To Make Oath and Say or to Declare and Affirm?

On 1 March 2019, the Oaths and Affirmations Act 2018 (Vic) (the Act) came into effect and is now the ‘go to’ piece of legislation for the law relating to oaths, affirmations, affidavits and statutory declarations in Victoria. It has also established a scheme for the certification of copies of documents.

Essentially, the Act has amalgamated this area of law in Victoria and replaced a number of provisions of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

Key Take Outs

1. Oaths & Affirmations

Part 2 of the Act sets out the requirements for taking an Oath or an Affirmation. A deponent must say out aloud, in the presence of an administering officer, an oath or an affirmation. If a person elects to take an oath that person may choose to use a religious text in taking the oath, but it is not required to do so. A person may also elect to take an oath even if the person’s beliefs do not include a belief in the existence of a god.

2. Affidavits

For affidavits sworn or affirmed in Victoria, pursuant to section 25 of the Act, the deponent of an affidavit, and the authorised affidavit taker must:

• sign or initial any alteration to the affidavit;
• sign each page of the affidavit;
• sign the affidavit;
• if the affidavit refers to a document, sign a certificate attached to the document identifying the document as an exhibit to the affidavit;
• take the oath or make the affirmation.

Previously the deponent was only required to sign the jurat section. It was also not a requirement for the deponent to sign each certificate identifying a document.

It is also important to note that if the deponent is illiterate, blind or cognitively impaired, then the authorised affidavit taker must certify in or below the jurat that the affidavit was read to the deponent by the authorised affidavit taker.

For affidavits made outside of Victoria, but to be used in any Victorian Court or Tribunal, section 21 of the Act now sets out a list of persons who are authorised affidavit takers and who have the authority to administer an oath or affirmation in a place outside of Victoria.

3. Statutory Declarations

Before, there was no prescribed form for a statutory declaration. Now, the Act states that a statutory declaration must be in the prescribed form unless the person making the statutory declaration has a disability that prevents the person from doing so. In those circumstances, the witness may make reasonable modifications to the process of making a statutory declaration. The Act has also expanded the list of people who are able to witness Victorian statutory declarations to include a person who is authorised to witness a Commonwealth statutory declaration, such as licensed conveyancers and protective service officers.

Like affidavits, if the deponent is illiterate, blind or cognitively impaired, then the witness must certify that the statutory declaration was read to the person making the statutory declaration by the statutory declaration witness.

4. Certification

The Act sets out a clear certification scheme that may be used by an authorised certifier to certify a copy of an original document as a true copy.

The Act is a one stop shop for the law relating to oaths, affirmations, affidavits, statutory declarations and certifications in Victoria. It is important to note that a person who intentionally makes a false statement, whether orally or in writing, under oath or affirmation or in an affidavit is liable to the penalties of perjury under the Crimes Act 1958 (Vic).  Whilst minor inadvertent non-compliance with the Act does not affect the validity of an oath, affirmation, affidavit, statutory declaration or certification, this is not to say that a party in a court proceeding, may not seek to set aside the document relied upon. Gadens can assist by providing advice in relation to evidentiary issues, litigation and dispute resolution matters generally.

If you require any further information in relation to the Act, please contact us to discuss, the Act is available online.

Authored by:

Susan Sumars, Senior Associate

Sarah Rogers, Lawyer