This Bills Digest replaces a preliminary Bills Digest dated 11 September 2023.

Purpose of the Bill

The purpose of the Statutory Declarations Amendment Bill 2023 (the Bill) is to amend the Statutory Declarations Act 1959 (the SD Act) to expand the ways that statutory declarations can be executed under Commonwealth law.

Under the Bill, statutory declarations would be able to be executed in any one of the following ways:

• traditional paper-based execution, requiring wet-ink signatures and in person witnessing
• electronic execution, through the application of an electronic signature and witnessing via an audio-visual communication link
• digital execution through the use of a prescribed online platform that verifies the identity of the declarant through a prescribed digital identity service provider.

When introducing the Bill in the Parliament, the Attorney-General stated:

This bill will 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. This bill is an important milestone in driving the digitisation of government services.

Background and key issues

Commonwealth statutory declarations

A Commonwealth statutory declaration is a legal document that contains a written statement about something that the declarant is asserting to be true. These documents are used to create reliable statements and attest to a series of events for administrative, commercial, civil and private purposes.

Under the SD Act, it is a criminal offence to intentionally make a false statement in a Commonwealth statutory declaration, carrying a maximum penalty of four years imprisonment (section 11).

Currently, execution of Commonwealth statutory declarations requires three elements to be satisfied: the use of the prescribed form, the signing of the declaration by the declarant and the witnessing of the declarant’s signature by a prescribed person (section 8 of the SD Act and Regulation 7, and Schedules 1 and 2 to the Statutory Declarations Regulations 2018).

The Commonwealth, states and territories all have different statutory declarations.[1]

According to modelling undertaken for a 2021 Government consultation process, more than 3.8 million statutory declarations are completed each year by small and medium enterprises (SMEs) and consumers in Australia. It was estimated that SMEs and consumers spent around 9 million hours a year printing and collecting, travelling to authorised witnesses, discussing and filling out declarations with witnesses, making copies and submitting completed declarations.[2]

Electronic execution of statutory declarations

Temporary changes were made to the Commonwealth law during the COVID pandemic through the Coronavirus Economic Response Package (Modifications—Statutory Declarations and Notices of Intention to Marry) Determination 2021.These changes, which are in place until 31 December 2023, allow Commonwealth statutory declarations to be completed and witnessed electronically.[3] This means a person can use an electronic signature to make a Commonwealth statutory declaration and have it witnessed using audio visual technology. While introduced to overcome the problems of isolation and lock downs caused by the pandemic, stakeholders have indicated that these temporary measures were also beneficial in saving time and providing convenience and flexibility.[4]

The Bill will make permanent these temporary arrangements put in place during the pandemic that allow a Commonwealth statutory declaration to be witnessed remotely via video link and signed electronically (proposed section 9).[5]

Digital verification for statutory declarations

The Bill’s more significant amendments establish the framework for a digital verification method for making a Commonwealth statutory declaration.

In particular, the Bill provides that a statutory declaration will be valid where it is completed and signed through an approved online platform prescribed under the regulations and where the identity of the declarant has been verified using an approved digital identity service that has been prescribed under the regulations (proposed section 9A).

The technical requirements and conditions regarding digital verification are not in the Bill but are to be prescribed by regulation. Importantly the new digital option would require the use of a prescribed form, signed by the declarant but would not require the declaration to be witnessed.

In relation to the approved online platform and digital identity service, the Explanatory Memorandum states that it is intended that

the regulation-making power will allow the Minister to require the entities providing the approved online platform to be authorised to operate within the Australian Government Digital ID System (AGDIS). This will include requiring an approved identity service to be accredited under the Trusted Digital Identity Framework (TDIF) to operate within the AGDIS. This requirement will ensure that these services meet the strict rules and standards relating to, for example, usability, accessibility, privacy protection, security, risk management, and fraud control contained within the AGDIS. (p. 14)

The Explanatory Memorandum argues that this approach will provide both flexibility for the technical requirements to evolve with technological advancement while also enabling the Parliament oversight of any prescribed elements, given the Parliament may disallow regulations.[6]

Special obligations to apply to approved online platforms.

The Bill also contains provisions to ensure security and transparency. These include:

• a requirement that before prescribing a digital service to be an approved online platform or approved identity service, the Minister must be satisfied that the digital service complies with privacy laws and has robust fraud and security arrangements (proposed subsection 14(3))
• a prohibition on approved online platforms retaining copies of statutory declarations (proposed subsection 9B(1))
• an annual reporting requirement to Parliament on the operation of the online platform (proposed subsections 9B(2) and 9B(3)).

