US Disability

'Disability Without Documentation' by Katherine Macfarlane in (2021) 90 Fordham Law Review 60 comments 

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts an individual’s assessment of their disability and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers, and courts, take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance, exploring how its support of medical documentation requirements conflicts with legislative intent and the American with Disabilities Act’s rejection of the medical model of disability. 

Documenting disability has its price. It requires access to affordable healthcare and a relationship with a medical provider willing to confirm disability’s existence. Documentation requirements may delay an urgently-needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed, if not eliminated, disabled employees may be forced to work in dangerous conditions, or not work at all.

Insurance

'Financial advisers’ and key informants’ perspectives on the Australian industry-led Moratorium on Genetic Tests in Life Insurance' by Casey Michelle Haining, Jane Tiller, Margaret Otlowski, Penny Gleeson, Carsten Murawski, Kristine Barlow-Stewart, Paul Lacaze, Aideen McInerney-Leog and Louise Anne Keogh in (2023) Public Health Genomics comments 

 Introduction: 

Genetic discrimination (GD) in the context of life insurance is a perennial concern in Australia and internationally. To address such concerns in Australia, an industry self-regulated Moratorium on Genetic Tests in Life Insurance was introduced in 2019 to restrict life insurers from using genetic test results in underwriting for policies under certain limits. Financial advisers (FAs) are sometimes engaged by clients to provide financial advice and assist them to apply for life insurance. They are therefore well-placed to comment on GD and the operation of the Moratorium. Despite this, the financial advising sector in Australia have yet to be studied empirically with regards to GD and the Moratorium. This study aims to capture this perspective by reporting on interviews with the financial advising sector. 

Methods: 

Ten semi-structured qualitative interviews were conducted with FAs and key informants and analysed using thematic analysis. 

Discussion/ conclusion(s): 

Participants’ level of awareness and understanding of the Moratorium varied. Participants reported mixed views on the Moratorium’s effectiveness and how it operates in practice, and perceived industry compliance. Participants also provided reflections on Australia’s current approach to regulating GD, with most participants supporting the concept of industry self-regulation but identifying a need for this to be supplemented with external oversight and meaningful recourse mechanisms for consumers. Our results suggest that there is scope to increase FAs’ awareness of GD, and that further research, consultation and policy consideration are required to identify an optimal regulatory response to GD in Australia.

Juries

The Australia Jury in Black and White by Jill Hunter and Sharleigh Crittenden for the Australasian Institute of Judicial Administration reviews claims that Indigenous Australians are under-represented on contemporary juries.

 Its aim is to identify the major legal and process-linked barriers to First Nations people accessing equal jury franchise and to this end, it draws on existing literature, law reform reports, statistics, case law and legislation to determine how and why (and if) this under-representation exists and to explore strategies for change for closing this particular gap. On occasions, given the lack of statistical data on the topic, the report draws on credible anecdote. The modern jury is described in case law, in academic literature and reflected in the popular imagination as an inclusive and democratic institution. The High Court of Australia recognises the representative jury as operating as a proxy of democratic legitimacy within the criminal justice system because full jury participation is central to the integrity of the institution of the jury. The so-called ‘genius’ of the jury system requires it to be non-discriminatory. Otherwise, it does not reflect ‘the ordinary experiences of ordinary people [drawn] from collective experience of ordinary affairs’, nor does it infuse the jury with ‘a deep-seated conviction of free men and women about the way in which justice should be administered’. 

However, this widely accepted conception of the jury is relatively recent. Less than 100 years ago, juries were a place reserved solely for propertied white men. While the gender barrier was removed in the latter half of the twentieth century, and class barriers generally ended slightly earlier,6 race-based obstructions have proved more obstinate. Indigenous political disenfranchisement caused Indigenous presence on the electoral roll (and so on the jury roll or list) to be a work-in-progress taking (and continuing to take) decades. Non-enrolment on the electoral roll is a significant factor in the absence of Indigenous Australians from jury pools, jury panels and jury rooms. But there are also other major pressure points within jury legislation – as well as beyond it – that contribute to this diminished jury franchise. 

