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Oaths and Affirmations Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill which are--
• to re-enact and modernise the law relating to oaths,
affirmations, affidavits and statutory declarations; and
• to establish a scheme for the certification of copies of
documents; and
• to repeal Divisions 1 to 11 of Part IV, Part V and other
provisions of the Evidence (Miscellaneous Provisions)
Act 1958; and
• to make consequential amendments to the
Evidence Act 2008, the Constitution Act 1975,
the Interpretation of Legislation Act 1984 and
other Acts.
Clause 2 provides that the Bill will come into operation on a day or days to
be proclaimed, or on 1 September 2018 if not proclaimed before
that date.
The default commencement period is longer than usual as
some stakeholders will require at least 12 months after the Bill's
passage to make necessary changes to the forms they use and to
undertake extensive training of staff. New regulations will also
be required to be made and all changes will need to be widely
publicised throughout the community.
581093 1 BILL LA INTRODUCTION 6/6/2017
Clause 3 sets out the defined terms used in the Bill.
Some of the key definitions contained in the Bill include
administering officer, authorised affidavit taker, authorised
certifier, cognitive impairment, identical, original document, and
statutory declaration witness. They are defined as follows--
• administering officer means any person authorised to
administer oaths or affirmations by or under the Bill or
any other Act or by convention. This definition refers
to the updated and modernised list in clauses 12 and 13
of the Bill of those who are authorised to administer
oaths and affirmations by the inherent power of the
courts, by Division 5 of Part IV of the Evidence
(Miscellaneous Provisions) Act 1958, or by other
court rules or practice notes, or by other Acts or specific
statutory rules or by any prescribed person or class of
person.
• authorised affidavit taker means a person authorised
to take an affidavit by or under Part 3. This updates and
modernises the list of those authorised by Division 9 of
Part IV of the Evidence (Miscellaneous Provisions)
Act 1958 to take affidavits.
• authorised certifier means a person authorised to
certify a copy of a document by or under Part 5.
The Bill provides for the first time a process for the
certification of documents as true copies of original
documents and so provides a definition of who is
authorised to certify those documents.
• cognitive impairment includes an intellectual disability,
an acquired brain injury, autism spectrum disorder and
a neurological impairment. This definition updates and
modernises the current definition in the Evidence
(Miscellaneous Provisions) Act 1958.
• identical does not mean of the same size or colour,
provided that the use of a different size or colour
does not result in the loss of any material information.
The Bill provides for the first time a process for the
certification of documents as true copies of original
documents and an authorised certifier is required to
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inspect the copy document to ensure it is identical with
the original.
• original document in the context of certification means
a document that an authorised certifier, having used his
or her best judgment, determines is--
(a) original; or
(b) a document or extract that has been certified
as a true extract from or copy of a register of
public documents or any other official record
by the keeper or holder of that register or
record;
Paragraph (b) refers to documents such as an extract of
a birth certificate issued by the Victorian Registry of
Births, Deaths and Marriages or a copy of a student's
academic record certified by the appropriate officer
of a University as a true copy of the student's original
academic record.
The Bill provides for the first time a process for the
certification of documents as true copies of original
documents. The definition is intended to assist an
authorised certifier to determine what is an original
document.
• statutory declaration witness means a person authorised
to witness a statutory declaration by or under Part 4.
This updates and modernises the list of those authorised
by Division 4 of the Evidence (Miscellaneous
Provisions) Act 1958 to witness statutory declarations.
Clause 4 provides that the Act does not limit the inherent jurisdiction,
implied jurisdiction or statutory jurisdiction of the Supreme
Court or the implied jurisdiction or statutory jurisdiction of the
County Court, or a tribunal's statutory jurisdiction, or any other
powers of a court or tribunal arising or derived from the common
law or under any other Act (including any Commonwealth Act),
rule of court, practice note or practice direction.
This clause means that the current jurisdiction and powers of the
Supreme Court, the County Court, and tribunals are not limited
or fettered in any way by the provisions of the Bill.
