3/08/2010 6:52:51 AM
Paul Meredith -
In an ideal world, questions like whether a CA can witness a stat dec would have a simple Yes or No answer. It will come as no surprise to learn that we are not living in an ideal world.
The answer varies by jurisdiction. We'll start with a consideration of a Commonwealth statutory declaration, and then run through the various states and territories. Our understanding is that Commonwealth statutory declarations should be used when the declaration relates to a law of the Commonwealth. Where the declaration relates to a state or territory law, the declaration appropriate to the particular jurisdiction should be made.
This issue is not determined by Institute regulations, but rather by legislation. Our understanding has been informed by online research, but we would welcome any comments which can expand on this.
According to the Attorney-General's Department website, under the Statutory Declarations Act 1959 (Cth), members of the Institute may witness the signing of a Commonwealth statutory declaration.
New South Wales
Judging from information on the NSW Department of Premier and Cabinet website, a chartered accountant is not specifically identified as a person able to witness a statutory declaration. We would understand that, unless the chartered accountant is a justice of the peace or other person authorised by the Oaths Act (NSW), they would not be able to witness a NSW statutory declaration.
According to the Victorian Department of Justice website, under the Evidence Act 1958 (Vic), members of the Institute may witness the signing of a statutory declaration in Victoria.
According to the Commonwealth Attorney-General's Department website, the ACT uses Commonwealth statutory declarations. This would mean that a CA could witness a statutory declaration for the purposes of an ACT law.
According to the NT Department of Justice website, a statutory declaration may be made (signed) before any person who has attained the age of 18 years (section 23C(1)(b) Oaths Act (NT)). Update: The Oaths, Affidavits and Declarations Act 2010 (NT) repealed the Oaths Act. There was no change to the requirements for the witnessing of a statutory declaration in the NT.
According to the Tasmanian Department of Justice website, the Oaths Act 2001 (Tas) provides that the people listed in the Schedule to the Statutory Declarations Regulations 1993 (Cth) are commissioners for declarations in Tasmania. This list includes Chartered Accountants.
According to the WA Department of the Attorney General website, accountants may witness statutory declarations made under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). The definition of accountant in the Act includes members of the Institute.
We understand that the situation in Queensland is similar to New South Wales, in that unless the chartered accountant is a justice of the peace or other person authorised by the Oaths Act (Qld), they would not be able to witness a Queensland statutory declaration.
We understand that the situation in South Australia is similar to that in New South Wales, in that unless the chartered accountant is a justice of the peace or other person authorised by the Oaths Act (SA), they would not be able to witness a South Australian statutory declaration.
Note that on 7 November 2008 the then Attorney-General announced that statutory declarations would be made uniform across Australia. As at August 2010 July 2012 February 2014, we are not aware of any developments on this front.
Update: Post amended July 2012 and February 2014 to update links.
Paul Meredith (Member since: 4/07/2010 12:05:45 AM)
I am the Head of Professional Standards at the Institute, a chartered accountant and a former suburban practitioner.
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Can a CA witness to a statutory declaration made overseas?
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