGovID and the requisite identity documents; if not, advise using the traditional paper method. The paper method remains valid and does not require two identity documents (the witness still must verify identity under the Act, but that may be satisfied by the witness’s own knowledge or by seeing a single document). The Regulations do not supersede the Act’s existing rules for paper declarations.