The MFAA Has Asked WA to Let Brokers Witness Statutory Declarations. The Act Lets a Regulation Make That Change, Not a Bill

On 11 September 2026 the Mortgage and Finance Association of Australia wrote to Western Australia’s Attorney General asking for something small enough to fit in one clause and consequential enough to change a step on thousands of WA loan files: add regulated mortgage and finance brokers to the list of people who can witness a statutory declaration in that state.

The letter, addressed to the Hon Dr Tony Buti MLA and signed by MFAA chief executive Anja Pannek, was reported by The Adviser on 7 October. The MFAA published it in its submissions library as a letter to the Attorney General rather than as a submission to a review, and nothing on your files has changed. But the mechanics underneath the ask are worth ten minutes of a WA broker’s time, for three reasons that have not been discussed much: the change does not need an Act of Parliament, the benefit is narrower than the headline suggests, and the question it raises about witnessing a declaration on your own file is one your licensee will want a position on before the rules change rather than after.

What the ask actually is

Statutory declarations made in Western Australia are governed by the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). Section 12 sets out how one is made. Section 12(6)(a) defines an authorised witness for a declaration made in WA as any person described in the second column of Schedule 2, or any person before whom a declaration may be made under the Commonwealth Statutory Declarations Act 1959.

Schedule 2 runs to 44 numbered items plus lettered insertions. It is unusually broad by Australian standards, and it reaches well into commercial occupations. Item 38 covers “the holder of a licence under the Real Estate and Business Agents Act 1978“. Item 39 covers “the holder of a licence under the Settlement Agents Act 1981“. Item 18 covers “a member of the National Insurance Brokers Association of Australia”. Item 7 covers a person appointed to be in charge of the head office or a branch office of an authorised deposit-taking institution — the bank manager. Item 2 covers members of five named accounting bodies.

Mortgage and finance brokers appear nowhere in it.

The MFAA’s letter asks for Schedule 2 to be extended to Australian credit licence holders who engage in mortgage or finance broking, and to credit representatives authorised under such a licence. Pannek’s framing in the letter is that recognition “would modernise the framework, remove unnecessary administrative friction for Western Australian consumers and better reflect the regulated role brokers now perform in the financial services ecosystem”. The letter puts the MFAA’s membership at more than 16,500 nationally, including over 1,800 brokers operating in Western Australia.

The operational complaint is specific. The letter describes the current arrangement as one that “can result in a broker assisting a client throughout a lending transaction, undertaking extensive identification and verification processes and helping prepare the relevant documentation, but being unable to witness a statutory declaration required as part of that process”. The consequence, in the letter’s words: “The client must instead find another authorised witness solely to complete that step.”

The detail the coverage has skipped: this is a regulation, not a bill

Section 12(7) of the Act reads: “Regulations may amend Schedule 2 by adding a new item to it or by deleting or amending an item in it.”

That single subsection is the most important thing in this story for a broker trying to work out whether to care. Adding brokers to Schedule 2 does not require a bill, a second reading, a committee, or competition for space on a crowded parliamentary calendar. It requires the Attorney General to be persuaded and a regulation to be made. Schedule 2 has already been amended over time: the lettered insertions scattered through it (15A, 19A, 25A, 28A) are the trace of that.

Practically, that means this is a change that could appear with very little runway. Brokers who assume a reform like this is two years of parliamentary process away are reading the wrong instrument. It also means the shape of the change is entirely in the drafting: whether it lands as a broad reference to credit licensees and credit representatives, as the MFAA asked, or as something narrower with carve-outs, is a decision made in a regulation most brokers will never read.

What it would not fix

Before any WA brokerage builds a process assumption on this, read section 12(3)(c). The person making the declaration must, in the presence of an authorised witness, declare orally that they are the person named as the maker, that the contents are true, that the signature is theirs, and if necessary that any attachment is the one referred to. Section 12(5) then requires the witness to sign, to sign or initial any alteration the maker has initialled, and to “imprint or clearly write his or her name and qualification as an authorised witness”.

So the witnessing step is an in-person, oral, contemporaneous event. Adding brokers to Schedule 2 would not make it remote, would not make it digital, and would not let a broker witness a declaration that arrives signed in an email. For the growing share of broker files that run entirely without a face-to-face meeting, this reform changes nothing at all. Its value is concentrated in exactly the cohort the MFAA leaned on in its letter: regional and remote WA clients who do sit across a desk from their broker and who then have to go find a second professional to watch them say nine words out loud.

It is also worth being clear about which declarations are in scope. Commonwealth statutory declarations already have a pathway that removes the witness entirely: since February 2024, under the Statutory Declarations Act 1959 and the Statutory Declarations Regulations 2023, a Commonwealth declaration can be made digitally through myGov using a Digital Identity instead of having a witness verify identity. The friction brokers feel in WA is therefore concentrated in state-level documents — Landgate dealings under the Transfer of Land Act 1893, duties and grant paperwork, and lender forms drafted to the WA Schedule 1 wording — not in the Commonwealth forms.

Some WA brokers already qualify — under a different hat

Here is a point worth checking on your own team before you campaign for a change you may not need. Schedule 2 confers the power on a person by reference to a qualification, not on a role in the transaction. A WA broker who also holds a licence under the Settlement Agents Act 1981 is an authorised witness today, as a settlement agent. So is a broker who holds a real estate and business agent’s licence. So is a broker who is a member of CPA Australia or one of the other four accounting bodies named in item 2.

In diversified WA practices — and settlement agency and broking sit together in that market more often than they do on the east coast — there is a reasonable chance someone in the office is already on the list. Section 12(5)(c) requires the witness to write their qualification as an authorised witness, so the entry on the form would read as the settlement agent or the accountant, not as the broker. That is a distinction worth getting right, because getting it wrong is an offence.