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee) for inquiry and report by 18 October 2023. Details of the inquiry are on the inquiry webpage.

Senate Standing Committee for the Scrutiny of Bills

The Committee has no comment in relation to the Bill.[7]

Policy position of non-government parties/independents

Paul Fletcher, Manager of Opposition Business in the House of Representatives, expressed the Coalition’s support for the Bill, stating that the Bill ‘will provide practical savings in time and cost for Australians dealing with administrative tasks in life, work and business’.

At the time of writing this Bills Digest, members of other non-government parties or independents do not appear to have commented on the Bill.

Position of major interest groups

Stakeholders have previously indicated strong support for modernising the execution of statutory declarations. In a 2021 consultation process on modernising document execution conducted by the then Deregulation Taskforce within the Department of the Prime Minister and Cabinet, stakeholders argued that the paper-based method of statutory declarations did not meet the evolving needs and expectations of individuals or small businesses, and that there were savings in both time and money by allowing electronic and digital execution pathways.[8]

More recently, in July 2023, the Attorney-General’s Department (AGD) released a consultation paper and called for comments on proposals for reform that largely mirrored the amendments in the Bill. Submissions to this consultation process are available on the AGD website. Submitters were generally supportive of the proposals to expand the scope of the ways that statutory declarations could be executed, although some of the more substantial submissions, in particular from the Law Council of Australia and the Australian Council of Justices Associations, raised some concerns in relation to digital execution.

At the time of writing this Digest, submissions to the Senate Committee inquiry into the Bill so far received, are generally supportive of the Bill. For example, the Business Council of Australia states:

The Bill is consistent with bringing government frameworks into the digital age and allowing businesses and individuals to use the option that best suits them, in turn improving their productivity, (p. 1).

The Australia Lawyers Alliance (ALA) members broadly support the proposals to expand the options for Commonwealth statutory declaration execution. They agree that digitally verified execution will facilitate access to justice and more equitable access to legal processes. However, given that the details of the online platform and the digital identity service are to be prescribed in regulations, ALA submits that ‘direct stakeholder consultation on those regulations would be appropriate’. (p. 8)

ALA also submits that privacy protection and data security are especially important for digitally verified execution, acknowledging the extent to which Bill addresses these issues. However, the ALA notes concerns that have been raised very recently about privacy protection and data security through the AGDIS and Commonwealth Government platforms such as myGov, after highly‑publicised cyber attacks and data breaches revealed systemic vulnerabilities in privacy protection and data security. The ALA therefore submits that it is:

[…] imperative that the Federal Government requires providers of approved online platforms to have in place the most strict privacy protections and policies plus the most secure data management systems for those providers to attain approval to process Commonwealth statutory declarations.

The ALA contends that the Federal Government must also ensure that privacy protections and data security measures are improved within the AGDIS and through platforms like myGov. This will ensure public trust in and willingness to use the digitally verified option for executing Commonwealth statutory declarations. (p. 10)

Some media reports published immediately after the introduction of the Bill indicated there may be reservations regarding the Bill. In particular, the Age reported that NSW Justices Association state president Dr John Brodie said he was worried the historical reliability of a very powerful document would be watered down. He is quoted as saying:

I have always been concerned about the possibility someone could get access to your electronic signature and apply it, simply because no one can access your wet signature […] Of more concern, though, is with the MyGov ID. The whole point of the witness is you have to carry out steps to make sure the person knows what they’re signing, and give them a warning of the severe penalties for lying.[9]

According to the Age, Dr Brodie was particularly worried about coercion in family contexts stating:

If you take a witness out of the equation, I’m concerned it will devalue a statutory declaration and it becomes another useless document, rather than the strong document it is today after hundreds of years.

However, the same media article also quotes Professor Veronica Taylor, a professor of law and regulation at the Australian National University, who supports the Bill stating:

The new reform will make it less burdensome for the ordinary person […] The digital format will become the norm, and we’ll barely remember there was a time we were doing this with wet ink signatures– in the same way we abandoned wax seals a long time ago.

Professor Taylor was an Expert Advisor to the Department of the Prime Minister and Cabinet’s 2021 Deregulation Taskforce and co-authored a paper commissioned by the Taskforce: Executing documents in a digital economy: rethinking statutory declarations and deeds in Australia.