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Clause 5 provides that the Act binds the Crown in right of Victoria and, to
the extent that the legislative power of the Parliament permits, the
Crown in all its other capacities.
Part 2--Oaths and affirmations
Clause 6 subclause (1) provides that Part 2 of the Act sets out the basic
requirements for oaths and affirmations that may be used if an
oath or affirmation is required to be taken by or under an Act or
by convention.
The use of the phrase "by or under an Act" means that if an oath
or affirmation is required to be taken by a section of another Act
or pursuant to the regulations or rules made under another Act,
then the basic requirements provided by Part 2 of the Bill may
be used.
Subclause (2) provides that in respect of an oath taken or
an affirmation made by a witness or by an interpreter in a
proceeding to which the Evidence Act 2008 applies, only
section 12 of the Bill applies.
The Evidence Act 2008 sets out the requirements for oaths and
affirmations in respect of proceedings to which that Act applies
(namely the Supreme Court or any other court created by
Parliament and includes any person or body that is required to
comply with the laws of evidence) but it does not specify who
may administer an oath or affirmation (which is provided for in
clause 12).
Clause 7 provides that a person has a choice of making an oath or
affirmation, and that the person who is to administer the oath or
affirmation must inform that person that he or she has this choice
unless the administering officer is satisfied that the person knows
that he or she has the choice.
This clause also provides that if the person refuses to choose
whether to take an oath or make an affirmation, or if it is not
reasonably practicable for that person to take an appropriate oath,
then the administering officer may direct the person to make an
affirmation.
This clause replicates the effect of section 102 of the Evidence
(Miscellaneous Provisions) Act 1958 which is repealed by this
Bill.
4
Clause 8 provides that the form in which an oath may be taken or an
affirmation may be made is to be in accordance with the form
of Schedule 1 to the Bill, or in a similar form unless the oath or
affirmation is required to be in a particular form specified by or
under any other Act, or by convention or otherwise.
Examples of other legislation that specify a different form of
oath are section 88AA of the Constitution Act 1975 and
section 16(1)(c) of the Legal Profession Uniform Law (Victoria).
These provisions and others provided for by other Acts (or
regulations and rules made under an Act), by convention or
otherwise will be unaltered by the Bill.
Clause 8 also provides that an affirmation made in the prescribed
form has the same effect for all purposes as an oath.
This clause also provides that in the case of a child or a
person with a cognitive impairment, a similar form of the
prescribed oath or affirmation includes "I promise to tell the
truth.". This does not limit the meaning of "similar form,".
Other appropriate variations are still possible for children,
those with cognitive impairment or any other person taking
an oath or affirmation according to the Schedule.
Clause 9 provides that a person who takes an oath or makes an affirmation
must say the words of the oath or affirmation aloud and must do
so whilst in the presence of the person who administers the oath
or affirmation.
This provision makes express the assumption in Part IV
Division 2 of the Evidence (Miscellaneous Provisions)
Act 1958 that an oath or affirmation must be said aloud.
Clause 10 provides that a person may use a religious text in taking an oath,
but is not required to do so. This replicates section 103(1) of
the Evidence (Miscellaneous Provisions) Act 1958 which is
repealed by the Bill.
The clause further provides that even if the person's religious or
spiritual beliefs do not include a belief in the existence of a god,
they may still take an oath or affirmation.
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This clause also provides that an oath is effective even if the
person who takes it does not have a religious belief, or a religious
belief of a particular kind. This replicates section 103(2) of the
Evidence (Miscellaneous Provisions) Act 1958 which is
repealed by the Bill.
Further, if a person makes an oath, the oath does not need
to include a reference to a god and may instead refer to the basis
of the person's beliefs, whatever those beliefs may be. This is
based on section 24A of the Evidence Act 2008 to ensure that
the provisions about oaths and affirmations in the Evidence
Act 2008 are aligned, where appropriate with the new Oaths and
Affirmations Bill 2017.
Clause 11 allows an oath to be taken or an affirmation to be made by more
than one person at the same time. This replicates section 101(3)
of the Evidence (Miscellaneous Provisions) Act 1958 which is
repealed by the Bill.
