THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
Second Reading Speech
Statutory Declarations Amendment Bill 2023
The Statutory Declarations Amendment Bill may seem unassuming and modest, but, make no mistake, it will have an impact.
Each year Australian small-to-medium businesses and individuals spend an estimated 900,000 hours executing more than 3.8 million statutory declarations.
These documents are used to create reliable statements and attest to events for administrative, civil, commercial and private purposes, whether it be to:
- provide evidence to support an application for sick leave
- accompany an application for child support or other government service, or
provide evidence of facts in administrative proceedings, including those before a dispute resolution body or administrative tribunal.
Historically, these documents have been strictly paper based, requiring ink signatures and in-person witnessing for valid execution.
Following the successful pivot to digital processes in response to the COVID-19 pandemic, the Australian community, and businesses in particular, expect government to offer innovative digital solutions and pathways that modernise old systems and established processes.
The bill will go some way to meeting those expectations.
The bill will establish a framework for making Commonwealth statutory declarations that is fit for purpose and less cumbersome and reflects the way that Australians want to engage and communicate digitally.
The bill will allow a statutory declaration to be executed in one of three ways:
- traditional paper based execution, using ink signatures and in-person witnessing
- electronically, by allowing electronic signatures and witnessing via an audiovisual communication link, and
- digitally verified, through the use of an approved online platform that verifies the digital identity of the declarant through an approved identity service.
The three methods of execution will be equally robust and result in an equally valid and legally effective Commonwealth statutory declaration.
Importantly, the bill responds to community feedback on the advantages of modernising the execution requirements for these solemn documents and in providing choice in relation to their execution.
The bill will particularly benefit those who face barriers engaging with paper based processes, such as those in rural, remote or regional parts of Australia, and those Australians experiencing low mobility or sensory concerns.
Those without adequate access to technological devices or internet connectivity, or those who simply prefer not to engage with the electronic or digital execution options, will not be disadvantaged by this bill. The traditional paper based method of execution will continue to be available.
Electronic execution
The COVID-19 pandemic demonstrated that technology can be used successfully and reliably to facilitate the making of Commonwealth statutory declarations.
The bill will make permanent the temporary measures put in place during the pandemic that allow a Commonwealth statutory declaration to be witnessed remotely via video link and signed electronically.
These measures were introduced to assist individuals who, as a result of the pandemic, were either unable to meet in person to have a statutory declaration witnessed or could not meet in person because of stay-at-home or other restrictions on movement.
The temporary measures provided for the continuity of business operations and government services during the COVID period, without compromising the solemnity or integrity of the Commonwealth statutory declarations framework.
Stakeholders have told us that the temporary measures save time and money, and provide convenience and flexibility. This bill will ensure Australians continue to enjoy the benefits of these temporary measures enabling electronic execution after they expire on 31 December this year.
Digital verification method
The Australian government is committed to its vision of delivering simple, secure, and connected public services for all people and business through world-class data and digital capabilities.
Since 2021, across various forums, business and community stakeholders have consistently told government that they want use technology, such as digital identity frameworks, to engage with legal documents like statutory declarations in new ways.
Australians want to engage digitally to access government services, and expect that government is responsive to the changing technological expectations of the community.
This bill responds to this feedback by introducing a digital verification method for making a Commonwealth statutory declaration.
The economic case for allowing statutory declarations to be executed digitally is also strong. Research undertaken in 2021 estimated that digital execution could result in time and cost savings of over $156 million per annum across the economy.
The bill will allow a person to leverage their digital identity to make a statutory declaration, end-to-end online, on their computer, smartphone or other portable device.
Framework
To future-proof the act, the bill will provide a framework that will set out the requirements to execute a Commonwealth statutory declaration through digital verification, with technical requirements and conditions to be prescribed by regulation.
The framing of these provisions is important, noting the ever-evolving nature of technology and the need for the government to respond quickly to these changes as they arise.
Requirements
Like the other methods of execution, the digitally verified statutory declaration will require use of the prescribed form, which must be signed by the declarant.
Unlike the other methods, there will be no requirement that the declaration be witnessed, in-person or via audiovisual link.
Instead a number of requirements and conditions will be imposed by the framework, through the bill and through regulations, that together achieve the legal purposes behind witnessing and provide legal certainty and surety to requesting entities. These include:
Identity verification—the declarant will be required to verify their identity to a prescribed identity proofing standard each time they make a declaration through an approved identity service, such as myGovID.
