On page 4 of the NOIM, in the tiny font underneath the signature panels, there is a list of people who can witness the signatures of the parties on the NOIM. There’s a rather confusing entry in this list for people who can witness the signatures on a NOIM signed in Australia:
Commissioner for Declarations under the Statutory Declarations Act 1959 (Cth)
This entry is perplexing, because there is no definition of Commissioner for Declarations contained in the current Statutory Declarations Act. In fact, the term “Commissioner for Declarations” doesn’t appear in the current Statutory Declarations Act at all. Go on, check for yourself, I’ll wait…
If you Google “Commissioner for Declarations under the Statutory Declarations Act 1959, you get a list of results that doesn’t clear things up at all whatsoever.
Some people think that it means anyone who can witness the signature on a statutory declaration; the 2018 Guidelines on the Marriage Act for Authorised Celebrants rules this out:
A Commissioner for Declarations is not the same as a person before whom a Commonwealth Statutory Declaration may be made – they are specifically appointed people who will have written evidence of their appointment.
Commissioners for Declarations are appointed under state and territory laws. Only some states and territories appoint Commissioners for Declarations. If the parties to the marriage wish to use a Commissioner for Declarations, the parties should check whether Commissioners exist in the jurisdiction in which they reside. The best way to do this is by contacting the relevant state or territory government where the NOIM is to be witnessed.
Further to that second point above, I did find pages from the Queensland and Tasmanian government talking about Commissioners for Declarations, but that got even more confusing; in Tasmania, for example, pharmacists are Commissioners for Declaration automatically by virtue of their registration as a pharmacist, but as we know, pharmacists cannot usually witness signatures on the NOIM.
So I thought it was time to clear this up once and for all, and I wrote to the AGD about it on 14 May:
I’m having a lot of trouble getting a grasp on exactly who is a Commissioner for Declarations for purposes of witnessing signatures on the NOIM. From my reading it looks like theCommissioner for Declarations is a state-based qualification that potentially only exists in Queensland and Tasmania. In Tasmania it seems to cover a lot of occupations, such as pharmacists and physiotherapists, that would not usually be allowed to witness signatures on the NOIM.
I would love to get some firm guidance on who is a Commissioner for Declarations for the purposes of witnessing signatures on the NOIM.
Today, on 11 June, I got a response, which given it’s less than a month is kind of amazing, but let’s not get too excited about it, because basically it’s the equivalent of them shrugging their shoulders:
Section 42(2) of the Marriage Act 1961 (Cth) provides that a NOIM may be signed by a party in Australia in the presence of a Commissioner for Declarations under the Statutory Declarations Act 1959 (Cth).
A Commissioner for Declarations is not defined in the current Statutory Declarations Act, but a definition was last inserted in the 1991 version of this Act under the former section 4 as follows:
‘Commissioner for Declarations’ means a person appointed under this Act or under a State Act to be a Commissioner for Declarations’.
The Commonwealth repealed this definition in 1991 and the Commonwealth no longer appoints people to this position. However, it may be that a person who previously held this title under Commonwealth law, still holds this title unless it has been cancelled.
While Commissioners for Declarations under State and Territory laws may witness certain legal documents including statutory declarations, due to appointment or by virtue of their profession, it is unclear whether a person who is a Commissioner for Declarations under a state law could be a witness to a NOIM, where there has been no specific ‘appointment’ as used in the former definition in the Marriage Act and Statutory Declarations Act.
If it is unclear whether a person is ‘a Commissioner for Declarations under the Statutory Declarations Act 1959’, it is recommended that a party find another witness for the NOIM such as an authorised celebrant, a justice of the peace, a barrister or solicitor, a medical practitioner or a member of the Australian Federal Police or the police force of a State or Territory.
We cannot advise when the Marriage Act will be amended to remove the reference to a Commissioner for Declarations under the Statutory Declaration Act 1959, we will however, remove this reference from the Notice itself when it is next updated.
My emphasis, obviously.
So basically, they have no idea who can witness the signatures on a NOIM under the qualification “Commissioner for Declarations under the Statutory Declarations Act 1959 (Cth)”. It’s not a thing that exists anymore, and they don’t know whether state-based appointments are actually relevant, despite what the Guidelines say.
In summary, please start ignoring that qualification on the NOIM. If you can’t witness their signatures yourself, send your couples to get their signatures witnessed by a JP, a police officer, or a GP. And let’s hope the next version of the NOIM really is updated!