This clause also allows the words of an oath or affirmation
to be altered and the process for administering the oath or
affirmation to be adapted so as to enable the oath or affirmation
to be administered to more than one person at the same time.
This provision means that if a group takes an oath or affirmation
together, it is not necessary for them to say the words of the oath
or affirmation aloud. For example they may listen to the oath or
affirmation being read and then all reply together "I swear by
Almighty God to do so".
Clause 12 subclause (1) provides that a court, tribunal, judicial officer or a
person acting judicially has the power to administer an oath or
affirmation to any witness who is called before them, or to any
interpreter in a proceeding before them, or to any other person
required to take an oath or make an affirmation in a proceeding in
the court or tribunal or before the judicial officer or person acting
judicially. This clause replicates the effect of section 110 of the
Evidence (Miscellaneous Provisions) Act 1958, which is
repealed by the Bill.
Subclause (1)(b) provides that a person who is performing duties
in relation to a court or tribunal is duly authorised to administer
an oath or affirmation.
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Subclause (1)(c) provides that a person who is performing duties
in relation to a court or tribunal who is authorised by a court or
tribunal or by any rules of court or orders or practice directions or
practice notes regulating the procedure of the court or tribunal
will have the power to administer an oath or affirmation.
Subclauses (1)(b) and (c) mean that a person working in a
court or tribunal may be specifically authorised by a court or
tribunal or by court rules orders or practice notes to administer
oaths or affirmations or they may be authorised to take an oath
or affirmation simply because they are performing duties in
relation to a court or tribunal. In either circumstance, whether
the authorisation is express or not, the person performing duties
in relation to a court or tribunal will be authorised to take an
oath or affirmation in relation to their court or tribunal duties.
Subclause (1)(d) provides that a person performing duties as
authorised by a person acting judicially will be authorised to take
an oath or affirmation for any purpose connected with their
duties.
Subclause (1)(e) provides that a person who is directed to take
an examination in any proceedings in a court or tribunal or
before a person acting judicially is authorised to take an oath or
affirmation.
Subclause (1)(f) provides that a person who is authorised under
clause 13 of the Bill to take or receive evidence is authorised to
take an oath or affirmation.
Subclause (1)(g) provides that a prescribed person or person who
is a member of a prescribed class of persons can be authorised to
take an oath or affirmation.
Subclause (2) empowers a person or a person belonging to a class
of persons specified by or under another Act or another statutory
rule to administer an oath or affirmation in the circumstances or
in the manner specified by that Act or statutory rule.
Subclause (3) provides that, subject to the exceptions referred
to below, it is not lawful for a person to administer an oath or
affirmation unless the person is authorised to do so by or under
this Act or another Act or by convention. If a person who is not
authorised to administer an oath or an affirmation purports to do
so then that purported oath or affirmation has no legal effect in
Victoria.
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That provision however does not apply in respect of an oath or
affirmation made in a matter or thing touching the preservation
of the peace, or touching any proceedings before the Legislative
Council or Legislative Assembly or any of their committees
or required by the law of any foreign or other country out of
Victoria to give validity to instruments in writing designed to
be used in foreign or other countries respectively.
These subclauses are intended to have the same effect as
section 151 of the Evidence (Miscellaneous) Provisions
Act 1958 which is repealed by the Bill. Section 151 of the
Evidence (Miscellaneous) Provisions Act 1958 abolished
extra judicial oaths but then exempted a similarly broad range
of situations from this abolition.
Subclause (3)(d) also provides that the general prohibition on
administering oaths or affirmations does not apply to an oath or
affirmation of office. This will ensure that all oaths or
affirmations of office will have legal effect.
Clause 13 provides for circumstances where an interstate or overseas court
or body appoints a person to take or receive evidence in Victoria.
This clause provides that if another jurisdiction outside of
Victoria lawfully authorises a court or a judicial officer, or a
person acting judicially to take or receive evidence on oath or
affirmation in Victoria then that person has the power to take or
receive that evidence.
