What’s changed for advisers who witness statutory declarations?

On 18 September 2018, the Statutory Declarations Regulations 2018 (Cth) came into force. This replaces the previous Statutory Declaration Regulations 1993 (Cth) and now allows financial advisers to witness statutory declarations completed under Commonwealth law.

group discussion

Specifically, the change allows someone who is ‘licenced or registered to practice in Australia’ as a financial planner or financial adviser to witness statutory declarations. Unlike the anti-money laundering (AML) definition, there is no minimum timeframe an adviser must have been licenced for to witness a declaration under this regulation.

It’s important to note this change does not necessarily allow financial advisers to witness declarations completed under State law. This is because each State has its own Oaths Act, or equivalent.

The following table provides our understanding as to whether financial advisers can witness State declarations under the Commonwealth change.

State

Can financial advisers witness State declarations?

Victoria No/Yes1
New South Wales No
Queensland No
South Australia No
Western Australia Yes
ACT Yes
Northern Territory Yes
Tasmania Yes2
  1. The Victorian Oaths and Affirmations Act 2018 at section 30 provides for statutory declarations completed in the prescribed form (ie according to the specific requirements under this specific Act) to be witnessed by anyone authorised to take declarations under Commonwealth law – which will now include advisers. Complicating matters however, is that the Evidences Act 1958 (Vic) at section 107 also provides a provision for statutory declarations, which does not provide for those authorised by Commonwealth law to witness these declarations. In light of this, it is prudent to exercise caution when witnessing statutory declarations which are specified as being made under the Evidences Act as opposed to the Oaths and Affirmations Act.
  2. The Tasmanian Oaths Act 2001, section 12, refers to the repealed regulations directly. However, the Acts Interpretation Act 1931 (Tas) at section 13(5) would appear to allow the interpretation of Tasmanian law to extend to the new replacement regulation. On this basis we tentatively suggest advisers are able to witness declarations.

Match the statutory declaration to the relevant law to avoid problems

Generally, statutory declarations are required under a specific law, or are created to provide evidence for a specific legal requirement. A good rule of thumb is to ‘match’ the declaration with the law for which you are completing it. For example, a statutory declaration can be used to provide evidence of an interdependency relationship under superannuation law. As this is Commonwealth law, the lowest-risk option would be to use a Commonwealth statutory declaration.

Questions remain surrounding certification

Additionally, questions still remain regarding what this change means for certifying copies of documents. In many cases (excluding Enduring Powers of Attorney and AML certified identification) there may not be a strict legal definition as to what is required to certify a copy of the document. Consequently, it is not possible to say with certainty what documents advisers can and cannot certify in specific circumstances. Advisers should confirm with the relevant product provider what their requirements are in relation to certified copies.

Caution is warranted

Advisers should exercise caution if witnessing any declarations to ensure either the declaration is being made pursuant to the Statutory Declarations Act 1959 (Cth) or they are eligible to witness the declaration under the Act which the declaration specifies.

More information

If you have any questions in relation to this article, or would like more information, please contact a Client Solutions Manager.