A new law which makes permanent the use of electronic signatures and introduces a new digital execution option for Commonwealth statutory declarations received Royal Assent last week. According to the Attorney-General who introduced the bill, this marks a significant milestone that will "save Australian time and money".
The Statutory Declarations Amendment Act 2023 (Act) amends the Statutory Declarations Act 1959 to expand the ways in which statutory declarations can be executed under Commonwealth law. These will include:
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; and
digital execution through the use of a prescribed online platform that verifies the identity of the declarant through a prescribed digital identity service provider.
The technical requirements and conditions regarding digital verification are not in the Act but are to be prescribed by regulation. Importantly, the new digital option would not require the declaration to be witnessed.
All three methods will be an equally valid and legally effective form of Commonwealth statutory declaration. The Act will enable people to digitally execute a statutory declaration using the online platform myGov and the myGov ID Digital ID upon the accompanying government regulations coming into effect. It is not yet known whether the Commonwealth will endorse the use of other private digital execution platforms like Docusign.
The Act has been passed by both houses of the Parliament and became law upon Royal Assent on 17 November 2023. The accompanying regulations which will provide a framework for the digital execution option are yet to be finalised.
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.
The important role of Commonwealth statutory declarations
Commonwealth statutory declarations are an important and frequently-used tool by Australians - it 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. It is a criminal offence to intentionally make a false statement in a Commonwealth statutory declaration, carrying a maximum penalty of 4 years imprisonment.
Despite the importance of Commonwealth statutory declarations, the old rules under which these declarations must be made were certainly not perfect.
Issues with the old rules
Before the new law, execution of Commonwealth statutory declarations required 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.
Historically, these documents have been strictly paper-based, requiring them to be witnessed in person and signed in ink. This rule was temporarily relaxed during the Covid-19 pandemic, allowing a Commonwealth statutory declaration to be witnessed remotely via video link and signed electronically. Though the temporary relief was a welcome change, it was due to expire on 31 December 2023. The commencement of the Act is intended to coincide with this expiry.
The old rules were time and cost consuming. 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 declaration.
The Attorney-General also provided important numbers around the time and costs that the Act will save:
Digital statutory declarations could save over $156 million each year, hundreds of thousands of hours and be a productivity winner for the private sector.
Privacy and data protection
The Government recognises that any digital option must have strong safeguards that protect against fraud and misuse of personal information.
The Act includes a range of provisions to ensure transparency and accountability, and a requirement for approved online platforms and identity services to demonstrate that they comply with privacy laws and have robust fraud and security arrangements.
The Act also prohibits approved online platforms from retaining copies of statutory declarations, noting that they can hold particularly sensitive personal information. There is also an annual reporting requirement to the Parliament on the operation of the online execution platform.
The Attorney-General said the reform will benefit all Australians seeking a more convenient, and efficient, statutory declaration process - particularly those in rural, remote or regional parts of Australia. He also emphasised that the Act is
in line with the Data and Digital Government Strategy we are committed to embracing digital technologies to improve service delivery.
Each State and Territory has their own rules on statutory declarations, so the new Commonwealth Act will not directly apply to statutory declarations made under these rules. However, it is possible that States and Territories will follow the lead of the federal government and reform their own rules in due course.
Written by Michael Bacina, Steven Pettigrove and Jake Huang