However, if that jurisdiction authorises someone else to take or
receive evidence in Victoria, then that person has the power to do
so only if the Attorney-General of Victoria first provides consent.
This provision is intended to replicate section 111A of the
Evidence (Miscellaneous Provisions) Act 1958 which is
repealed by the Bill.
Clause 14 requires a person who is authorised to administer an oath or an
affirmation not to do so if it appears to them that a person who is
about to take an oath or make an affirmation before them is
unable to understand the nature of an oath or affirmation.
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Clause 15 provides that a person administering an oath or affirmation may
make reasonable modifications to the process of taking an oath or
making an affirmation if the person taking the oath or making the
affirmation has a disability that prevents them from complying
fully with the other relevant provisions. For example, a hearing
impaired person may read and sign an oath or affirmation instead
of saying it aloud, or a person who is unable to speak may be able
to listen to an oath or affirmation being read and nod assent.
Clause 16 provides that if a witness is to give evidence via audio or
audio-visual link, then the witness may take the oath or make the
affirmation required via the audio or audio-visual link in as close
as practicable a way as if the witness was physically present in
the relevant courtroom or hearing room.
Alternatively, the oath or affirmation may be administered to
the witness at the direction and on behalf of the court, tribunal or
person acting judicially, at the place from where the witness is to
give evidence, by a person authorised by the court, tribunal or
person acting judicially.
Clause 16 is intended to replicate the effect of section 42Y of
the Evidence (Miscellaneous Provisions) Act 1958 which is
repealed by the Bill.
Clause 17 provides that an oath or affirmation will still be valid even if a
person administering the oath or affirmation or a person taking
the oath or making the affirmation makes a minor error which
means that technically the requirements in this part of the Bill
have not been adhered to, as long as the mistake made does not
materially affect the nature of the oath or affirmation.
It is intended that if a minor error was made when an oath or
affirmation is made and that error does not materially affect the
nature of the oath or affirmation made, then anything said or
done under that oath or affirmation will not be affected or made
invalid only by reason of that minor non-compliance with the
requirements of the Bill.
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Part 3--Affidavits
Clause 18 provides that Part 3 of the Bill sets out the basic requirements
for affidavits, and that those requirements apply for all affidavits,
unless there is a provision in another Act that specifically
requires something for an affidavit under that Act which is
inconsistent with what is required by Part 3 of the Bill.
Subclause (2) also makes it clear that a court's or tribunal's power
to make rules of court in relation to affidavits is not limited or
affected by anything in this Part of the Bill.
Clause 19 provides a list of people who are authorised to take affidavits
within Victoria for use in Victoria in any court or tribunal or
before any person acting judicially for any purpose or in any way
authorised by law, whether they are authorised pursuant to any
State or Commonwealth Act, by custom or in any other way.
This clause also provides that all courts, tribunals and other
persons acting judicially must take judicial and official notice of
the seal or signature of any person authorised by this section to
take an affidavit, if that person's seal or signature appears on,
attached or appended to any affidavit.
Subclause (3) provides that judicial and official notice in
this context means that there is a presumption that, unless the
contrary is proved, the person signed the affidavit and the
person was an authorised affidavit taker at the time of taking
the affidavit.
Subclause (4) means that an Australian legal practitioner
may take an affidavit from a client in relation to particular
proceedings, and is not prohibited from doing so simply
because the lawyer is acting for that person in those proceedings.
Subclause (5) provides that it is not lawful for a person to take
an affidavit unless the person is authorised to do so by or under
this Act or another Act or by convention. If a person is not
authorised then any affidavit they take has no legal force
or effect. If such a person knows he or she is not authorised
then he or she commits an offence--see clause 22.
10
Clause 20 provides that if a person who is authorised by clause 19 to take
an affidavit within Victoria charges or seeks to charge or accepts
payment of a fee for administering an oath or an affirmation for
an affidavit, or for signing an affidavit, then that person commits
an offence and may be fined up to 10 penalty units.
