The statutory declaration that holds up your progress claim

Head contractors serve progress claims monthly, and most claims are accompanied by either a supporting statement or a statutory declaration. The two are commonly treated as the same document. They are not, and the requirements attaching to each come from different sources.

This note sets out what each document is, who must sign it, who may witness it, and the errors that arise most often in practice.

The supporting statement

Security of payment legislation in several jurisdictions requires a head contractor to serve a supporting statement with a payment claim made to a principal. In New South Wales the requirement is in section 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW). In Queensland it is in section 75(7) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld).

The substance is similar in each. The head contractor declares that subcontractors have been paid all amounts that have become due and payable in relation to the work the subject of the claim. The statement is in a prescribed form, and serving a claim without one carries consequences that vary between jurisdictions. In New South Wales, serving a payment claim on a principal without an accompanying supporting statement is an offence.

The statutory requirement does not itself require the supporting statement to be witnessed. It is a statement signed by an authorised person, and is not by force of the legislation a statutory declaration.

The contractual statutory declaration

Separately from the legislation, many head contracts require the contractor to provide a statutory declaration in a form set out in an annexure, as a precondition to payment. This is common in government contracts and in the standard forms used by larger builders.

A statutory declaration is made under the relevant Oaths or statutory declarations legislation and must be witnessed by a person within the authorised class. The content overlaps substantially with the supporting statement, but the execution requirements differ.

Queensland adjudicators have considered the relationship between the two. In a 2022 decision the adjudicator observed that sections 75(7) and (8) of the BIF Act relate to a supporting statement which is “effectively the same as the Statutory Declaration required by Annexure Part H” of the contract in question. In a 2026 decision, the claimant's payment claim “Included a statutory declaration as the supporting statement required under section 75(7) of the Act.”

Contractors commonly use a single witnessed statutory declaration to discharge both obligations. That approach is generally sensible, but it means the execution requirements of the statutory declaration apply, including the requirement for a witness.

Who may witness

The authorised class depends on the law governing the declaration, and the classes are not uniform.

• Commonwealth statutory declarations have a broad list of authorised witnesses, set by the Statutory Declarations Regulations 2023 (Cth): legal practitioners, seventeen licensed occupations and some forty other categories of person, including pharmacists, accountants, police officers and bank officers with five years' service.
• Queensland declarations under the Oaths Act 1867 must be witnessed by a justice of the peace, commissioner for declarations, notary public, lawyer, or a conveyancer or other person authorised to administer an oath.
• New South Wales declarations under the Oaths Act 1900 must be made before an authorised witness, a class which includes Australian legal practitioners and justices of the peace.

Two practical consequences follow. An Australian legal practitioner is an authorised witness in every jurisdiction, which removes any question about whether the witness fell within the correct class. Separately, the witness should be independent of the declaration. A colleague who holds a justice of the peace appointment but has an interest in the payment being made is not a suitable choice.

Witnessing by audio-visual link

The temporary arrangements permitting witnessing by audio-visual link have been made permanent in most Australian jurisdictions, though the detail varies. The Commonwealth position was settled by amendments permitting statutory declarations to be executed electronically. New South Wales, Victoria, Queensland and others have their own permanent provisions, which generally require the witness to observe the signing in real time, to be satisfied the document signed is the same document, and to endorse the declaration with a statement identifying the method of witnessing.

For a head contractor this means the director who swears the declaration need not be in the same room as the witness, which is useful where that person is on site, interstate, or working outside ordinary hours.

Common errors

The problems that arise in practice are generally straightforward.

• The wrong form. The contract specifies an annexure form and a generic form is used instead. Where the contract makes the prescribed form a precondition to payment, this provides the principal with a ground to resist the claim.
• No witness. The contractual statutory declaration is treated as though it were the statutory supporting statement, signed, and served unwitnessed.
• The wrong signatory. The declaration must be made by a person with authority and actual knowledge of the matters declared. A site administrator is unlikely to have knowledge of the subcontractor payment position across the project.
• Inaccurate content. A statutory declaration is made under legislation attaching criminal penalties to false declarations. Where retention is held or a payment is genuinely in dispute, the declaration should say so rather than being executed as a formality.
• Timing. The declaration must accompany the claim. A declaration provided after the principal has queried its absence does not satisfy a requirement that it be served with the claim.

Checklist

1. Review the payment clause of the head contract and identify whether it requires a statutory declaration in a specified annexure form, separately from the statutory supporting statement.
2. Confirm which jurisdiction's law governs the declaration, and therefore who may witness it.
3. Confirm the declarant has authority and knowledge of the subcontractor payment position.
4. Reconcile subcontractor payments before the declaration is sworn.
5. Ensure the witnessing occurs, whether in person or by audio-visual link, and that the endorsement records the method correctly.
6. Serve the declaration with the claim.

Timing in practice

Progress claims cluster around the 25th of the month and month end. The declaration cannot properly be sworn until the subcontractor payment position is settled, which is often late in the day. Access to a witness at that time is frequently the constraint, notwithstanding that the declaration may be a precondition to payment of a claim of significant value.

This note is general information about how these documents operate. It is not legal advice and is not a substitute for reviewing your own contract or obtaining advice on your own circumstances.