Statements & Statutory Declarations
In cross-border life, many clients are asked at various points to “provide a statement”:
In Australian law, this kind of document is referred to as a statutory declaration. Unlike a colloquial “statement”, it is a formal written document made by the declarant before a legally prescribed witness, with criminal liability attached to false statements.
This page explains, for NSW, the types of statutory declaration, the difference between the Commonwealth and State frameworks, the considerations when drafting a declaration for overseas use, and its place in the notarisation system.
migration applications require evidence of a relationship or a particular history;
overseas visa, university enrolment or professional registration may require personal identity or qualification evidence;
domestic Chinese household registration, marriage, social security or insurance matters require factual statements;
commercial matters require confirmation that a particular statement is true;
in a legal dispute, written factual statements may be required.
Two Systems: Commonwealth vs NSW
In Australia, statutory declarations operate under two parallel frameworks:
1. Commonwealth Statutory Declaration
- Legal basis: *Statutory Declarations Act 1959 (Cth)*;
- Primarily used for federal matters (for example, federal agencies, migration, Centrelink, ATO);
- Also commonly used for documents submitted overseas;
- Witnesses must come from the categories listed in the Statutory Declarations Regulations (lawyer, JP, Public Notary, doctor, police officer, etc.);
- Since 2021, electronic signing and remote witnessing have been allowed where conditions are met, though paper versions are typically still preferred for overseas use.
2. NSW Statutory Declaration
- Legal basis: *Oaths Act 1900 (NSW)*;
- Primarily used for matters within NSW (for example, NSW government agencies, NSW legal proceedings);
- The witness categories differ slightly from the Commonwealth list;
- In some cases, not suitable for overseas use unless further notarised by a Public Notary.
In practice, whether to use the Commonwealth or NSW version typically depends on:
- the level of the receiving institution;
- whether the document will be sent overseas;
- whether further Apostille or legalisation will be needed.
Where the document is for overseas use, a Commonwealth statutory declaration or a notarised statement is typically the more robust starting point.
Core Elements
A reasonably complete statutory declaration typically includes:
1. Declarant’s Identity
- Full name (matching passport and identification);
- Nationality, date of birth;
- Contact address;
- Where necessary, copies of identification attached.
2. Content of the Declaration
- One or more numbered factual statements;
- Wording should be specific, objective, and based on personal experience or knowledge;
- Avoid subjective inference, emotion or legal conclusion.
3. Statutory Warning
- Statutory declarations typically include a statutory warning text — for example, that the declarant understands false declarations may amount to perjury or a related criminal offence;
- In a Commonwealth statutory declaration, this is supported by section 11 and related provisions of the Statutory Declarations Act.
4. Signature and Witnessing
- Declarant’s signature;
- Witness signs as required and completes details (name, role, address);
- Seal where necessary (for example, a Public Notary’s seal).
Statutory Declarations for Overseas Use
Where the declaration will be used overseas (particularly in mainland China, Southeast Asia or the Middle East), the path typically differs from purely domestic use:
1. Notarisation
- The Public Notary witnesses the signing in person;
- The Public Notary affixes the seal and signature;
- The Public Notary issues a notarial certificate.
2. DFAT Authentication or Apostille
- For the Apostille path: DFAT affixes the Apostille;
- For the dual authentication path: DFAT affixes authentication, followed by consular legalisation.
3. Overseas Receipt
- The receiving overseas institution accepts the document in accordance with its rules;
- In some cases, the destination may require local translation or further “use notarisation” by a local notarial office.
In practice, compared with a NSW statutory declaration witnessed by a JP, an English statement notarised by a Public Notary is typically more readily accepted overseas.
Common Use Cases
Common scenarios for statements and statutory declarations include:
1. Migration and Visas
- Relationship declarations (for example, de facto);
- Work history or qualification history declarations;
- Source-of-funds statements;
- Statements regarding guardianship and arrangements for minors.
2. Overseas Identity and Household Registration
- Self-declarations needed for household registration changes in China;
- Factual statements regarding marriage, childbirth or adoption;
- Factual statements for domestic Chinese social security and insurance.
3. Business and Company Matters
- Director or shareholder identity declarations;
- Factual explanations of how a company resolution was formed;
- Document authenticity declarations;
- Overseas investor background declarations.
4. Legal Disputes and Litigation
- Factual statements submitted in proceedings;
- Witness statements (in some jurisdictions, statutory declarations are accepted);
- Substitute function for sworn affidavits in some places (subject to destination law).
5. Personal Matters
- Statements regarding assets and liabilities;
- Personal history and relationship statements;
- Factual statements for overseas banks, insurers and educational institutions.
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Drafting Style
A statutory declaration that will be accepted overseas typically has the following characteristics:
1. First Person
- Typically begins with “I, [declarant’s name], do solemnly and sincerely declare…”;
- In Chinese the equivalent is “本人，[姓名]，特此郑重声明…”.
2. Numbered Facts
- Each fact is independently numbered, making it easy to distinguish when there are multiple statements;
- Avoid mixing multiple facts in a single paragraph.