Subclause (2) however provides that if a public notary requests,
requires or accepts the payment of a fee for taking an affidavit
when performing services or notarial acts which relate to
documents intended solely for use outside Australia, then such
a public notary does not commit an offence.
Clause 20 is intended to replicate section 123C(5) of the
Evidence (Miscellaneous Provisions) Act 1958 which makes
it an offence to request or take payment for taking an affidavit
if a person is only authorised under section 123C of that Act.
This means that if a person also gets their power to take an
affidavit from another source, for example international laws or
conventions that authorise a public notary or the authorisation
comes from another clause in this Bill, then the offence in
section 123(C)(5) of the Evidence (Miscellaneous Provisions)
Act 1958 does not apply to them. This means that those
Commonwealth officers authorised under clause 21 of the Bill
to take an affidavit outside Victoria and who may be required by
Commonwealth legislation to charge a fee for taking an affidavit,
will not commit an offence under the Bill by complying with the
Commonwealth legislation.
Note also, section 46 of the Honorary Justices Act 2014
provides that it is an offence, punishable by up to 12 months
imprisonment, for an honorary justice to demand, take or accept
from any person any fee, gratuity, patronage or reward for
carrying out duties under that Act. Therefore a different penalty
from that prescribed by clause 20 applies to an Honorary Justice
who commits one of these acts.
Clause 21 provides that, as well as those authorised to take an affidavit in
clause 19, the following are also authorised to take an affidavit
from a person making any affidavit in any place out of Victoria
for use in Victoria in any court or tribunal or before a person
acting judicially for any purpose or in any way authorised by law,
(whether by or under any Act, including a Commonwealth Act),
by custom or otherwise--
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(a) an Australian consular officer exercising the officer's
functions in that place;
(b) an employee of the Commonwealth referred to in
section 3(c) of the Consular Fees Act 1955 of the
Commonwealth;
(c) an employee of the Australian Trade Commission
referred to in section 3(d) of the Consular Fees
Act 1955 of the Commonwealth;
(d) any person having authority to administer an oath or
affirmation in the place outside of Victoria concerned.
Clause 21(1)(a)(b) and (c) gives effect to an agreement of the
Standing Committee of Attorney Generals (SCAG) taken in 1999
to allow certain locally employed staff at Australian Consulates
to witness documents for use in Australia. Similar legislation
already exists in Queensland, Western Australia, South Australia,
Tasmania and the Northern Territory.
Subclause (2) also provides that if an affidavit is required or
authorised or permitted pursuant to any Act or subordinate
instrument to be made before a justice of the peace or a bail
justice, then it is sufficient if any such affidavit is made before a
justice of the peace or bail justice, however that person might be
described, for that place outside Victoria where the affidavit is
made. This provision has a different purpose to clause 21(1)(d)
of the Bill insofar as it relates to a justice of the peace or a bail
justice. Subclause (21)(2) confirms that if there is a particular
requirement that a justice of the peace or bail justice must witness
an affidavit (not any person authorised to take an affidavit) then
a justice of the peace or bail justice authorised in another
jurisdiction will be sufficient to meet that requirement when
an affidavit is made outside Victoria. It means that for these
purposes, all justices of the peace and bail justices are of the
same status and effect.
Subclause (3) provides that a court, tribunal or person acting
judicially must take judicial and official notice of the signature of
any justice of the peace or bail justice for a place outside Victoria
referred to in subsection (2) when that person's signature is
attached or appended to any affidavit.
12
Subclause (4) provides that in this context judicial and official
notice means that there is a presumption that, unless the contrary
intention is proved, the justice of the peace or the bail justice
signed the affidavit and the justice of the peace or the bail justice
was an authorised affidavit taker at the time of taking an
affidavit.
Clause 22 creates an offence punishable by 60 penalty units for a person
to take an affidavit if that person is not authorised to do so and
knows they are not so authorised.
Subclause (2) creates an offence punishable by 10 penalty units
for a person who is not authorised to take an affidavit to represent
that they are so authorised. This offence requires the person to
have knowledge that they are not authorised.
