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Department of Justice

Commissioners for Declarations and Statutory Declarations

 

A Guide to the Performance of the Functions of Commissioners for Declarations and the Use of Statutory Declarations

From July 1 2002 the provisions previously found in the Evidence Act 1910 relating to Commissioners for Declarations and Statutory Declarations will all be covered in the Oaths Act 2001.

Functions of a Commissioner for Declarations

The functions that may be discharged by a Commissioner are specified in Section 14(3) of the Oaths Act in these terms: -

“If under any Act[1], a declaration or document is authorised or required to be made or signed before a justice, it is sufficient if that declaration or document is made or signed before a commissioner for declarations”.

In essence Commissioners are empowered to exercise some of the ministerial functions of justices. They may witness signatures to documents and take statutory declarations but they are not authorised to administer, take or receive an oath, affidavit or affirmation or receive a complaint or issue a summons or a warrant.

The jurisdiction of Commissioners is statewide.

The relevant provisions of the Oaths Act are as follows: -

Commissioners for Declarations

Section 12 (1) The Minister[2] may appoint persons to be commissioners for declarations.

(2) A person is a commissioner for declarations if that person is

(a) is authorised to practice as a member of a profession listed in Part 1 of the Schedule to the Statutory Declarations Regulations 1993 of the Commonwealth;[3] or

(b) a person listed in Part 2 of the Schedule; or

(c) a member of a group of persons declared by the Minister to be an occupational group for the purposes of this section[4]

(3) The Minister is to publish in the Gazette notice of any

(a) appointment under subsection 1 and

(b) declaration under subsection (2)(c) and

(c) any revocation of the appointment or declaration.

Title to be shown

Section 13 A commissioner for declarations signing in that capacity is to add after his or her signature

(a) "commissioner for declarations" and

(b) his or her title, if qualified as a commissioner under section 12(2)[5].

Statutory declarations

Section 14(1) Any justice or other person by law authorised to administer an oath or a commissioner for declarations may take and receive the voluntary declaration of a person.

(2) A declaration is to be in accordance with Form 1 as specified in Schedule 1[6].

(3) If, under any Act a declaration is authorised or required to be made or signed before a justice, it is sufficient if that declaration or document is made or signed before a commissioner for declarations

Validity of declaration

Section 15 A declaration made or a document signed is not invalidated only because the person before whom it was made or signed is no longer a commissioner for declarations.

Miscellaneous

Transitional provisions

Section 19(1) A declaration made under section 131B(1)(c) of the Evidence Act 1910 before the commencement of this Act is, on that commencement, taken to be a declaration made under section 12 (2)(c) of this Act[7].

(2) A person who was a commissioner for declarations under section 131A of the Evidence Amendment Act 1910 before the commencement of this Act is on that commencement a commissioner for declarations under this Act[8].

Relevant provisions of the Statutory Declarations Regulations 1993 (Commonwealth) are as follows:

The Regulations made by the Commonwealth are adopted by reference under Section 12(2) of the Oaths Act. The Schedule to the Commonwealth Regulations lists a number of professions (Part 1) and a number of employment groups (Part 2) whose members are, by virtue of being of that profession or in that employment group, a commissioner for declarations.

Part 1 – Professions

Chiropractor

Dentist

Legal practitioner

Medical practitioner

Nurse

Optometrist

Patent attorney

Pharmacist

Physiotherapist

Psychologist

Trade Marks Attorney

Veterinary Surgeon

Part 2 - Employment Groups

Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public

Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1985)

Bailiff

Bank officer with 5 or more continuous years service

Building society officer with 5 or more years of continuous service

Chief executive officer of a Commonwealth court

Clerk of a court

Commissioner for affidavits

Commissioner for declarations

Credit union officer with 5 or more years of continuous service

Employee of the Australian Trade Commission who is:

a) in a country or place outside Australia; and

b) authorised under paragraph 3(c) of the Consular Fees Act 1955; and

c) exercising his or her function in that place.

Employee of the Commonwealth who is:

a) in a country or place outside Australia; and

b) authorised under paragraph 3(c) of the Consular Fees Act 1955; and

c) exercising his or her function in that place.

Fellow of the National Tax Accountant’s Association

Finance company officer with five or more years of continuous service

Holder of a statutory office not specified in another item of this Part

Judge of a court

Justice of the peace

Magistrate

Marriage celebrant registered under Subdivision C of division 1 of Part IV of the Marriage Act 1961

Master of a court

Member of Chartered Secretaries Australia

Member of the Engineers Australia other than at the grade of student.

Member of Association of Taxation and Management Accountants

Member of the Australasian Institute of Mining and Metallurgy

Member of the Australian Defence Force who is;

a) an officer; or

b) a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982; or

c) a warrant officer within the meaning of that Act

Member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practicing Accountants or the National Institute of Accountants

Member of

a) the Parliament of the Commonwealth; or

b) the Parliament of a State; or

c) a Territory legislature; or

d) a local government authority of a State or Territory

Minister of Religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961

Notary public

Permanent employee of the Australian Postal Corporation with 5 or more years continuous service who is employed in an office supplying postal services to the public

Permanent employee of:

a) the Commonwealth or Commonwealth authority; or

b) a State or Territory or State or Territory Authority; or

c) a local government authority

with 5 or more years continuous service who is not specified in another item in this Part[9]

Person before whom a statutory declaration may be made under the laws of the State or territory in which the declaration is made.

