DOC-04 Statutory Declarations and Supporting Evidence
Version 9 - 03/11/2022
1 Declarations Made for the Purposes of the TLA
Unless another written law provides otherwise, a statutory declaration made for the purposes of the Transfer of Land Act 1893 (TLA) must be made in accordance with s.12 of the Oaths, Affidavits and Statutory Declarations Act 2005 (OASD Act).
Section 12(2) of the above Act specifies that the statutory declaration must be in the form of Schedule 1 of that Act.
Statutory Declarations lodged with the Registrar of Titles may be made on a Form B3 Statutory Declaration. This form may be downloaded from Landgate’s website.
If a statutory declaration is lodged with the Registrar of Titles for the purposes of the TLA that is not made in accordance with s.12 of the OASD Act, it will need to be considered on a case by case basis to determine whether or not it will be acceptable (for the purposes for which it was lodged).
Schedule 1 of the OASD Act, prescribes a form to be used when a statutory declaration is being made, as follows:
(name, address and occupation of person making the declaration)
sincerely declare as follows –
(insert content of the statutory declaration; use numbered paragraphs if content is long)
This declaration is true and I know that it is an offence to make a declaration knowing that is false in a material particular.
This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 at (place)
(Signature of person making the declaration)
in the presence of –
(Signature of authorised witness)
(Full name, address and qualification of authorised witness)
There is a printed Form B3 available for statutory declarations (see Form Example 12). It is recommended that the printed form be used for short declarations. Where the content is likely to exceed one page, the declaration should be prepared on plain good quality bond paper. In these cases, the formal attestation should appear on the last page. Other pages should be signed at the foot by the declarant and the authorised witness.
3 Witnessing Statutory Declarations
Section 12 of the OASD Act outlines a procedure to be followed by the person making the statutory declaration and the authorised witness. The person who is making the statutory declaration must in the presence of an authorised witness declare orally:
- that he or she is the person named as the maker of the statutory declaration
- that the contents of the statutory declaration are true
- that the signature or mark is his or hers; and if necessary, that any attachment to the statutory declaration is the attachment referred to in it.
After the maker of the statutory declaration has complied with the above, the authorised witness must:
- sign or personally mark the statutory declaration
- sign or initial any alteration in the statutory declaration that has been signed or initialled by the maker
- imprint or clearly write his or her full name, address and qualification as an authorised witness.
3.1 COVID-19 Remote Witnessing Provisions3
The COVID-19 Response and Economic Recovery Omnibus Act 2020 (CRERO Act) was enacted to provide for, among other things, assisting in overcoming of problems and impediments arising from the emergency response to the COVID-19 pandemic.
Due to COVID-19 restrictions when a statutory declaration is required to be executed in the presence of a witness, the CRERO Act provides that the witness is present if they and the person executing the document are able to see and hear each other, whether by audio-visual communication (e.g. Skype, Zoom, Microsoft Teams etc) or in person.
3.1.1 Signing a statutory declaration as a witness by audio-visual communication
The witnessing requirements are satisfied if the witness:
- satisfies themselves that the declaration they are about to sign as witness is a copy of the declaration being executed; and
- is satisfied that the declaration is executed as required
- endorses the copy of the declaration with a statement that it was executed in accordance with the relevant section of the CRERO Act which provides for audio-visual communication witnessing.
The witness must sign the declaration while the witness and person executing the declaration are still able to see and hear each other by audio-visual communication. If it is not practicable to do so, as soon as practicable afterwards.
3.1.2 Lodging of Documents witnessed by audio-visual communication
The original signed declaration and the counterpart declaration signed by the witness will need to be lodged jointly as proof of the execution of the declaration.
This provision will expire on 31 December 20224 unless extended by proclamation issued by the Governor, on the recommendation of the Minister.
3 COVID-19 Remote Witnessing Provisions added 18/09/2020
4Date changed from 2021 to 2022 on 18/01/2022
3.1.4 Who cannot witness your statutory declaration6
You cannot witness your own statutory declaration, even if you are an authorised witness.
A person who was an authorised witness but has retired or changed to an occupation that is not listed below is not an authorised witness. For example, a retired teacher cannot witness a Western Australian (or Commonwealth) statutory declaration.
This does not apply to someone who is on the roll of the Supreme Court or the High Court. They will be on the roll for life unless they have been removed. Some professional membership bodies do appoint their members for life, irrespective of employment status.
6Section added 03/11/2022
4 Authorised Witnesses inside Western Australia
An authorised witness for a statutory declaration that is made at a place in Western Australia is:
- any person described in the second column of Schedule 2 of the OASD Act
- any person before whom, under the Commonwealth Statutory Declarations Act 1959, a statutory declaration may be made.