It is important to appreciate that the law and processes relating to Australian juries are not easily accessible. This is in part because Australian case law addressing challenges to the jury array tends to focus on restating the primacy of the governing statutory instrument, and as discussed below, this means that its emphasis is on the statutorily prescribed process of random selection as reflective of a ‘representative’ jury. Each Australian state and territory has its own legislation, and while jurisdictional differences can be small, detail is key – and it is a laborious exercise to trawl through legislative minutiae, to ascertain local practices, whilst also appreciating the historical context of the legislation and many of these practices. However, in the absence of direct comprehensive information and rigorous statistical data, this is the only available window into actual practices. ... 

Law reform State and Territory law reform bodies have addressed the issue of jury selection on numerous occasions.  In their reports Indigenous representation has arisen for consideration. Reports include those by the ALRC and by the Western Australian, Queensland, Northern Territory,  and New South Wales  law reform bodies.   

In summary, these law reform bodies have recommended:

• developing strategies to increase the number of Indigenous people on the electoral roll. 

• supplementing the electoral roll for the purposes of compiling jury lists with names from Centrelink and motor vehicle registry databases. 

• amending jury legislation to allow for additional methods of service for jury summons. 

• reducing disqualifications based on criminal history. 

• monitoring/reviewing peremptory challenges. 

• providing, where appropriate, support mechanisms instead of disqualifying potential jurors. 

• providing, where needed, support with travel and accommodation (practical and financial) for people from Indigenous communities when they are summoned for jury service to attend court. 

• reviewing jury district boundaries. 

• establishing strategies to facilitate the return of juror questionnaires. 

• considering, where absent, the introduction of a statutory power to enable trial judges to respond to an apparently unfair jury composition jury. 

• providing culturally appropriate educational programs within Indigenous communities that promote jury service. 

• conducting research to determine the extent of representation of Indigenous people on juries and the factors impacting on their jury participation.   

Next steps 

Legislation can correct many of the points of disproportionate and inappropriate impact on potential First Nations jurors identified by this report. However, we recommend a full-scale evaluation process be undertaken with broad Indigenous community consultation. Principles of self-determination require that Indigenous voices and perspectives lead and shape changes to make equality of Indigenous representation on juries an everyday reality. To this end, Ontario, Canada offers useful illustrations of such initiatives.   

We identify the following as the major pressure points in the law and its processes compromising Indigenous representation on juries: 

Non-inclusion on jury lists

• Non-inclusion on the electoral roll 

• Inadequate updating to the electoral roll 

• Insufficiently inclusive jury district boundaries 

• Jury summons non-delivery

Removal from jury lists – Disqualifications & exclusions/exemptions 

• Criminal history disqualifications inappropriately extensive 

Elimination from the jury: Challenges, excusals and self-eliminations 

• Jury summons non-responses and/or excusal requests — Financial burden – e.g., travel and/or arranging alternative care for family or others — The jury summons failing to adequately communicate 

• Peremptory challenges 

• Prosecution stand asides 

• Caring responsibilities in the extended family and in the community 

• Disproportionate chronic health problems 

• Other issues — Language challenges — Fear, alienation and distrust of the criminal justice system — Cultural constraints: e.g., extended kinship, community ties.

The authors conclude 

All-white juries, like Australia’s all-white judiciary and legal profession, were a matter of course for most of the twentieth century and non-Indigenous Australians continue to dominate these places. With the jury, the racial divide has been aided by statute, by case law and by social and economic divides from the very beginnings of the jury system in Australia. This position has been normalised by jury legislation that until late last century discriminated against women as well as ‘non-Europeans’,  and against those who lacked property. This discrimination was justified by the notion that a jury of peers meant merely that a defendant was not tried by his ‘inferiors’.  Explicit gender- and race-based exclusions lasted until well into the 20th century.  Race-base exclusion of Indigenous Australians was comprehensive because, until the latter part of the twentieth century, they were unable to enrol on the electoral roll: the only source of jury lists. They currently remain under-represented on the electoral roll and, due to their over-representation in the criminal justice system, they are likely to be disproportionally disqualified by legislative provisions limiting eligibility for jury service for those with a criminal history. 

