The subcontractor payment declaration under AS 2124, AS 4000 and AS 4902

Every Australian Standard construction contract in common use has a clause that ties each progress claim to proof that the people further down the chain have been paid. Contractors know the clause as “the stat dec”, and on most projects it is treated as a monthly form rather than what it is: a sworn statement, made under the oaths legislation of the State, which must be witnessed by a person the law authorises to witness it.

This article sets out what the clause requires in each of the main forms, who has to sign, what is declared, why the principal wants it, how it differs from the statutory supporting statement under the security of payment legislation, and why the witnessing step is the one that goes wrong at month end. The companion article on the statutory declaration that holds up your progress claim covers the supporting statement side in more detail.

Which clause, in which form

The Standards Australia forms are copyrighted and sold under licence, so the text is described here rather than reproduced. The clause numbers below were checked against copies of the forms.

Form	Clause	What it requires
AS 2124-1992 (construct only)	Clause 43, “Payment of Workers and Subcontractors”	A statutory declaration that workers and subcontractors have been paid the moneys due and payable to them. The principal may withhold payment until it is provided.
AS 4000-1997 (construct only)	Clause 38, “Payment of workers and subcontractors”	Documentary evidence, to the Superintendent's satisfaction, of payment of moneys due and payable to workers and subcontractors in respect of the work the subject of the claim (38.1). The principal may withhold certified moneys until the evidence is given, but not more than the amount shown to be unpaid (38.2). Direct payment to an unpaid worker or subcontractor is permitted in limited circumstances (38.3).
AS 4902-2000 (design and construct)	Clause 38, “Payment of workers, consultants and subcontractors”	The AS 4000 clause with consultants added to the list, and the Superintendent's role taken by the contract administrator named in that form.
AS 4901-1998 (subcontract)	Clause 38, “Payment of workers and secondary subcontractors”	The same obligation placed on a subcontractor in favour of the main contractor, in respect of the subcontractor's own workers and its secondary subcontractors.
AS 4903-2000 (design and construct subcontract)	Not verified for this article	The design and construct subcontract is understood to follow the same pattern as AS 4901, but the clause number was not checked against a copy of the form and is not stated here.

One point is worth being precise about. The unamended AS 4000, AS 4902 and AS 4901 clauses ask for documentary evidence of payment, not for a statutory declaration in terms. A statutory declaration is the conventional way to give that evidence, and the amended versions of these forms issued by government agencies and larger principals almost always convert the requirement into a mandatory statutory declaration in an annexed form, sometimes with a schedule of subcontractors attached. AS 2124-1992 refers to a statutory declaration directly. In practice, then, the document is a statutory declaration under nearly every head contract in use, but the source of that requirement is often the annexure or the special conditions rather than the standard clause. Read your own contract.

Who signs, and on what basis

The forms in circulation generally require the declaration to be made by the contractor itself, where the contractor is a natural person, or otherwise by a director, secretary or authorised officer of the contractor. The declarant swears or affirms to matters of fact: that workers and subcontractors have been paid, or that identified amounts have not been paid and why.

That has a practical consequence which is easy to overlook. The person signing must actually know the payment position. A statutory declaration is made under legislation that attaches criminal consequences to a false declaration, and the declarant, not the company, is the one exposed. A contracts administrator who signs because the director is unavailable, without having reconciled the creditors ledger, is in a poor position if a subcontractor later produces an unpaid invoice dated before the declaration. The right signatory is a director or a senior officer who has the ledger in front of them and has checked it.

What is declared

The substance varies between annexure forms, but the recurring elements are these:

• that all workers employed by the contractor, and by its subcontractors, on the work the subject of the claim have been paid all moneys due and payable to them;
• that all subcontractors have been paid all moneys due and payable to them in respect of that work, or, where they have not, the name of the subcontractor, the amount unpaid and the reason it has not been paid;
• in some forms, that all workers compensation, superannuation, long service leave and similar statutory obligations have been met;
• in some forms, a schedule listing every subcontractor engaged on the project and its payment status.

The “or the amount and reason not paid” limb matters. A declaration is not a formality to be executed in the same terms every month. Where retention is held, where an amount is in genuine dispute, or where a subcontractor's claim has been assessed at less than the amount claimed, the declaration should say so. A declaration that everyone has been paid, sworn while a back-charge dispute is running, is a false declaration, and the fact that the principal would probably have paid anyway is no answer.

Why the clause exists

The clause is the principal's protection, not the contractor's. A principal who pays the head contractor in full has no direct contract with the subcontractors, but it is exposed to them in several ways: to claims under the security of payment legislation in some circumstances, to lien and charge legislation in some States, to the reputational and practical problem of unpaid trades walking off a site, and, on public projects, to a policy expectation that public money reaches the people who did the work. Requiring sworn evidence of payment before each progress payment, with a right to withhold and in some forms to pay subcontractors directly, is how the principal manages that exposure.

It is also why the principal's contract administrator tends to be inflexible about the form. The declaration is the only assurance the principal gets about the state of the supply chain, and a declaration in the wrong form, or signed by the wrong person, or unwitnessed, is not that assurance.

The contractual declaration and the statutory supporting statement

The contractual declaration is often confused with the supporting statement required by security of payment legislation, because the content overlaps almost entirely. They are different documents with different sources and different execution requirements.