The informal descriptions of persons described in Schedule 2 of the OASD Act are listed below:
|Academic (post‑secondary institution)||Engineer||Patent attorney|
|Accountant||Industrial organisation secretary||Physiotherapist|
|Australian Consular Officer||Justice of the Peace||Police officer|
|Australian Diplomatic Officer||Landgate officer||Post office manager|
|Bank manager||Local government CEO or deputy CEO||Public notary|
|Chartered secretary, governance adviser or risk manager||Local government councillor||Public servant (Commonwealth)|
|Chemist||Loss adjuster||Public servant (State)|
|Chiropractor||Marriage celebrant||Real estate agent|
|Company auditor or liquidator||Member of Parliament||Settlement agent|
|Court officer||Midwife||Sheriff or deputy sheriff|
|Defence force officer||Minister of religion||Surveyor|
|Electorate officer of a member of State Parliament||Paramedic||Veterinary surgeon|
1[Table updated on 03/04/2020]
Note: For the full formal description of authorised witnesses for statutory declarations refer to Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005.
5 Authorised Witnesses outside Western Australia
An authorised witness for a statutory declaration made under the OASD Act is specified in s.12(6) of that Act.
If the statutory declaration is made at a place outside Western Australia, but within Australia then an authorised witness is:
- any person who, under the law of that place, has authority to take or receive a statutory, solemn or other declaration;
- any person before whom, under the Commonwealth Statutory Declarations Act 1959, a statutory declaration may be made.
If the statutory declaration is made outside Australia, then an authorised witness is:
- a prescribed consular official who is performing official functions at that place
- a person who is a justice or notary public under the law of that place
- a person who has authority under the law of that place to administer an oath to another person or to take, receive or witness a statutory, solemn or other declaration.
A prescribed consular official means:
- an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Commonwealth Consular Fees Act 1955;
- a British consul or vice consul
- an official prescribed by the regulations to be a prescribed consular official.
The person making the statutory declaration should state his or her full name, address and occupation and, following the form provided in Schedule 1 of the OASD Act should state:
- the capacity in which the declaration is made i.e. as registered proprietor, as trustee, etc.
- where the declarant is not a party to the document, the means of knowledge for the statements made
- identify the land by legal land description (Lot on Plan and Volume/Folio) and, where a mortgage, charge or lease is dealt with, the number of the instrument to which the declaration refers4
- the facts applicable to the matters being declared
- any further information pertinent to the matters declared
- what evidence is produced or attached
- an identifying description such as a letter or number for each attachment (and that identifying description should be marked on each attachment)
- where the declaration is in support of a caveat, it must give precise details of the estate and interest claimed in the land.
4Dot point added 05/01/2022
7 Declarations by Two or More Persons
Where a declaration is made by two or more persons, they should declare jointly and severally and there should be a separate execution and attestation for each person.
8 Amendments to a Declaration
8.1 Before first execution
Where errors are noticed prior to first execution the offending words should be struck out and, if necessary, substitution made. The person making the declaration and the authorised witness must initial such amendments and then complete the formal attestation.
8.2 After first execution
Very simple errors may be amended and initialled by the person making the statutory declaration and having it re-declared before the same or another authorised witness. Major amendments should be made by preparing and executing a new statutory declaration.
9 Evidence Produced
As the evidence listed below is returned to the lodging party at the time of lodgement, it need not be formally attached to a declaration, but must be specifically referred to in the declaration (e.g. Produced herewith is a certified copy of my marriage certificate). Landgate requests that when lodging evidence that a photocopy of single sheet evidence, such as marriage and birth certificates, and the original documents, be presented to enable the photocopy to be certified ‘Original Sighted" by a Landgate Officer, with the original item being returned to the lodging party.
Death Certificates Birth Certificates
Marriage Certificates Advice of Bankruptcy
Change of Name Certificates Grants of Probate
Appointment of Liquidator Trustee Certificate
Letters of Administration
Evidence originating from outside of Australia which is not in English script is required to be accompanied by a translation of that document.
9.1 Certification of Evidence by Australia Post
The Registrar of Titles has now authorised Australia Post to certify original documents that are required as evidence to support documents lodged at Landgate. The rules pertaining to the types of evidence required by Landgate have not changed. Anyone who is required to produce original documents that are needed as evidence to support a "Landgate transaction" may now take their original documents to an authorised Australia Post outlet for certification.
Australia Post will:
- Ensure that the document is an authentic original or certified copy issued from the correct relevant authority.
- Make a photocopy of the original (all pages)
- Certify that it is a true copy of an original document sighted by Australia Post.
- Every page of the evidence must be certified.
- Australia Post will then return the Original and the "Australia Post certified copy" to the Client.
Australia Post will not send anything to Landgate. It will be up to the client to pass the certified copies onto their Lawyer or Settlement Agent or to include the certified copy when lodging their documents at Landgate.
Landgate will not accept any certified copies of evidence, unless;
- The certified copies are included within the documents that need them when they are lodged at Landgate
- The certified copy is required for an existing document that has already been lodged at Landgate. In this instance the client must always provide a current (active) Landgate document reference number before it can be accepted.
Note: This service will not be available at all Australia Post outlets and a fee will be charged for the service. For details, see the Australia Post website: https://auspost.com.au/.
