The Attorney-General’s Department consultation on proposed reform to the execution of Commonwealth statutory declarations considers amendment of the Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018. Temporary measures allowing e-execution of a Commonwealth statutory declaration are due to expire on 31 December 2023.
The 2021 Modernising Document Execution Consultation undertaken by the Department of the Prime Minister and Cabinet Deregulation Taskforce
found strong stakeholder support for the introduction of e-execution and digital execution pathways for statutory declarations. It found that the paper-based system did not meet the needs and expectations of individuals or small businesses, costing time and money.
The proposed amendment of the Act and the Regulations would establish a framework to allow a Commonwealth statutory declaration to be executed in 1 of 3 ways:
• traditional paper-based execution (requiring wet-ink signatures and in-person witnessing)
• e-execution (allowing electronic signatures and witnessing via audio-visual link), and
• digital execution (end-to-end online execution, with digital identity providers to verify identity and satisfy witnessing requirements).
The proposal would involve minor amendments to the Act prescribing the execution options available to validly execute a Commonwealth statutory declaration, supported by regulations setting out the technical requirements for each prescribed execution option. A-G's is "particularly interested in stakeholder views on the proposal to allow digital execution of a Commonwealth statutory declaration", integrated with the Australian Government Digital Identity System and supporting the expansion of services offered through the myGov platform.
The A-G's short discussion paper states
A Commonwealth statutory declaration is a legal document that contains a written statement about something that the declarant is asserting to be true. It provides a mechanism for the declarant to vouch for the veracity of its contents, where it would be difficult to prove in another way. It is a criminal offence to intentionally make a false statement in a Commonwealth statutory declaration, carrying a penalty of four years imprisonment.
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.
The following sets out why each of the options within the execution framework are being considered and how they will work.
1. Traditional, paper-based execution
The proposal will maintain the traditional, paper-based execution option for those who do not have access to the required technology, or prefer not to engage with the other technology-based execution options. Under this option, a person would make their declaration on paper and sign it using wet-ink in the presence of a prescribed person.
2. E-execution
Electronic execution of Commonwealth statutory declarations will be provided for through the use of electronic signatures, witnessing via audio-visual link and the use of copies for the purpose of execution. This will make the arrangements provided for by the current temporary measures permanent. The proposal would also allow a declarant or witness to sign electronically.
The department has received positive feedback about the functioning of e-execution under the current temporary measures. Continuing to make e-execution available will provide options for those who want to engage with electronic execution but are unable or unwilling to obtain a digital identity, as required for the digital execution option.
3. Digital execution
The department has developed a proposal for digital execution in response to the 2021 consultation, which found that a digital execution pathway could address many problems identified by stakeholders with the paper-based-only system. Particularly, the provision of a digital execution option would benefit those who face barriers engaging with a paper-based process, such as those in rural, remote or regional parts of Australia, and those Australians experiencing low mobility or sensory issues.
The 2021 consultation recognised that paper based systems are not ‘risk-free’ and digital solutions may be trusted more by the community due to ‘digital innovations…strengthening document security and credibility in other domains.’
The proposal for digital execution is designed to be simple and robust, and sit cohesively within the Commonwealth statutory declaration execution framework. The execution requirements will integrate the Australian Government Digital Identity System. This will allow existing digital infrastructure (e.g. myGov and myGovID) to be leveraged to provide a digital document execution service for Australians to execute Commonwealth statutory declarations.
Reflecting on lessons learned throughout the COVID-19 pandemic, and responding to community reflections of how they wish to engage with legal documents, particularly those administered by Government, providing a digital execution option to be appropriate and responsive.
The Requirements
‘Digital execution’ would involve the end-to-end execution of Commonwealth statutory declarations through an online platform who utilises a Digital Identity Provider approved to operate within a digital identity system maintained by the Australian Government. These requirements are intended to ensure that digital execution sits within the safeguards and frameworks set by the Australian Government.