This review has indicated the myriad of ways in which Indigenous Australians are disproportionately excluded from participating on juries. It has also shown how Australian law reform bodies have reviewed jury selection and provided recommendations directed to improving First Nations Australians’ representation on jury lists, panels and juries – yet legislatures have been largely unresponsive to implementing change. Indigenous under-representation remains, to a significant degree, the product of systemic inequalities in the jury selection process, and without appropriate representation, as prominently displayed by the Yuendumu community following the Rolfe trial, First Nations people cannot have confidence in the criminal justice system. This disenfranchisement and the inertia that permits it to continue cannot be acceptable. We began this survey adopting six guiding principles. Two of these are the principles of inclusiveness and of responsiveness to local conditions. The Australian jury system has continued to be influenced by its English heritage. As the LRCWA noted of the 1898 parliamentary debates in Western Australia, ‘nothing ... suggests that service on juries by Aboriginal people was contemplated by legislators at that time’.  However, despite the eventual formal extension of jury franchise equality to Indigenous Australians towards the end of the 20th century, the Australian system has relied on random selection as the legislatively prescribed mechanism for achieving representative juries. Yet its actual application requires equal opportunity to be called for jury service. Hence, the Australian jury system fails to make a genuine attempt to provide for all Indigenous Australians. 

 It becomes self-evident, then, that exclusion from the jury system is one more way in which the ‘profound social, economic and political marginalisation’  of Indigenous Australians is manifested. The exclusion of First Nations from juries joins their political disenfranchisement via their under-inclusion on the electoral roll, with their disproportionate levels of ill-health and criminalisation, and their financial precarity. These are all features of systemic inequality, borne out of the impact of colonisation. For this reason we echo the views expressed by ATSILS (Qld) to the QLRC, and quoted in the Commission’s 2011 Report: We view increasing levels of education and literacy, decreasing incarceration rates and encouraging people to register to vote as just some of the important longer term options to increase Aboriginal and Torres Strait Islander peoples presence on juries. ... We do not view rectification of the exclusion of Aboriginal and Torres Strait Islander people occurring without meaningful changes. 

For the two remaining issues — shifting inertia and embarking on reform through a process that is Indigenous-led and collaborative — we suggest an appropriately resourced and national focus is highly desirable because First Nations representation on juries is an issue of national importance. To this end, we support the 2006 recommendation from the ALRC Uniform Evidence Law that the Standing Committee of Attorneys-General initiate an inquiry into the operation of the jury system. Its recommendation suggested including such matters as eligibility, empanelment, warnings and directions to juries and envisaged such an inquiry would involve law reform bodies from Australian states and territories.  As this report indicates, jury eligibility and empanelment are topics large enough for separate consideration to warnings and directions, particularly as Indigenous under-representation should be a focal point. The failure of parliaments to enact many of the important recommendations by law reform bodies to date is clearly a potential major concern for a future inquiry, suggesting that the process should not be rushed. It should be well-informed and planned, and engage the executive and the legal profession with a shared appreciation of its major goals. We note that the AEC began recording and publishing estimates of Indigenous enrolments on the electoral roll only relatively recently, but by doing so the AEC has been able to assess progress and adapt its strategies to improve Indigenous enrolment. In preparation for an inquiry, it should be a priority in every state and territory to maintain and make publicly available (for example, through courts’ annual reports) statistics on Indigenous representation on juries. These will enable trends to be identified as well as for strategies – aimed at improving Indigenous representation measured as part of a regular evaluation of their effectiveness – to be developed. A detailed review of overseas experiences directed to enhancing Indigenous participation on juries is a worthwhile first step. 

