Australian notaries are authorised, in almost every Australian jurisdiction, to take affidavits and statutory declarations and to witness other documents for Australian domestic purposes. However, in practice, notaries do not exercise that authority because, in the common law tradition, their powers have been exercised only for international purposes.
Therefore, an affidavit or a statutory declaration which is to be produced only within Australia, should be taken by a commissioner for taking affidavits or a justice of the peace and not by a notary public.
The authority of Australian notaries to take affidavits and declarations and to witness other documents for production in foreign jurisdictions derives from the laws of those foreign jurisdictions.
An affidavit is a document intended for use in legal proceedings. It contains statements of fact volunteered by the person making it (called the deponent) . Those statements must be capable of proof by the deponent, who may be cross-examined on them. It is, in effect, the written equivalent of oral evidence given from a witness box in a court. Wilfully making a false statement in an affidavit is perjury.
In some foreign jurisdictions, the term "affidavit" is used more loosely than in Australia. For example, documentation of US property transactions typically includes various "affidavits" dealing with such matters as the identity and status of the parties, the title to the land and so on, none of which is intended for use in legal proceedings.
The defining characteristic of an affidavit is the requirement for the deponent (in the US, often called the affiant) to swear on oath that the contents of the document are true. This will be apparent from wording that the deponent "makes oath and says" or "says on oath" or "having been duly sworn, states" or the like, as well as a statement at the end of the document (called a jurat) that the deponent has been sworn.
In South Australia, the typical oath for an affidavit is the Judeo-Christian oath, sworn while holding the Bible and in the name of Almighty God. Upon being tendered the oath, the deponent must say "I swear." However, it is permissible for a deponent to take an oath in any manner and form which he/she declares to be binding on his/her conscience. The latter method presents difficulties unless the notary knows precisely how to administer the particular form of oath.
An affirmation may be taken instead of an oath if the deponent objects to, or declines to take, an oath. The wording of the affirmation is similar to that of the oath but without any religious content. Upon being tendered the affirmation, the deponent must say "I do solemnly and truly affirm". An affirmation has the same legal force and effect as an oath.
The affidavit must clearly show, in its opening words, in its jurat, and in any other relevant place, the option chosen by the deponent. If it is to be sworn, there must be no reference to affirming; if it is to be affirmed, there must be no reference to an oath or swearing.
In South Australia, a statutory declaration is a document, not intended for use in legal proceedings, which contains statements of fact volunteered by the person making it (called the declarant). Wilfully making a false statement in a statutory declaration is an offence punishable by a term of imprisonment.
Each Australian jurisdiction has legislation providing for statutory declarations - the South Australian legislation is the Oaths Act 1936. Statutory declarations are used in many current and former members of the Commonwealth, including Ireland and Hong Kong SAR. Statutory declarations are unknown in most other foreign jurisdictions and will be ineffective in those jurisdictions.
In South Australia, a statutory declaration commences with the words "I ... do solemnly and sincerely declare" and ends with "And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act 1936." Upon being tendered the declaration, the declarant must say "I do solemnly and sincerely declare". Most foreign statutory declarations use very similar expressions.
A notary may witness a document which is to be produced in a foreign jurisdiction provided that the law of that jurisdiction so permits. It is important that the notary is given clear instructions from the foreign jurisdiction for strict compliance with its legal requirements.