	Contractual statutory declaration	Statutory supporting statement
Source	The head contract: AS 2124 clause 43, AS 4000 clause 38, or the annexure or special conditions	Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(7); Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 75(7)
Who must give it	Whoever the contract says, typically the contractor with every progress claim, and a subcontractor on an AS 4901 subcontract	A head contractor serving a payment claim on the principal, where there is a subcontract below it
Witnessed?	Yes. It is a statutory declaration under the oaths legislation of the relevant State	Not by force of the Act. It is a signed statement in the approved or prescribed form
Consequence of omission	The principal may withhold payment under the contract	An offence in New South Wales and Queensland. In Queensland the claim remains valid (s 75(8))

Most head contractors do not prepare two documents. They swear one statutory declaration in the contractual form and serve it as the supporting statement as well, which works provided the declaration covers what the Act requires of a supporting statement. The Queensland position is set out in the companion article on section 75 supporting statements for Queensland head contractors.

Made under oaths legislation, so it must be witnessed

A statutory declaration is not simply a document headed “statutory declaration”. It is a declaration made under a specific Act, and that Act decides who may witness it and how. The head contract usually does not say which Act; the declaration is made under the law of the State whose form is used, which is normally the State where the project is.

• Queensland: Oaths Act 1867 (Qld). Section 16B allows a declaration to be witnessed by a justice of the peace, commissioner for declarations or notary public, a lawyer, or a conveyancer or other person authorised to administer an oath.
• New South Wales: Oaths Act 1900 (NSW). A declaration is made before an authorised witness, a class that includes Australian legal practitioners and justices of the peace, and the witness certifies identity under s 34.
• Victoria: Oaths and Affirmations Act 2018 (Vic), which sets its own list of authorised witnesses.
• South Australia: Oaths Act 1936 (SA).
• Commonwealth: Statutory Declarations Act 1959 (Cth), where the contract prescribes the Commonwealth form, as Commonwealth agency contracts commonly do. The prescribed witness class is broad.

An Australian legal practitioner is within the authorised class in every one of these jurisdictions, which is why a lawyer is the safe choice when the contract does not say which form applies or the project crosses a border. The witness should also be independent of the payment. A company employee who holds a JP appointment is not the ideal witness for a declaration whose purpose is to get the company paid.

Witnessing by video link

Remote witnessing is now permanently available for statutory declarations in most Australian jurisdictions. Queensland allows it under Part 6A of the Oaths Act 1867, with the restriction in s 31S that the witness must be a special witness, a class that includes Australian lawyers. New South Wales and Victoria have their own provisions, and a Commonwealth declaration may be made under observation by video link under s 9 of the Statutory Declarations Act 1959 (Cth). Western Australia does not permit remote witnessing of a WA statutory declaration; the reasons are set out in a separate article.

The mechanics are similar everywhere it is allowed. The witness observes the declarant sign in real time over the link, satisfies themselves as to identity and that the document they countersign is the one that was signed, and endorses the declaration with a statement that it was witnessed by audio-visual link under the relevant provision. The contract administrator should accept a declaration so endorsed; it is a validly made declaration under the Act.

The month-end problem

Here is how the clause plays out on a real project. Progress claims are due on the 25th or the last business day of the month. The subcontractor payment position cannot be settled until the previous month's subcontractor claims have been assessed and paid, which on many projects happens in the last few days before the head contract claim goes in. The director who has to swear the declaration is often on site, interstate, or dealing with three projects at once. The declaration is the last document in the claim bundle to be finalised, and it is the one that needs a third party.

The witness is therefore the constraint. A JP at a shopping centre keeps daytime hours on set days; the office solicitor is not always available at 6 pm on the 24th; a colleague with an appointment should not be witnessing the company's own claim. A declaration that misses the claim goes in late, and the clause gives the principal the right to withhold until it arrives. On a claim of any size, the cost of a week's delay dwarfs the cost of getting the declaration witnessed on the evening it is ready.

Subcontractors have to give one too

The requirement does not stop at the head contractor. A subcontractor engaged on AS 4901-1998, or on a bespoke subcontract that mirrors it, owes the same obligation upward under clause 38 in respect of its own workers and its secondary subcontractors, and the main contractor may withhold payment until it is satisfied. A mechanical or electrical subcontractor with a dozen sub-subcontractors of its own is swearing a declaration with the same content, the same signatory requirements and the same witnessing requirements as the builder above it, on the same day of the month. The main contractor, in turn, needs those declarations in hand before it can honestly swear its own.

Checklist

1. Find the clause. In AS 2124 it is clause 43; in AS 4000, AS 4902 and AS 4901 it is clause 38. Then read the annexure and special conditions, because that is where the mandatory statutory declaration form usually lives.
2. Identify which State's oaths legislation the declaration is made under, and therefore who may witness it and whether video-link witnessing is available.
3. Decide who signs. It should be a director or authorised officer who has personally checked the subcontractor payment position for the claim period.
4. Reconcile the ledger before the declaration is sworn, and declare unpaid amounts and the reason rather than swearing that everyone has been paid.
5. Collect the corresponding declarations from subcontractors on AS 4901-style subcontracts before swearing your own.
6. Book the witness for the day the declaration will be ready, not the day the claim is due.
7. Serve the declaration with the claim, and keep the signed and witnessed original.

Auswitness witnesses statutory declarations by video link with an Australian lawyer, including in the evening and at weekends when month-end declarations are actually ready. See how the statutory declaration session works or the page for builders and contractors.

This note is general information about how these clauses operate. It is not legal advice, it does not reproduce the Standards Australia text, and it is not a substitute for reading your own contract or obtaining advice on your own circumstances. Current as at 22 September 2026.