We thank Ingrid Olbrei for her contribution to this article.
If you have a law degree, chances are you’ve had at least one friend, colleague, neighbour or client come up to you and exclaim, “oh great, you’re a lawyer – here, you can [certify, sign, witness] this document for me!”
As wonderful as it is to feel wanted (and let’s face it, based on the number of lawyer jokes out there, the legal profession is perhaps not the most beloved of all professions), have you ever stopped to wonder just exactly what it is that you can or can’t certify, sign or witness? Well, we have, and in case you have too, we’d like to share with you the below guide on who can sign what. For convenience, in addition to lawyers, we have also considered the authority of public servants and members of the Defence force to witness documents.
Oaths and affirmations are solemn promises to tell the truth; the main difference is that oaths are generally sworn by religious or spiritual persons before a deity, whereas affirmations are not made before a deity (and are therefore generally made by non-religious persons). That said, there is nothing to stop a religious or spiritual person from making an affirmation. If a person lies under an oath or affirmation, they can be charged with perjury.
An affidavit is a written statement that a person confirms to be true by swearing an oath or making an affirmation before a person who is authorised by law to witness the affidavit. Similarly, a statutory declaration is also a written statement that a person promises is true and must be witnessed by an authorised person. Although (unlike an affidavit) a statutory declaration is not made by an oath or affirmation, a false statement in a statutory declaration is a criminal offence and may result in a fine or imprisonment.
So, are you authorised to witness an affidavit or statutory declaration? Unsurprisingly, an authorised witness varies from one jurisdiction to another.
Before we explore the authority of those in the legal profession to witness documents, it is important to note that all Australian jurisdictions (except for South Australia) distinguish between a ‘lawyer’ and a ‘legal practitioner’. Specifically:
In South Australia, on the other hand, a ‘legal practitioner’ (as defined under the Legal Practitioners Act 1981 (SA)) is a person enrolled on the roll of the Supreme Court, or an interstate legal practitioner who practises in the profession of the law in the State.
The table below provides an overview of whether or not a lawyer or legal practitioner may witness a statutory declaration or affidavit in a particular jurisdiction.
Who is authorised to witness a.