Note also how dated parts of the Schedule are. Item 2 still names “The Institute of Chartered Accountants in Australia” — a body that amalgamated with its New Zealand counterpart in 2014 and has traded as Chartered Accountants Australia and New Zealand ever since. The MFAA’s “modernise the framework” line has more behind it than rhetoric.

The exposure nobody is discussing

Two things sit under this that a WA brokerage should form a view on now, whichever way the regulation goes.

Section 17. The Act makes it an offence for a person who is not an authorised witness to pretend to be, or assert that they are, such a witness knowing they are not. The penalty is imprisonment for 12 months. A broker who signs the witness block on a WA declaration because the list “is about to change”, or because they assumed their credit licence already counted, is not making a paperwork error. If the change is made by regulation, the date it commences matters, and every file witnessed before that date on the strength of the announcement is a problem.

The conflict question. This is general information rather than advice, and it is a question for your licensee rather than one this article can answer. But it is the right question. ASIC’s Regulatory Guide 273 says at RG 273.6 that a mortgage broker is required to act in the best interests of the consumer “when providing credit assistance”, citing ss 158LA and 158LE of the National Credit Act. RG 273.9 describes the conflict priority rule in ss 158LB and 158LF: if there is a conflict of interest when providing credit assistance, the broker must give priority to the consumer’s interests. RG 273.144 applies that where the broker knows, or reasonably ought to know, that such a conflict exists at the time the credit assistance is provided.

Witnessing a declaration is not itself credit assistance, so the duty does not attach to the witnessing. The credit assistance on the same file, though, is unambiguously in scope — and the broker providing it has a commercial interest in the file settling. Whether witnessing a client’s declaration about a matter that supports that same application creates a conflict a licensee needs to manage, and whether the licensee would prefer an independent witness regardless of what Schedule 2 permits, is a policy decision, not a legal conclusion. It is a cheap decision to make in advance and an expensive one to make in an audit.

There is already a trace of this instinct in the forms themselves. A WA statutory declaration form sitting in Westpac’s broker document library — an identity referee declaration — requires the person making it to state that they have known the individual for a stated period, not as a relative, and that they are not a party to any conveyancing transaction involved. The drafting contemplates that distance from the transaction matters. That question does not disappear because a new item is added to a schedule.

How WA compares

WA’s list is the generous one. In Victoria, section 30 of the Oaths and Affirmations Act 2018 governs who may witness a statutory declaration, and the Department of Justice and Community Safety’s own guidance for authorised witnesses lists lawyers, medical practitioners, qualifying accountants, Justices of the Peace, police officers, permanent teachers, notaries and public servants with minimum service, among others. Bank officers qualify only with five or more continuous years of service. Real estate agents, insurance brokers and finance brokers are not on it.

So the MFAA is not asking WA to be first among equals on a national trend. It is asking WA to extend a schedule that already reaches further into commercial occupations than Victoria’s does. That is the strongest version of the MFAA’s argument and the one brokers should use if they are asked for a view: the inconsistency is internal to WA’s own list, not a comparison with other states.

What to review this week

• Audit where declarations actually appear on your WA files. Separate state documents (Landgate dealings, duties, grants, lender forms drafted to Schedule 1) from Commonwealth forms, which already have a witness-free myGov pathway. If the volume is low, this reform is not worth building a process around.
• Check your own team against Schedule 2. Settlement agent licence, real estate and business agent licence, membership of one of the five accounting bodies in item 2. Record who qualifies and under which qualification — not which role.
• Write down the rule you want before the law changes. If Schedule 2 is amended, will your business witness declarations on files it is providing credit assistance on, or require an independent witness anyway? Put the question to your licensee or compliance adviser in writing and keep the answer.
• Brief anyone who signs documents on section 17. Not authorised, not yet authorised, and authorised under a different qualification are three different situations. The penalty attaches to asserting a status you know you do not have.
• Check your regional files specifically. If the friction the MFAA describes is real in your business, it will show up as delay on files where the client is a long way from the nearest authorised witness. That is the evidence base for a submission, and the only place this reform delivers measurable time back.

What to watch next

The thing to watch is not a bill. It is the WA Oaths, Affidavits and Statutory Declarations Regulations and any amendment to them, because section 12(7) is the mechanism and a new item in Schedule 2 is the outcome. Watch also for the drafting: a reference to credit licensees and credit representatives engaged in mortgage or finance broking, as the MFAA asked for, would capture a very large population, and whether the regulation carries any limitation around declarations connected to the broker’s own transaction is the detail that will determine how much work your compliance framework has to do.

Beyond that, whether the MFAA runs the same argument in other states is worth tracking. Its case in WA rests on an internal inconsistency in Schedule 2. That argument does not travel to Victoria, where the comparable occupations are not on the list either. A broker reading a future headline about witnessing powers in another state should check which argument is being made before assuming the WA outcome predicts it.

The bottom line

This is a minor reform with an unusually short path to commencement and a longer tail of process consequences than its size suggests. The upside is real but narrow: an in-person step removed for clients who meet their broker face to face, concentrated in regional WA. The downside is not the reform itself but the gap between announcement and commencement, and the conflict question that a new item in Schedule 2 permits but does not resolve.

WA brokers do not need to do anything about this today. They do need to know that the change rides on a regulation rather than a bill, that witnessing would still have to happen in person and out loud, that some of their colleagues are already authorised under a different qualification, and that the sensible time to settle a house rule on witnessing your own files is before the rule becomes available rather than after.