9.2 Certification of Evidence by Licensed Settlement Agents and Legal Practitioners2
The Registrar of Titles will permit licensed settlement agents and legal practitioners to sight and certify copies of original supporting documents.
The following process is to be adhered to:
- The following declaration should be placed on the first page of a copy of an original document:
I hereby certify that this document type is a true copy of the original. [signature]“ [name of licensed settlement agent/legal practitioner] [license number/practicing certificate number] [date]
- it must be noted on the cover page how many pages in total there are, for example “1/3” would signify the first page of a three (3) page document. All subsequent pages must be numbered and initialled by the licensed settlement agent/legal practitioner.
- Numbering and initialling should occur at the top or bottom right-hand corner of each page.
- The declaration and all initialling must be completed using “wet ink” and not in pencil.
2[Section 9.2 added on 08/05/2020]
9.3 Court Orders and SAT Orders
Some Court Orders and Orders issued by the State Administrative Tribunal (SAT) have now started to issue electronically. Where an electronically issued Order is lodged as supporting evidence, Landgate will not certify the evidence as ‘Original Sighted’. Where it is clear that the Order was issued electronically the Order will be accepted.
Landgate will only certify an electronically issued Order where the Order contains original Duty endorsement.
9.4 Consent Letters5
Consents are required under various legislative provisions to support documents lodged for registration with the Registrar of Titles.
The Registrar of Titles and the Commissioner of Titles reserve their discretion to request originally signed consent letters, in a particular case or transaction, and the acceptance of electronically signed consent letters is subject to any legislative requirements to the contrary.
Consent Letters – electronically signed accepted
The Registrar of Titles and the Commissioner of Titles have determined that consent letters in support of land transactions are acceptable where the written consent has been obtained by being originally signed or signed via electronic means.
The evidence of the written consent presented to Landgate in support of the relevant transaction could be:
- The original, wet signed or electronically or digitally signed, consent letter
- A photocopy or scanned copy of the originally signed consent letter
- A printout or scanned copy of the electronically or digitally signed consent letter
Content of Consent letters
If a consent provided in support of a land transaction lodged for registration is by way of a letter, the letter should be addressed to the Registrar of Titles or the Commissioner of Titles and must include the following:
- be written on the letterhead of the relevant organisation (if the consenting party is an organisation/business/government department etc), which should include contact details and the ACN, if there is one.
- be signed by the consenting party or an authorised officer if the consenting party is an organisation (identified by full name and position)
- state in unequivocal terms what is being consented to. The transaction must be identified with sufficient details and include the section of the Transfer of Land Act 1893 (TLA) or other legislation that the consent is provided. The full land description/s of the certificate/s of title by volume and folio number is required. The capacity of the consenting party. Eg, (company name ACN) as mortgagee of Mortgage L112266 over Lot 650 on Deposited Plan 34101 and being the whole of the land in Certificate of Title Volume 1000 Folio 125 hereby consents to Discharge of Easement N334455 under section 129B of the Transfer of Land Act 1893.
- If the consent relates to the complete removal or discharge of a registered document, then the consent should be clear that it is provided to the complete removal or discharge of that registered document, identified by document type and document number. For example Discharge of Easement P12345.
- If the consent relates to the modification of a registered document, then the consent should be clear that it is provided to a modification of the registered document identified by document type and document number and state the particular modification. For example, Modification of Easement P12345 as follows. State the modification.
- state the date of consent
- reference the registered document number of a Power of Attorney where a registered Power of Attorney is in place to provide consent authority for the transaction the subject of the consent. Eg creation and variation of Easements and Leases.
- Consent letters signed by corporations are to be signed under the Corporations Act 2001 or by their authorised Attorney.
The responsibility to ensure the security of electronic signatures on the consent letters submitted to the Registrar and the Commissioner for transactions on the titles Register belongs to the party providing consent. Consents provided using electronic or digital signatures are acceptable with the understanding that:
- The organisation on whose letterhead the consent is being provided is bound by that consent and is authorised to bind their client to that consent; and
- The staff member who is using a digital or electronic signature is authorised by their employer to do so.
Consents Not Witnessed
Generally, consents will no longer be required to be witnessed
Evidence of Consents for ELNO lodged transactions
As consent letters form part of the supporting evidence for a land transaction, if written consent is required for a land transaction capable of being lodged through an ELNO, it is required to be retained in the usual manner and may be requested to be produced by the Registrar or Commissioner.
Note - An Electronic signature is a symbol or other data in digital format that is attached to an electronic document and applied or adopted by a person with an intent to sign. Most often eSignatures take the form of an image of a physical signature.
A Digital signature is a type of electronic signature that offers additional verification of identity and validation of the parties involved and is based on a Public Key Infrastructure technology, which provides security features to ensure the signing is trackable, auditable and that changes to the document since being signed are flagged as potential issues.
5Section added 08/03/2022
Attachments should be identified by letter or number and referred to as such in the declaration. Sequential numbering or lettering of the attachments is required where more than one is attached. The identifying description (letter or number) should also be marked on each document.
Attachments are part of the statutory declaration and will therefore be retained by Landgate.