Overall, law reform bodies, case law and academic commentary reveal a multi-pronged approach is required:

• to review legislative and regulatory provisions in terms of: — critically analysing peremptory challenges and stand asides; — rationalising criminal history disqualifications; — ensuring jury district boundaries are inclusive of all communities; — developing strategies based on an ethos of support rather than of exclusion, expulsion, or criminal penalising for non-compliance. 

• to improve communications and understanding: — by collaborating with Indigenous agencies, organisations and experts to improve enrolment and response to summons and any other communication issues. 

Importantly, a national enquiry has no reason to replicate previous law reform bodies’ collation of past recommendations as these are based on sparse data — the inevitable consequence of the failure to maintain statistical data of Indigenous-identifying jurors at every stage of the selection process. Instead, a sound data-base should be established. Such a base would include key statistical data relating to Indigeneity in all Australian states and territories, and establishing ongoing collection of such statistics: — on jury lists — summonsed for jury service — forming the jury pool, i.e. including figures for categories of disqualifications, exemptions and excusals, and — empanelled jurors. 

In terms of ensuring Indigenous leadership and collaboration, the Ontario Debwewin approach provides a useful procedural template and strategies. The Debwewin consultations included recommendations to create Elders and Youth Councils, increasing specialty courts, and the appointment of an Assistant Deputy Attorney General position responsible for Aboriginal issues, as well as incorporating the more typical consultation process with Indigenous organisations and communities, as well as other key stakeholders within the legal system. These features will ensure a comprehensive review process is grounded in the best-available statistical and community-informed information. 

Broadly speaking, the diversity of approaches across Australia do not reveal a rich mix of experimentation and development. Instead, criminal disqualifications, excusals, exemptions and jury district boundaries at times reflect a grab bag of conservative ideas, that at times disconnect from the desirability of ensuring equality of representation, inclusion and participation. As the Canadian Debwewin initiatives indicate, when seeking to provide culturally safe environments it is important to incorporate strategies that can build confidence in the jury, in courts and the justice system generally. This may take time, but such broad-based initiatives are necessary to meet the apparently intractable challenges of language, mistrust and remoteness. Noting the Debwewin reference to speciality courts, it is important to acknowledge the reality that some of the most difficult challenges may be best met through alternative structures to the current jury trial. How this is achieved, and what contexts it may operate in, are for further consideration, keeping in mind the capacity of modifications to enhance self-determination.

Identity Resilience

The new National Strategy for Identity Resilience replaces the 2012 National Identity Security Strategy. It features Shared Principles for Resilient Identities -

 1 Seamless Commonwealth, state and territory digital ID systems will support identity resilience 

Digital IDs provide a highly secure credential which can be used to prove identity online. They can reduce the amount of information you share, as they allow you to share only the information needed, which means you do not need to share all the details of a valuable identity document such as a passport. Governments will work together to achieve interoperability between digital ID systems and credentials so that Australians can access services in any jurisdiction. 

2 Identity needs to be inclusive 

Australian governments are committed to supporting vulnerable cohorts to access services, and to supporting Australians that choose not to use digital services or credentials. Indigenous Australians, people from culturally and linguistically diverse communities, and people with disabilities are disproportionately targeted by certain types of scams, and may also have more difficulty accessing or understanding ways to remediate compromises to their ID. Older Australians are also vulnerable and reported the highest losses to scams in 2021, and may be less likely to adopt digital credentials or other technologies. Where practical, Australian governments are committed to providing digital and non-digital options so that individuals have a choice in how they manage their identity. 

3 Individuals, industry and government have a role to play 

Individuals, industry and government all have roles to play in achieving identity resilience. Individuals need to know how to protect their identity and be empowered to proactively respond to identity misuse. Industry and governments can strengthen identity resilience by adopting best practice for preventing, deterring and responding to identity misuse, and by actively coordinating efforts to improve and promote education on identity resilience, secure cyber practices and support services. 

