Affidavits during COVID-19

An affidavit is a written statement that is sworn on oath or affirmed before a person who is authorised by law to take (i.e. witness) an affidavit.

When a person swears an oath or makes an affirmation, they are testifying that the contents of the affidavit are either:

• true and correct
• true to the best of the person’s knowledge—if the contents of the declaration are stated on the basis of information and belief.

Affidavits are most often used in courts and tribunals. A person making an affidavit is called a deponent.

Knowingly making a false statement by affidavit is an offence.

Affidavits normally need to be taken and signed in the physical presence of a lawyer, Justice of the Peace (JP), Commissioner for Declarations (Cdec), notary public or conveyancer (see the Oaths Act 1867 for more detail).

However, physical distancing requirements make it difficult for these documents to be made.

Thanks to a temporary regulation, you can now make an affidavit over video before a special witness. You can also sign the affidavit electronically if it is witnessed by a special witness over video.

You do not have to have your documents witnessed by video—you can still choose to follow the original requirements if you can safely find a witness to sign them in person.

Special witness

Only a small group of special witnesses can witness affidavits in this way.

They are:

• an Australian legal practitioner
• approved JPs or Cdecs
• a JP or Cdec employed by a law practice that prepared the document
• a notary public
• a JP or Cdec employed by the Public Trustee, if the Public Trustee prepared the document.

How it works

Whether you are signing a paper or electronic document, the process to have your document witnessed by video will be similar.

The special witness will first explain the significance of the oath or affirmation you are making and will administer it. You must then show each page of the document to the witness and sign the affidavit at the end. You do not need to sign or initial every page.

You need to make sure that the affidavit states the following in the jurat (i.e. the section at the end of the document stating when and where it was made, located immediately above where the witness signs):

• the affidavit was made, signed and witnessed in accordance with the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020
• the contents of the affidavit are either
  • true
  • true to the best of your knowledge, stated on the basis of information and belief
• you understand that providing false statements in an affidavit is an offence
• additional statements if signing electronically.

See details of the requirements in section 21A of the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020.

If signing electronically

You can choose to sign the document electronically. This means you can, for example:

• use an online document signing platform
• sign using a digital signature in your PDF reader
• paste an image of your hand-made signature into the document.

If you choose to sign electronically, your jurat must also state that the affidavit was:

• made in the form of an electronic document.
• electronically signed by the deponent (you).

Send to witness for their signature

Once you have signed the document using video conferencing technology in front of the special witness, you can either:

• send them the signed document to sign
• ask them to sign a counterpart of the affidavit (i.e. an identical copy of what you signed but without your signature).

The witness must then sign the document, copy or counterpart and return it to you—or you can ask them to send it straight to someone else. They can either sign electronically or sign the paper version of the document.

Unlike wills and enduring documents, the witness does not need to complete a special witness certificate.

Multiple versions

Making documents this way may mean more than one version of the same document is created (unless you both sign the same document electronically).

You must keep all of the following documents together:

• your original signed document
• any other version of the same document signed by the witness.

How to use the modified arrangements

If you wish to make an affidavit using the modified arrangements you can:

• get a lawyer to prepare one for you—contact the Queensland Law Society for a list of practitioners
• ask the Public Trustee to make one for you—contact the Public Trustee of Queensland
• make one yourself and then contact a special witness to help you witness it.

We will provide more information about the availability of approved JPs who can witness documents using the modified arrangements soon.

More information:

Learn more about these changes in the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020.

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