Stat decs: change is NOT about certification

RMAs become authorised witnesses

As of 18 September 2018, RMAs will be able to witness Commonwealth statutory declarations under s 8 of the Statutory Declarations Act 1959 (Cth) and Part 1 of Schedule 2 of the new Statutory Declarations Regulations 2018 (Cth) (‘the new Regulations’).

The above concerns only Commonwealth, as opposed to State/Territory, statutory declarations. Click here for more information on witnessing Commonwealth statutory declarations.

New form

The new statutory declaration form, contained in Schedule 1 of the new Regulations, has changed. It will give the option of providing the email address and/or telephone number of the person making the declaration and the person before whom it is made. Practitioners should make sure they use the form contained in the new Regulations, although it seems that the only difference between the new and the current forms is that the new one adds the following passages:

[Optional: Email address and/or telephone number of person making the declaration]

[Optional: Email address and/or telephone number of person before whom the declaration is made]

In any event, there is a transitional provision, as follows:

A statutory declaration made in the form, and before a person, prescribed by the Statutory Declarations Regulations 1993 either before, or during the six-month period starting on, the day this instrument commences, has effect, on and after that day, as if it were made in the form, and before a person, prescribed by this instrument.

RMAs should be careful

Email addresses and phone numbers are optional. But if an applicant or RMA does decide to provide either or both of them, the Department may substitute on its files those email addresses and phone numbers for the ones previously provided. That could determine what email addresses the Department sends natural justice letters to, for instance notices under s 57 and Notices of Intention to Consider Cancellation (NOICCs) under s 119 of the Migration Act. It could be argued that the Minister should not use an email address or telephone number contained in a statutory declaration, unless the declaration expressly requests the Minister to do so. But why take the risk?

Misconception

It has been suggested by some that the new Regulations are about certifying documents, more particularly documents that RMAs can already certify for migration purposes. Firstly, with respect, a piece of legislation that authorises what already is authorised does not make any sense. Secondly, when we say ‘certify a document’, we mean it as shorthand for ‘certify that a document is a true copy of the original’. That has nothing to do with witnessing a document being signed. By the way, one declares that they are witnessing a signature by writing ‘declared at… before me’ and signing the declaration. In short, the new Regulations are not about certifying documents at all. They are solely about witnessing statutory declarations.

For completeness, Reg 2.13 of the Migration Regulations 1994 reads as follows:

(1)  For the purposes of section 52 of the Act (which deals with the way in which an applicant or interested person must communicate with the Minister), an applicant or interested person must communicate with the Minister about a visa application in the way provided by this regulation

(5)  Subject to subregulation (6), a document accompanying a written communication must be: 

(a)  the original; or

(b)  a copy of the original certified in writing to be a true copy by:

(iv)  a registered migration agent whose registration is not:

(A)  suspended; or

(B)  subject to a caution; or

(v)  if the copy is certified in a place outside Australia:

(A)  a registered migration agent mentioned in subparagraph (iv)…

The above provisions under Reg 2.13 are only about certifying documents and have nothing to do with witnessing statutory declarations. Conversely, the new Regulations are only about witnessing statutory declarations.


Disclaimer: the above is a mere tentative analysis of some pieces of legislation. The above might not reflect how the Department, AAT or the courts interpret the topics discussed in this article. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au