4 All jurisdictions will work towards consistent high national standards 

Individuals need to have secure and trusted identity credentials regardless of who they are issued by. Australian governments will develop stronger, nationally consistent standards for issuing physical and digital credentials. Australian governments will also ensure that identity credentials have security measures that make them resilient. 

5 Biometric establishment and verification of identity with consent can improve resilience 

Where appropriate, and with an individual’s consent, Australian governments will use biometrics to make it harder for criminals to misuse identity credentials. Combinations of biographic attributes (e.g. name, date of birth and licence number) do not adequately protect Australians from identity crime, and can be exposed in a data breach. Passwords can be forgotten, stolen or compromised. Australian governments will protect personal privacy and secure data in regards to the use of biometrics. 

6 All jurisdictions will allow an individual to update their information conveniently across agencies 

Currently, an individual who changes their name or moves house has to update each credential individually, and often does not. As a result, their personal details may differ between government agencies and jurisdictions, which increases the potential for identity fraud. Australian governments will work towards enabling individuals to update their credentials in a more streamlined and convenient way, if the individual wishes to do so. 

7 Less data collection and retention 

Large data breaches have demonstrated the risks associated with large stores of personal information and of retaining copies of credentials. We need to consider the likelihood of future data breaches when deciding what we collect and retain. Digital IDs, digital credentials and government services like the Document Verification Service, allow government agencies and businesses to verify identity while minimising their collection of personal information. Australian governments will support businesses and government agencies to collect and retain less personal information where appropriate. This will be balanced against existing and legitimate needs relating to law enforcement and regulatory regimes. 

8 Clear data-sharing arrangements 

To support individuals impacted by large scale cyber incidents and data breaches, governments need to be able to collect and share data. Australian governments will work to put in place data-sharing arrangements to better protect victims of cyber incidents and data breaches. 

9 Consistent revocation and re-issuance 

Across Australia there are different processes for revoking and reissuing credentials. This makes it harder for a victim of identity crime to recover, especially when they have to engage with multiple Commonwealth, state and territory agencies and the private sector. Australian governments will work towards streamlined and consistent processes for remediating compromised identity credentials to reduce the burden on victims. 

10 Clear accountability and liability 

Liability for the cost of remediating credentials compromised in a data breach, cyber-attack, or other identity crimes needs to be clear, along with appropriate enforcement actions. The lack of clear accountability can delay mitigation measures when responding to a data breach. The solution should minimise further harm to the individual whose data was compromised.

the Strategy document states 

Building on existing work and being future ready 

To give effect to the above principles, Australian governments have committed to the following short, medium and long term initiatives. Plans for implementing the initiatives will be considered by the Data and Digital Ministers Meeting. The Data and Digital Ministers Meeting, a sub-committee of National Cabinet, will also oversee the implementation of the initiatives. Building on the innovative and leading edge work of the Commonwealth, states and territories, the initiatives include the elevation of existing projects to the national stage. They complement initiatives that support identity resilience, which are in development or already in operation, but have not been included in this Strategy. These include, for example, the Commonwealth’s myGov and myGovID systems, the Trusted Digital Identity Framework, ID Support NSW, and the Australian Death Check. 

Short term initiatives (Up to 12 months to implement) 

Update of the National Identity Proofing Guidelines 

Australian identity proofing standards need to be fit for purpose and used consistently across the country. The National Identity Proofing Guidelines (the Guidelines) provide guidance for government and private sector organisations on proofing the identity of individuals. The Guidelines will be updated and aligned with the Trusted Digital Identity Framework to support consistent processes across digital and non-digital credentials. This will help to address longstanding inconsistencies in identity management practices between jurisdictions; support less collection and retention of data; and build confidence in the use of Commonwealth, state and territory digital ID systems. 