Evidence of execution—the declaration must be made through an approved online platform, which would be required through regulations to include information on the statutory declaration confirming that it was validly executed in accordance with the requirements of the act, including through the use of an approved identity service, the platform it was executed on, and the time and date the declaration was made.
If there is a dispute about whether a digitally verified statutory declaration is bona fide, a third party will be able to verify its execution through the PDF version of the declaration, which the regulations will require include a digital certificate that is encrypted to provide authentication details that verify the declaration was, in fact, made through the online platform.
Through robust technological processes, the digital option will negate the need for physical witnessing while still satisfying the underlying rationale for witnessing requirements.
Safeguards
The government recognises that it must ensure that any digital option produces a legally effective document within appropriate safeguards that mitigate against fraud and the misuse of personal information.
Statutory declarations may contain a large volume of personal information and this bill introduces new ways of executing statutory declarations that engages with technological services. The bill therefore contains a number of safeguards to protect Australians' personal information, and maintain confidence in the framework, including:
- An obligation that an approved online platform not retain any copy of a statutory declaration that is made using its service. This is consistent with the process for paper declarations where the witness does not keep a copy of a statutory declaration made before them.
- If the approved online platform fails to comply with this prohibition, their approval to provide the service can be revoked.
Subsection 14(3) of the bill lists the matters that the minister must be satisfied of before prescribing a digital service to be an approved online platform or identity service, including being satisfied that the entity operates in a way that complies with the Privacy Act, the effectiveness of the entity's protective security (including security governance, information security, personnel security and physical security) and fraud control arrangements. There is also an ability to prescribe further matters for consideration under this provision.
An approved online platform will be required to report annually to the minister on the use of the platform, including how many statutory declarations were undertaken using the platform in the financial year, compliance with the requirement not to keep copies of statutory declarations and to report any eligible data breach within the meaning of the Privacy Act. This report must be tabled in parliament, and will be accessible to the public.
Finally, two years after commencement, the act must be reviewed. The review must consider if the digital option is working as intended to allow Australians to make statutory declarations online safely and securely.
The provision enabling the minister to prescribe further standards that a prospective digital service must meet will provide the ability to require:
- that an approved identity service be accredited under the Trusted Digital Identity Framework and onboarded to provide identity services within the Australian Government Digital ID System (the AGDIS), and
- that an approved online platform be a participating relying party operating within the Australian Government
Digital Identity System (AGDIS).
Being accredited under the Trusted Digital Identity Framework will ensure that entities meet strict requirements for privacy protection, security, risk management and fraud control. The Australian Government Digital Identity System has been designed to protect privacy and security so that the individual is able to control their personal information.
This means that, at least at first, the government will be able to prescribe myGov as an approved online platform and myGovID as an approved identity service able to verify a declarant's identity to a prescribed identity level.
Through prescribing entities and requirements, the bill will have the flexibility to adapt and grow with any expansion of the Australian Government Digital Identity System to the private sector and states and territories. However, noting that digitally verified statutory declarations are a first of their kind, the government would carefully consider the appropriateness of prescribing other providers.
As I mentioned, copies of statutory declarations and personal information associated with the declaration will not be stored on the approved online platform or any other database. The approved online platform will only keep the minimum de-identified data required to verify execution in accordance with the requirements in the bill.
Australians will be able to be confident that the digital option is robust and reliable, and that their personal information is secure and protected.
Conclusion
In conclusion, the bill modernises and reimagines how individuals and businesses engage with solemn documents and, through extension. with the Australian government.
This bill will provide the framework for a standalone digital statutory declaration execution service that will leverage established Australian government digital infrastructure to allow Australians to safely and securely make a statutory declaration end-to-end online.
Consistent with the principle of consent that underpins the Australian government digital ID system, the bill will also continue to provide options from which Australians can choose based on their personal circumstances and preferences, including electronic execution and traditional paper-based execution.
This bill will respond to how Australians want and expect to engage and communicate digitally with government by providing options to make Commonwealth statutory declarations facilitated by technology.
This bill is an important milestone in driving the digitisation of government services. It will deliver a world-class, simple and secure public service for all Australians.
I commend the bill to the House.
