Today’s correspondent works for

… NSW Ambulance … We recently received an email stating that we could not use Commonwealth statutory declarations for evidence for PCL and FACS leave, and we can only use NSW statutory declarations. I’ve combed through the policies and attempted to differentiate between the legalities of both stat decs, but I can’t find anything that would suggest Commonwealth stat decs aren’t an appropriate use of evidence.

If you have any insight on the matter, it would be greatly appreciated.

Statutory declarations may be made under:

  • The Oaths Act 1900 (NSW) or
  • The Statutory Declarations Act 1959 (Cth).

The essential concept, in either case, is that the declarant is promising that the contents of the declaration are true and correct at the risk of a penalty if they make a false declaration (Statutory Declarations Act 1959 (Cth) s 11; Oaths Act 1900 (NSW) s 25).  The maximum penalty for a false declaration under the Commonwealth Act is 4 years imprisonment (s 11) whereas the maximum penalty under the NSW Act is 5 years (s 25) except where the person making the false declaration seeks to obtain a ‘material benefit’ in which case the maximum penalty is 7 years imprisonment (s 25A)!

The difference between them is that the Commonwealth parliament does not have a jurisdiction to make laws on any subjects. It can only make laws on the matters assigned to it by the Australian Constitution as well as (s 51(xxix)):

… matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

The Commonwealth does not have a general power to make a law with respect to statutory declarations, but it can make a law to allow their use where it is ‘incidental’ to the other powers of the government eg to facilitate running the Commonwealth government.  Section 6 of the Commonwealth Statutory Declarations Act says:

(2)  Subject to subsection (3), a statutory declaration may be used:

(a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law;

(b) in connection with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or

(c)  in connection with the administration of any Department of State of the Commonwealth.

(3)  Subsection (2) does not authorise a statutory declaration to be used as evidence in a judicial proceeding but nothing in this section prevents a statutory declaration from being so used.

Using a Commonwealth declaration for the purposes of obtaining leave from a NSW government department is not one of the reasons listed in s 6(2).  One might think that even though s 6(2) does not ‘authorise’ the use of a Commonwealth statutory declaration for that purpose, it could still be used given the declarant has made the necessary declaration.  But s 6(3) implies that if the use is not specifically listed in s 6(2) then the declaration cannot be used for that purpose.  If the general rule was ‘although subsection (2) does not authorise a statutory declaration to be used for any other purpose, nothing in this section prevents a statutory declaration from being so used’ then there would be no need for s 6(3). Given s 6(3) is required to authorise a use outside the matters listed in s 6(2) we can infer that, apart from the circumstances in s 6(3), a Commonwealth statutory declaration can be used for the purposes listed, and only for the purposes listed, in s 6(2).

Conclusion

A Commonwealth statutory declaration cannot be used ‘for evidence for PCL and FACS leave’ where the employer is a state government entity, such as NSW Ambulance, as that is not a permitted purposes under the Statutory Declarations Act 1959 (Cth) s 6(2).

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.