COVID-19: Financial Advisers and Accountants can now witness NSW statutory declarations

As reported in our earlier article, the NSW Government recently made new regulations in response to the COVID-19 pandemic to make it easier for documents to be witnessed and attested. As discussed in that article, the witnessing and attestation of documents can now take place by audio visual link.

 

The new regulations also expand the categories of people who are able to take statutory declarations as authorised witnesses and bring the NSW position in line with federal legislation. This is positive news for Financial Advisers and Accountants, who until now had not been able to witness NSW statutory declarations made by their clients.

Only Commonwealth statutory declarations were previously able to be taken by Financial Advisers, Accountants and other persons on the list of approved witnesses (viewable here). However, as set out below, Commonwealth statutory declarations are generally not appropriate for matters relating to the State or laws of NSW.

Importantly, a Financial Adviser must be "licenced or registered" in order to take a NSW or Commonwealth statutory declaration. An accountant must be either:


  • a fellow of the National Tax Accountants' Association; or
  • a member of any of the following:

    • Chartered Accountants Australian and New Zealand;
    • the Association of Taxation and Management Accountants;
    • CPA Australia; or
    • the Institute of Public Accountants.

What is a statutory declaration?

A statutory declaration is a written statement of facts that a person declares is true. Anyone can make a statutory declaration (including minors and retirees) as long as it is witnessed by a person who is authorised to take statutory declarations.

What is the difference between a Commonwealth and NSW statutory declaration?

Generally speaking, a NSW statutory declaration should relate to NSW matters.

Some of the matters that a NSW statutory declaration might relate to include:


  • various financial matters and dealings with financial institutions
  • dealings with real property
  • land tax or stamp duty
  • if an original trust deed has been lost (and a person connected with the trust wishes to reaffirm the terms and existence of the trust)
  • proving identity or a change of name.
On the other hand, a Commonwealth statutory declaration should be completed if the matter relates to the Commonwealth or its laws.

As a further complication, Commonwealth and NSW statutory declarations use different forms. The prescribed form for a Commonwealth statutory declaration can be downloaded here. And the NSW forms can be downloaded here.

If you are uncertain about which form to use, it is prudent to speak with a lawyer or Justice of the Peace who is familiar with these differences.

How do I witness a NSW statutory declaration?

The NSW Justice of the Peace Handbook is a useful resource for anyone witnessing a statutory declaration. We have outlined some key points from the handbook below1 along with some practical tips for witnessing NSW statutory declarations by audio visual link. The new regulations do not allow Commonwealth statutory declarations to be witnessed by using video conferencing technology.

1.  Confirm that the document is a statutory declaration

You can identify if a document is a statutory declaration because it will contain:

  • the words 'statutory declaration'.
  • the name of the state, territory or Commonwealth law under which it is made.
Commonwealth statutory declarations are made under the Statutory Declarations Act 1959 (Cth) and NSW declarations are made under the Oaths Act 1900 (NSW).

When signing and witnessing a statutory declaration, it is good practice to read the document prior to signing.

If you are witnessing a NSW statutory declaration under the new regulations, you should take appropriate steps to ensure that the document you sign to confirm the signature of the declarant is the same as the document signed by the declarant.

2. See the declarant's face and confirm their identity

You must see the face of the person making the statutory declaration.

If a person is wearing a face covering, you should politely ask the person to remove as much of the face covering as will allow you to view the person's face. This includes sunglasses that cover the eyes or a hat that covers the forehead.

Importantly, you do not have any authority to make a person remove a face covering. If the person refuses to remove his or her face covering, you must decline to witness the statutory declaration, unless you are satisfied the person has a ‘legitimate medical reason’ for not removing the face covering.

For guidance on what amounts to a 'legitimate medical reason' see Appendix D of the NSW Justice of the Peace Handbook.

If you are witnessing a NSW statutory declaration by video conferencing technology and cannot clearly see the declarant's face, you should ask her or him to adjust the lighting or angle of the video to improve the picture.

Once you see the declarant's face, you will then need to confirm their identity. You will need to ensure that their identity matches the name that is written at the start of the declaration.

