The importance of following proper processes for making a Statutory Declaration

As lawyers and Justices of the Peace, we are often asked to witness signatures on important documents such as Statutory Declarations.  As authorised witnesses, we must ensure that we comply with the witnessing requirements as set out in the Oaths Act for a number of reasons, otherwise we risk being found guilty of professional misconduct and reprimanded – as was the case for a Jindabyne lawyer in 2017.

What is a Statutory Declaration?

A Statutory Declaration is a written statement which a person swears, affirms or declares to be true in the presence of an authorised witness, such as a Justice of the Peace, a lawyer or a Notary Public.  In New South Wales, the declaration is made under the Oaths Act 1900.

The Statutory Declaration must be in either of 2 formats provided under the legislation, the most commonly used format being the one prescribed by Schedule 8 of the legislation.

What is the process?

To make a Statutory Declaration, the deponent (that is, the person swearing, affirming or declaring) sets out the various facts, circumstances, reasons and so on that they need to state, then swears, affirms or declares those facts etc. to be true.  Anyone who intentionally makes a false statement on a declaration can be charged with an offence.

In New South Wales, the deponent may be found guilty of an indictable offence and liable to imprisonment for up to 5 years (Section 25).  If the deponent also derives or attempts to derive a material benefit as a consequence of the untrue particular, then they may be found guilty of an offence and is liable on conviction on indictment to imprisonment for a term up to 7 years (Section 25A).

The obligations of the witness

The legislation also requires the authorised person witnessing the deponent’s signature to:

• see the face of the deponent;
• know the deponent (or confirm the deponent’s identification); and
• must certify on the declaration in accordance with the regulations.

Therefore, the witness is required to complete an additional statement at the end of the Statutory Declaration confirming these points.  If the witness fails to comply with these requirements, then they risk being penalised (Section 34).

The case of the “post-it note” and the pen

In 2016, a lawyer practising at a Jindabyne firm in the Snowy Mountains region (Last & Maxwell) mailed a letter to his clients who lived in Sydney, enclosing 2 statutory declarations for their signatures.  There was a post-it note attached to the statutory declarations with a handwritten message reading:

• Pls sign the stat dec in the marked places
• I will witness your signature when you return them & complete all the balance details
• Please send the same pen back

The clients signed the declarations.  The lawyer no longer worked at Last & Maxwell, so he directed the clients to return the declarations to Last & Maxwell as it was their matter.

On receipt of the declarations, a lawyer at Last & Maxwell noted that the declarations had not been witnessed as required.  The post-it note (and the pen) were with the declarations.

The lawyer reported the conduct to the Law Society of New South Wales as, what she considered to be, a reportable breach of professional standards.  In the proceedings brought by the Legal Services Commissioner before the Civil and Administration Tribunal, the subject lawyer conceded that his conduct amounted to unsatisfactory professional conduct but not professional misconduct, and suggested that the appropriate order would be a reprimand, a fine in the order of $1,000.00 and an order for costs.

In its 2017 decision, the Tribunal stated:

                In our view, a competent solicitor would have included in the covering letter or in a separate information sheet a written instruction expressed in an easy-to-follow way as to what was required … In our view, [the lawyer] well appreciated that what he was doing was improper, and the use of the post-it note reflected that appreciation …

                We are satisfied that the solicitor engaged in conduct that he knew at the time was wrong, reflected in the steps that he took to use a transient document, a post-it note, to convey instructions to his clients.  We are satisfied that he chose to include a pen so that could be used both by his clients and him to assist in giving the impression that the declarations were signed and witnessed at the same time in each other’s presence.  The behaviour lacked integrity.

The Tribunal found him guilty of professional misconduct and ordered that he be reprimanded, he undertake a professional education course in ethics and integrity, that he pay a fine of $2,500.00, and that he pay the Commissioner’s costs.

The Tribunal’s decision can be read here.

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It is for these reasons that when we witness Statutory Declarations, we require the deponent to present to us their original photo identification (such as a current driver’s licence or passport).  We also cannot witness a document that has already been signed.  The document must be signed in our presence by the person making the declaration, and whose identity has been verified.