Police officer

Registrar or Deputy Registrar of a court

RSPCA Inspector

Senior Executive Service Officer of

a) the Commonwealth or Commonwealth authority; or

b) a State or Territory or of State or Territory authority[10]

Sheriff

Sheriff's officer

Teacher employed on a full time basis at a school or tertiary education institution.

Procedures and Formalities

The following information sets out the essential procedures with which a commissioner for declarations should conform in the discharge of various aspects of his/her functions. Commissioners for declarations should familiarise themselves with the requirements and observe them on all occasions, as failure to do so could well have serious consequences.

Section 14 of the Oaths Act provides that a commissioner for declarations may take and receive a voluntary declaration which is to be in the form specified in Schedule 1 to the Act. The form of declaration to be used[11] is set out below:

'I, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(insert name, address and occupation)

do solemnly and sincerely declare that

. . . . . . . . . . . . . . . . . . . .

 (here state the facts):

I make this solemn declaration under the Oaths Act 2001.

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(signature of declarant)

Declared at . . . . . . . . . . . . . . . . . . . . . . . . . .on . . . . . . . . . . . . . . . . 

(place) (date)

before me . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (signature of Commissioner)

 Commissioner for Declarations'.

(insert ex officio status ie profession or employment))

It is immaterial whether the document has been signed by the declarant prior to the declarant appearing before the commissioner or is signed in the commissioner's presence.

This having been done the commissioner should say to the person: 'That is your name and handwriting and you solemnly and sincerely declare the contents of this declaration are true'. On the answer being in the affirmative, the commissioner then completes the declaration form adding the date and place made, and the commissioner's signature followed by the words commissioner for declarations.

Where an ex officio Commissioner signs in that capacity it is necessary to add after the words "Commissioner for Declarations" the profession or class of employment by virtue of which he/she is an ex officio commissioner (eg “nurse” or “permanent employee - Tas Government").

In no circumstances should a Commissioner witness a signature to a document unless the party appears before him/her. As a declaration is not an oath a Bible is not used.

Declarations are personal, so that any sealed with the seal of a company or other corporation or signed in the business or firm's name are not acceptable. Furthermore, no person may sign for or on behalf of any other person or corporation.

Errors

If an error is made in completing the declaration or there are erasures or interlineations in the document each should be corrected and each correction initialled by both the declarant and the commissioner.

Annexed Documents

Documents annexed to a declaration should be identified with the main document by including on them an identification clause, which is usually in this form:-

'This is the (document) marked ("A") referred to in the declaration of . . . . . . . . .

 . . . . . . . . . . .declared at . . . . . . . . . . . . . . . . . . . . . . . . . in Tasmania this

day of  . . . . . . . . . . . . . . . . . . ., 20 . . . . . . . . . . . . . . . . . . . , before me,

Commissioner for Declarations'.

Person unable to Read or Write

In the case of persons unable to read or write the document is first read over to the person concerned, and he/she is asked if they thoroughly understand its contents. If they says 'Yes' he/she affixes their mark thereto, with a pen, in the proper place, thus:-

JOHN

HIS X MARK

JONES

The Commissioner should add (after the matters being declared and before his/her signature) before signing, the following words:-

'The same having been first read over to the said "J.J." who appeared thoroughly

to understand the same, and affixed his/her mark thereto in my presence”

If, for instance the person is blind, the Commissioner should add, (after the matters being declared and before his/her signature) before signing, the following words:-

'The same having been first read over to the said "J.J.", he/she being blind, who

signed in my presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

OR,

Affixed his/her mark thereto, (as the case may be) in my presence

General

Except in the case of persons unable to read, including the blind, a commissioner is not required, nor indeed is he entitled, to read through a document in detail. However, common prudence demands that he obtain sufficient knowledge of it to understand its general nature so that he will be aware of what type of document he is being asked to attest.

Furthermore, a prudent commissioner would ask a person about to made a declaration whether he has read through it and understands its contents. A document should also be examined for the purpose of seeing whether or not there are any erasures, alterations or interlineations requiring initialling.

The Acts and Regulations can be accessed as follows:

Oaths Act 2001

Commonwealth Statutory Declaration Regulations 1993

Statutory Declaration form (PDF)

More information can be obtained from the Justice of the Peace page on the Department's website.

[1]  The reference to an 'Act' includes a reference to a regulation, rule or by-law)

[2] The Minister in question is the Minister responsible for the Oaths Act – the Minister for Justice and Industrial Relations

[3] The Regulations can be accessed at the web address at the end of this document but the Schedule is set here in full

[4] The Only occupational group declared under this section are staff of Service Tasmania outlets but transitional provisions also bring forward commissioners for declarations who were individually appointed under section 131A of the Evidence Act 1910

[5] Section 12(2) refers to professions and employment groups from the Commonwealth Regulations plus anyone covered by the Minister’s declaration

[6] See below under Procedures and Formalities

[7] This refers to persons individually appointed by the Attorney General under the old Act

[8] There are two requirements - permanency and 5 years service

[9] The permanency and 5 year rules does not apply to SES positions

[10] Same wording is used if signed before a Justice of the Peace but in those cases substitute Justice for Commissioner for declarations