Cohesive national approach for responding to the identity security aspects of data breaches 

Large-scale data breaches and cyber incidents have demonstrated the need for a cohesive national response to the identity security aspects of data breaches, to minimise the damage caused and to expedite the recovery of individuals’ identities. This initiative will seek to establish a Centre of Excellence to increase the speed and efficiency of responses to the identity security aspects of significant data breaches. This will be a single and highly visible point of expertise that supports the management of the identity security aspects of breaches at a Commonwealth level, and works with state and territory bodies, to minimise the harm for individuals, businesses and governments. 

Identity resilience education and awareness 

Education and awareness can help build individual, industry and government resilience. A range of education and awareness programs exist across the Commonwealth, states and territories. These include the Australian Competition and Consumer Commission’s Scamwatch and awareness information delivered by ID Support NSW. Improving consistency and coordination at a national level will increase the effectiveness of these programs. This initiative will focus on amplifying and coordinating existing education and awareness efforts to better protect Australians. 

Medium term initiatives (1-3 years to implement) 

Credential Protection Register 

When a credential is discovered to have been compromised it can take a long time to remediate. During this time, criminals can continue to misuse the credential. In October 2022, the Commonwealth established the Credential Protection Register to prevent the Identity Matching Services verifying a compromised credential that has been listed on the Register. This initiative will seek to further develop the Credential Protection Register, for example to allow individuals to have better control of their credentials, and also to improve the sophistication of the Register. 

Mobile phone trust scores 

Mobile phone numbers can be integral to identity authentication (for example when used in multifactor authentication) and as an alternative to using email and social media to contact a client. However, they can also be used for identity takeover and fraud. A ‘Mobile phone trust score’ system would allow telecommunication providers to assign trust scores to mobile phone numbers based on risk factors such as recent sim swaps, tenure of phone plan and virtual private numbers. The trust score will help to prevent mobile phones being used to facilitate fraud. 

Long term initiatives (3-5 years to implement) 

Reissuing Digital Credentials through Digital wallets 

Digital Credentials (for example Working with Children Checks or mobile driver licences) are important for identity resilience. It is cheaper, easier and quicker to reissue a digital version of a compromised credential than a physical one. The development of digital credential standards is vital to ensure consistency of data, user experience and interoperability, while maintaining choice and privacy. This initiative will look at addressing technical and legislative differences and barriers across jurisdictions to help reduce fraud, improve customer experience and reduce duplication of effort. This initiative can also inform upcoming digital credential projects so that they are ready for digital wallets at launch. 

No wrong doors for identity remediation 

Individuals should be able to engage with one government organisation in order to fully and quickly recover their identity. This could include regaining control of online accounts, revocation and re-issue of credentials, and protective measures for compromised credentials. Some states and territories have already established comprehensive support services that operate within their jurisdiction. This initiative will focus on a cross-jurisdictional approach to improve the experience for individuals, reduce further harm and enable full identity recovery. 

Strong, consistent commencement of identity records 

Commencement of identity records such as birth certificates, and immigration records for Australians born overseas, are issued by different jurisdictions and are not always linked to change of identity (e.g. change of name) processes in other jurisdictions. This initiative will explore how jurisdictions can work together to improve the integrity of identity records, and provide every Australian with an accurate commencement of identity record updated for life events. 

Implementation 

Realising the intent of the Strategy will require a strong focus on cross jurisdictional collaboration, application of the principles, and the implementation of the initiatives. Under the oversight of the Data and Digital Ministers Meeting, and in close collaboration with all Australian governments, the Commonwealth, through the Department of Home Affairs, will coordinate the implementation of this Strategy. A detailed plan, including resources required, will be developed for each initiative for consideration and approval by the Data and Digital Ministers Meeting. 

Assessing effectiveness 

In implementing this strategy, effectiveness will be assessed by progress made towards implementation of the initiatives, and the effectiveness of these outcomes. An annual report will be provided to the Data and Digital Ministers Meetings on the effectiveness of the Strategy, associated policy and legislation, and follow-on actions required to ensure that Australians’ identities are resilient.

Document Execution

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.