3. Objective and Verifiable
- Wording should be capable of being verified by external evidence;
- Avoid expressions like “probably”, “may” or “I think”;
- Avoid legal conclusions in the declaration (for example, “I have not breached the law”, “the contract is valid”).
4. Bilingual Treatment
- If used in China, a Chinese version is typically required;
- If a bilingual version is used, the English and Chinese must correspond strictly;
- Where necessary, the Public Notary should also certify the correspondence of the translation.
Penalties for False Declarations
Statutory declarations have formal legal effect and carry criminal liability for false statements:
- under section 11 of the *Statutory Declarations Act 1959 (Cth)*, making a false declaration may be an offence carrying up to 4 years’ imprisonment;
- under NSW law, including the *Oaths Act 1900 (NSW)* and related criminal provisions, false declarations may also trigger criminal liability;
- in specialised areas such as migration, social security and tax, additional penalties may apply.
This is why many receiving institutions (especially government agencies, courts and banks) prefer statutory declarations to ordinary “written explanations” — they carry a stronger legal accountability core.
Common Pitfalls
In practice, common pitfalls include:
1. Wrong Declaration System
- Using a NSW statutory declaration for a federal agency, or vice versa;
- Using a NSW version for an overseas institution and having it rejected.
2. Unqualified Witness
- Not witnessed by a person from the listed eligibility categories;
- Using a JP to witness, then attempting to use the document overseas and being asked to redo with a Public Notary.
3. Inappropriate Wording
- Including too much subjective judgement or legal conclusion;
- Failing to distinguish clearly between “personal experience” and “hearsay”;
- Inconsistency between English and Chinese wording.
4. Lack of Supporting Evidence
- The declaration touches on key facts but lacks supporting evidence;
- In migration, commercial and litigation contexts, a declaration alone often cannot prove the full case.
5. Authentication Process Not Completed
- Notarisation but no DFAT or consular step, leading to overseas rejection;
- Mistakenly assuming “notarisation is enough”.
How We Can Help
In statement and statutory declaration matters, NS Legal typically assists clients to:
- assess the use case (federal, NSW, overseas);
- draft declarations that meet the receiving institution’s requirements;
- handle English-Chinese correspondence in bilingual scenarios;
- complete notarisation by our in-house Public Notary;
- coordinate DFAT and consular legalisation;
- coordinate with migration, commercial, family law and litigation teams where relevant;
- assess the potential legal liability and risks involved in the declaration.
Our focus is to ensure a declaration is not just “formally drafted” but capable of being effective in the destination.
When to Seek Advice
We typically recommend seeking legal advice early in the following situations:
- migration or visa applications require factual declarations;
- domestic Chinese household registration, social security or insurance matters require personal declarations;
- commercial matters involve director, shareholder or background statements;
- factual statements are required in litigation or mediation;
- you have received feedback from an overseas institution on the form or content of a declaration;
- you are concerned that an already-signed declaration may be rejected overseas.
Frequently Asked Questions
What’s the difference between a statutory declaration and an ordinary “written explanation”?
The key difference is legal accountability.
An ordinary written explanation is typically a one-sided record by the party and may not carry legal force;
A statutory declaration is a formal declaration made before a legally permitted witness, and false statements may amount to a criminal offence (for example, up to 4 years’ imprisonment under the Commonwealth framework);
Because of this, institutions tend to prefer statutory declarations as formal evidence.
If you are wondering “is a statutory declaration worth doing”, you typically need to weigh the receiving institution’s requirements, the potential risk of false statements and whether further notarisation or authentication is required.
I already have a JP-witnessed declaration from NSW — can I use it directly in China?
Generally not.
A NSW statutory declaration primarily serves NSW matters and has limited international recognisability;
Mainland Chinese receiving institutions typically require a version notarised by a Public Notary and completed through DFAT and the Chinese consulate in Australia;
In some cases, China will also require Chinese translation and “use notarisation”.
If you plan to send the declaration to China, design the document on the Public Notary path from the drafting stage to avoid rework.
Can a statutory declaration include my own judgement or opinion?
Generally not advisable. The core of a declaration is objective factual statement — for example, time, place, event sequence, relationship background. Avoid:
subjective judgement (“I feel he treated me unfairly”)
legal conclusions (“he committed fraud”)
broad characterisations (“he has been performing poorly for a long time”)
Where subjective impressions or evaluations need to be expressed, they should typically go into other documents accompanying the declaration — for example, evidentiary materials, a solicitor’s letter or court submissions. NS Legal typically assists in clearly separating subjective and objective parts during drafting.
I need to make a declaration about a marriage / de facto relationship — can I write it myself?
You can provide factual information, but drafting by a lawyer is typically recommended. De facto relationship declarations are sensitive when used in NSW, federal and overseas (such as Chinese) contexts, and typically involve:
start of the relationship and duration of cohabitation
whether the parties lived publicly as partners
joint finances, joint accounts and shared address
shared children
the degree of mutual dependence
How these facts are described directly affects how the receiving institution (migration, Centrelink, Chinese household registration) views the matter. NS Legal will structure the wording in line with destination requirements during drafting, to avoid declarations that appear comprehensive but are in fact inadequate.
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