Witnessing documents: Statutory declarations vs. Affidavits

Witnessing Documents: Statutory Declarations vs. Affidavits in New Zealand

In New Zealand, statutory declarations and affidavits are formal written statements used for various legal purposes, each requiring specific witnessing procedures to verify their authenticity. Both types of documents are made under an oath or affirmation, meaning the person making the statement confirms its truthfulness and acknowledges potential legal consequences for falsehoods.

What is a Statutory Declaration?

A statutory declaration is a written statement of fact made by an individual, solemnly declared to be true in the presence of an authorised witness [Source: Oaths and Declarations Act 1957, s 7(1)]. It is typically used to confirm information for administrative purposes, such as proving identity, confirming personal circumstances, or satisfying regulatory requirements, where an oath is not strictly required. The person making the declaration is known as the declarant.

Key Legal Rules for Statutory Declarations:

Form: A statutory declaration must generally be in the form set out in the First Schedule of the Oaths and Declarations Act 1957, stating that the declarant believes the statements within the document to be true [Source: Oaths and Declarations Act 1957, s 8].
Who can make one: Any person who understands the nature of the declaration can make a statutory declaration.
Who can witness one: A statutory declaration can be witnessed by a range of authorised persons. These include [Source: Oaths and Declarations Act 1957, s 9(1)]:
- A Justice of the Peace (JP).
- A lawyer (also known as a barrister and solicitor of the High Court).
- A Notary Public.
- A Registrar or Deputy Registrar of the High Court or a District Court.
- A member of Parliament.
- Various other officials listed in the Act, such as specified government employees or Commonwealth representatives overseas.

Obligations of the Declarant:

The declarant must personally appear before the authorised witness.
The declarant must understand the contents of the declaration.
The declarant must sign the declaration in the presence of the witness [Source: Oaths and Declarations Act 1957, s 9(1)].

Obligations of the Witness:

The witness must confirm the declarant's identity.
The witness must be satisfied that the declarant understands the document's content and its implications.
The witness must ensure the declarant freely and voluntarily signs the declaration in their presence.
The witness must then sign the declaration themselves, certifying that the declaration was made before them [Source: Oaths and Declarations Act 1957, s 9(1)].

What is an Affidavit?

An affidavit is a formal written statement of fact made under oath or affirmation (a solemn promise to tell the truth, used by those who object to swearing an oath for religious or conscientious reasons) [Source: Oaths and Declarations Act 1957, ss 13, 15]. Affidavits are primarily used as evidence in court proceedings in the High Court, District Court, and other tribunals [Source: High Court Rules 2017, Rule 9.8; District Court Rules 2014, Rule 9.8]. The person making the affidavit is known as the deponent.

Key Legal Rules for Affidavits:

Purpose: Affidavits are generally used to present factual information to a court or tribunal in support of an application or a case [Source: High Court Rules 2017, Rule 9.8; District Court Rules 2014, Rule 9.8].
Content: An affidavit must state only facts that are within the personal knowledge of the deponent, or, if based on information or belief, the deponent must state the source and grounds of that information or belief [Source: High Court Rules 2017, Rule 9.9(2); District Court Rules 2014, Rule 9.9(2)].
Exhibits: Documents referred to in an affidavit are typically attached as exhibits, which are formally identified and authenticated by the person taking the affidavit [Source: High Court Rules 2017, Rule 9.13; District Court Rules 2014, Rule 9.13].

Who can witness an Affidavit:

Similar to statutory declarations, specific individuals are authorised to take affidavits [Source: Oaths and Declarations Act 1957, s 14(1)]. These generally include:

A Justice of the Peace (JP).
A lawyer (barrister and solicitor of the High Court).
A Notary Public.
A Registrar or Deputy Registrar of the High Court or a District Court.
A specified employee of a government department who has been authorised by the Chief Executive to take affidavits.

Obligations of the Deponent:

The deponent must personally appear before the authorised witness.
The deponent must take an oath or make an affirmation that the contents of the affidavit are true.
The deponent must sign the affidavit in the presence of the witness [Source: Oaths and Declarations Act 1957, s 14(1)].

Obligations of the Witness:

The witness must confirm the deponent's identity.
The witness must administer the oath or affirmation to the deponent [Source: Oaths and Declarations Act 1957, s 14(1)].
The witness must be satisfied that the deponent understands the contents of the affidavit and its implications.
The witness must ensure the deponent freely and voluntarily signs the affidavit in their presence.
The witness must then sign the affidavit, adding their designation (e.g., Justice of the Peace, Solicitor) and the date, certifying that the affidavit was sworn or affirmed before them [Source: Oaths and Declarations Act 1957, s 14(1); High Court Rules 2017, Rule 9.11; District Court Rules 2014, Rule 9.11].

Key Differences Summarised

While both involve formal statements made under solemn declaration, their primary distinctions lie in their purpose, format, and the specific rules governing their content:

Purpose: Statutory declarations are for general administrative or legal purposes where an oath is not explicitly mandated. Affidavits are primarily for providing evidence in court or tribunal proceedings.
Oath/Affirmation: While both involve a solemn declaration of truth, affidavits explicitly involve an oath or affirmation administered by the witness, which is then formally recorded. Statutory declarations are simply "declared" to be true.
Content Rules: Affidavits have stricter rules regarding the type of information that can be included (e.g., personal knowledge, sources for information/belief) and requirements for exhibits, as they are intended as court evidence [Source: High Court Rules 2017, Rule 9.9; District Court Rules 2014, Rule 9.9]. Statutory declarations are less prescriptive about content beyond requiring factual statements.

Consequences of False Statements

Making a false statement in a statutory declaration or an affidavit carries serious legal consequences in New Zealand.

False Statutory Declaration: A person who makes a false statement in a statutory declaration, knowing it to be false, can be liable for imprisonment for a term not exceeding 3 years [Source: Crimes Act 1961, s 110].
False Affidavit: A person who makes a false statement in an affidavit knowing it to be false, and intending to mislead a judicial proceeding, commits perjury and is liable for imprisonment for a term not exceeding 7 years [Source: Crimes Act 1961, s 108]. If the false statement is made on oath but not in a judicial proceeding, the offence is false statement on oath with a maximum penalty of 3 years imprisonment [Source: Crimes Act 1961, s 109].

When to Seek Independent Legal Advice

When preparing or witnessing a statutory declaration or an affidavit, particularly if the matter is complex, relates to a court case, or involves significant personal or financial implications, it is recommended that individuals seek independent legal advice. Legal professionals can provide guidance on the correct form, content, and implications of such documents, ensuring compliance with legal requirements. Free legal advice may be available through organisations like Community Law Centres.

Witnessing documents: Statutory declarations vs. Affidavits