This can be done in one of two ways:


  • you have known the person for a period of at least 12 months; or
  • you have sighted an approved identification document and you have confirmed the person’s identity based on that document.
Note, if you are witnessing a statutory declaration via audio visual link, you should ask the declarant to hold an approved identification document in front of their camera. It is also good practice to ask the declarant to send you a scanned copy of the identification document to review prior to signing conference.

If you cannot view an approved identification document clearly or are unable to confirm the person’s identity, you should decline to witness the statutory declaration.

3. Look for any blank spaces or alterations on the statutory declaration

You must closely review the statutory declaration for blank spaces or alterations. If the statutory declaration contains any alteration or deletion, you should:

  • write your initials next to each alteration/deletion; and
  • re-write and sign or initial the words that have been inserted, in the margin.
Any blank space at the end of a statutory declaration should be crossed out and if you are taking a NSW statutory declaration in accordance with the new regulations, any blank space should be crossed out on both documents (i.e. the document signed by the declarant and the document signed by you to confirm the declarants signature).

4. Check the declarant understands

You should ensure that the declarant understands the purpose, effect and contents of the statutory declaration. This can be done by asking open-ended questions such as:

  • Why do you need to complete this document?
  • What is this document about?
If the declarant is unfamiliar with the contents of the statutory declaration, you should give them an opportunity to read the document. You should then ask the above questions again. If the declarant does not appear to understand the purpose and effect of the statutory declaration you must decline to witness it.

5. Warn the declarant

If you are satisfied that the declarant understands the purpose and effect of the statutory declaration, you must warn the declarant that:

  • it is a serious criminal offence to make a false declaration; and
  • the penalties for making a false declaration include imprisonment.
You should ask the declarant appropriate questions to confirm they understand the warning.

6. Ask the declarant to declare the contents are true and correct

You must ask the declarant to make a declaration as per the statutory declaration form. Under the Oaths Act 1900 (NSW), you can ask the declarant of a NSW statutory declaration the following question:

"Do you solemnly and sincerely declare the contents of this declaration to be true and correct, to the best of your knowledge and belief?"

It is sufficient if the declarant responds with words which indicate an affirmative answer (e.g. 'yes' or 'I do').

7. Witness the declarant sign the statutory declaration

If the declarant has agreed the contents are true and correct, the declarant must sign each page of the declaration and sign and date the jurat (i.e. the section where the declarant and the witness both sign).

The declarant must sign in your presence.

Where the statutory declaration comprises more than one page, it is recommended that the declarant also signs at the bottom of each proceeding page of the declaration.

Note, you must observe the person signing the document in real time.

Therefore, when witnessing via video conference the camera angle will need to allow you to see both the face and the signing hand of the person signing the document.

8. Sign and print your full name, occupation and other details

After you have witnessed the declarant sign each page of the statutory declaration, you must then sign each page of the declaration and sign the jurat.

Make sure to check for any annexures to the statutory declaration. If an annexure is annexed, it must:


  • be referred to in the statutory declaration, and
  • include a written statement by the authorised witness that identifies it as an annexure.
When witnessing a NSW statutory declaration by audio visual link you should attest or confirm the signature was witnessed by signing the document or a copy of the document as soon as practicable after witnessing. The witness may sign a counterpart of the original statutory declaration or countersign a scanned version of the document. The document signed by the witness should then be endorsed with a statement outlining the method used to witness the signature and that the document was witnessed in accordance with the new regulations.

A NSW statutory declaration witnessed in accordance with the new regulations will comprise two separate documents with "wet-ink" signatures. Both of those documents should be kept together where possible.

For guidance on preparing or witnessing a statutory declaration, please feel free to contact one of the solicitors in our Private Clients group. Alternatively, you can email Terry McCabe, the Principal of the group, directly at terry.mccabe@mccabecurwood.com.au

Jacob Goodwin works as a Law Clerk in the Private Clients group at McCabe Curwood and is a NSW Justice of the Peace.


1 The key points outlined above in relation to witnessing a NSW statutory declaration include extracts from the NSW Justice of the Peace Handbook. For more information, you can download the handbook here.

Contributors

Jacob Goodwin Law Clerk