Dominic Cantone

dominic.cantone@oracleis.com.au

Federal statutory declarations can now be made using electronic signatures and video-link witnessing.

From 1 January 2024, legislation introduced by the Federal Attorney-General allows statutory declarations to be made through the use of electronic signatures and video-link witnessing, making permanent the temporary measures that were introduced during the pandemic.  This is following the introduction of the Statutory Declarations Amendment Bill 2023 (Cth), amending the Statutory Declarations Act 1959 (Cth) to expand the ways that statutory declarations can be executed under Commonwealth law.

The legislation will also enable people to digitally execute a statutory declaration using the online platforms of myGov and the Australian Government’s Digital ID.

In summary, the legislation allows statutory declarations to be executed in one of the following ways:

• traditional paper-based execution, requiring wet-ink signatures and in person witnessing; or

• electronic execution, through the application of an electronic signature and witnessing via an audio-visual communication link; or

• digital execution through the use of a prescribed online platform that verifies the identity of the declarant through a prescribed digital identity service provider. This new digital option would not require the declaration to be witnessed.

The aim of this change, according to the Attorney-General, is to “respond to how Australians want and expect to engage and communicate digitally with government by providing options to make commonwealth statutory declarations facilitated by technology”, marking an “important milestone in driving the digitisation of government services.”

The Government has also stated that these measures could save over $156 million each year and save Australians manually processing more than 3.8 million statutory declarations.

However, there has been some push-back to the changes.  Namely, the State President of the New South Wales Justices Association, John Brodie, has expressed that digitisation could “debase” the authenticity and importance of documents such as statutory declarations by opening the door to hackers and scammers.  Mr Brodie has also questioned the Government’s assurance that there will be fraud and security measures in place, stating “Progress is great, but we all know that anything electronic is suspect to scamming, and that it can be accessed by those who want it… The acceptance of a stat dec as a proper legal document is not something we want to change.  And anything modern or super modern that might undermine the integrity of that document shouldn’t even be considered.”

Mr Brodie has also raised that video link witnessing does not provide enough security to ensure that a party isn’t being coerced into signing something, particularly if they are a vulnerable person.

The legislation has a range of provisions pertaining to security, such as a requirement for approved online platforms and identity services to demonstrate that they comply with privacy laws and have robust fraud and security arrangements.  Further, the legislation prohibits approved online platforms from retaining copies of statutory declarations.

With respect to the concerns raised regarding the changes, it should be noted that as previously mentioned, people may continue to be able to execute statutory declarations through the traditional, paper-based method should they wish, and this will still be recognised as a valid and legally effective form of a Commonwealth statutory declaration.