Financial implications

According to the Bill’s Explanatory Memorandum there are no financial impacts in relation to this Bill.[10]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[11]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights has not commented on the Bill.

Key provisions

The key provisions in the Bill have been referred to throughout the Bills Digest. For further clarification, the provisions are also summarised here.

Currently, section 8 of the SD Act sets out how a statutory declaration is to be made, providing that the declaration must be in the prescribed form and be made before a prescribed person.

Item 3 repeals section 8 and substitutes proposed sections 8, 9, 9A and 9B. These provisions set out how a statutory declaration may be validly made.

Proposed section 8 provides that in order to be validly made, a statutory declaration must be made in either of two ways:

• observed by a prescribed person as set out under section 9 or
• made through a digital verification process as set out under section 9A.

Proposed section 9 sets out the requirements for making a valid statutory declaration observed by a prescribed person. The declaration:

• must be in the approved from and
• must be signed by the declarant and observed by the prescribed person either:
  • in person
  • or by video link.

Proposed paragraph 9(c) sets out how the prescribed person (the witness) is to sign the declaration after witnessing the declarant sign. For the declaration to be valid the witness must either:

• sign the declaration signed by the declarant or
• in the case of witnessing by video link, the witness may, as an alternative, sign a copy of the declaration signed by the declarant (whether or not that copy includes the declarant’s signature).

Proposed section 9A sets out the framework for making a digitally verified statutory declaration.

A statutory declaration satisfies the requirements of this section if:

• the declaration is in the approved form and is completed and signed by the declarant using an approved online platform
• the identity of the declarant is verified using an approved identity service in accordance with the conditions prescribed by the regulations
• the declaration includes information that is provided by the approved online platform and is of a kind prescribed by the regulations.

An approved online platform is defined as a digital service that is prescribed by the regulations to be an approved online platform (proposed subsection 9A(2)).

An approved identity service is defined as a digital service that is prescribed by the regulations (proposed subsection 9A(3)).

As already noted, the making of a digitally verified statutory declaration according to proposed section 9A would not require the declaration to be witnessed.

Proposed section 9B sets out additional obligations that apply to approved online platforms. These include:

• a prohibition on approved online platforms retaining copies of statutory declarations (proposed subsection 9B(1)). (An approved online platform can have its approval revoked for a breach of this obligation (proposed subsection 14(5)))
• an annual reporting requirement to Parliament on the operation of the online platform (proposed subsections 9B(2) to 9B(5)).

Item 7 amends section 14 to add further special requirements for making regulations related to the digital verification method of execution.

Proposed subsection 14(3) sets out conditions on the exercise of the power to prescribe an approved online platform under subsection 9A(2) and an approved identity service under subsection 9A(3).

In particular, before making regulations prescribing an approved online platform or an approved identity service, the Minister must:

•  be satisfied that a digital service will operate in a way that complies with the Privacy Act 1988 and any corresponding law of a State or Territory that the Minister considers relevant (proposed paragraph 14(3)(a))
• be satisfied of the effectiveness of the digital service’s protective security arrangements and fraud control arrangements. In relation to security arrangements, this includes security governance, information security, personnel security and physical security (proposed paragraph 14(3)(b))
• be satisfied of any matters prescribed by the regulations
• take into account any matters prescribed by the regulations.

The Explanatory Memorandum states that the special regulation making powers in proposed subsection 14(3) enable parameters to be put in place for the Minister to consider in relation to determining how an online statutory declaration execution service should operate. It explains:

Statutory declarations are solemn documents. Introducing a fully digital option for making a statutory declaration is a significant change. Statutory declarations are historically strictly paper-based documents requiring wet-ink signatures and in person witnessing. This subsection will allow for regulations to be made to ensure that appropriate matters are taken into consideration when enabling the digital verification method of execution under section 9A.

 For example, in prescribing an approved online platform under subparagraph 9A(1)(a)(ii) and an approved identity service under paragraph 9A(b)(i) it would be relevant to consider the AGDIS and whether the entities are appropriately accredited under the TDIF. Subsection 14(3) would allow for this consideration to be prescribed. (p. 19)

Item 8 inserts proposed sections 15 and 16.

Proposed section 15 would empower the Minister to approve forms for the making of statutory declarations. This is a shift from the current arrangement where forms are prescribed by the regulations.

Proposed section 16 requires that the operation of the Act be reviewed 2 years after commencement of the Bill.