Clause 23 provides that an affidavit may be made in the form prescribed
pursuant to the Bill.
Clause 24 provides that an authorised affidavit taker has the power to
administer an oath or affirmation to a deponent for the purposes
of making an affidavit and that the oath or affirmation must be
administered in accordance with Part 2 of the Bill.
Clause 25 specifies that, when making an affidavit, a deponent must, in
the presence of an authorised affidavit taker, sign or initial any
alteration to the affidavit, sign each page of the affidavit, sign
the affidavit, and, if the affidavit refers to a document, then
sign a certificate attached to the document which identifies the
document as an exhibit to the affidavit. If however the deponent
is illiterate, blind or cognitively impaired then these requirements
do not apply, but clause 28 applies instead.
Subclause (2) provides that the deponent must swear or affirm
the affidavit by saying the prescribed oath or affirmation aloud in
the presence of the authorised affidavit taker, unless the deponent
has a disability that prevents the deponent from doing so.
Clause 26 specifies that an authorised affidavit taker before whom an
affidavit is sworn or affirmed must sign or initial any alteration
to the affidavit, sign each page of the affidavit, administer the
oath or affirmation to the deponent in accordance with the Bill
and comply with the jurat particulars referred to in clause 27.
13
Subclause (2) provides that if an affidavit refers to a document,
a certificate must be attached to the document identifying the
document as an exhibit to the affidavit and the authorised
affidavit taker must sign and date the certificate and write, type
or stamp below their signature on the certificate their name and
address and the capacity in which they have authority to take the
affidavit.
Subclause (3) provides that an authorised affidavit taker must
ensure that an affidavit is dated.
Subclause (4) provides that Part 5 of the Bill, which deals with
the certification of copy documents, does not apply to a
certificate attached to an exhibit made pursuant to this clause.
Clause 27 specifies how an authorised affidavit taker is required to
complete the jurat, which is defined in clause 3 as a written
statement at the end of an affidavit setting out where and when
the affidavit was sworn or affirmed, followed by the signature
and authority of the authorised affidavit taker.
This clause requires an authorised affidavit taker to state truly
in the jurat at what place and on what date the affidavit was
sworn or affirmed; to complete and sign the jurat; to legibly
write, type or stamp below the affidavit taker's signature the
authorised affidavit taker's name and address (whether personal
or professional), and a statement of the capacity in which the
affidavit taker has authority to take the affidavit.
Subclause (2) provides that the signature of an authorised
affidavit taker, when appearing in any jurat to an affidavit, is
prima facie evidence that the affidavit was duly sworn or
affirmed before the person purporting to have attested the
affidavit in the jurat, and on the day, and in the place, attested to
in the jurat.
It should be noted that section 126B of the Evidence
(Miscellaneous Provisions) Act 1958 creates an offence of
making a false or misleading statement as to the circumstances
in which an affidavit is sworn or affirmed.
Clause 28 provides that if it appears to an authorised affidavit taker that the
deponent is illiterate, blind or has a cognitive impairment, the
authorised affidavit taker must certify in or below the jurat that
the affidavit was read to the deponent by the authorised affidavit.
14
Subclause (2) provides that if an affidavit is made by an illiterate
deponent, a blind deponent or a deponent with a cognitive
impairment and a certificate in accordance with subsection (1)
does not appear on the affidavit, the affidavit must not be used in
evidence unless the court or tribunal in which, or the person
acting judicially before whom, the affidavit is used is satisfied
that the affidavit was read to the deponent.
Note also that clause 14 prohibits an administering officer from
administering an oath or affirmation if it appears to them that the
person seeking to take the oath or make the affirmation is unable
to understand the nature of an oath or affirmation.
Clause 29 provides that an affidavit is not invalid merely because of an
inadvertent non-compliance with a requirement imposed by
Part 3 of the Bill as long as that does not materially affect the
nature of the affidavit. This provision means that a person
receiving an affidavit could still accept and rely on that affidavit
if minor non-compliance with the Bill's requirements did not
materially affect the nature of the affidavit.
Part 4--Statutory declarations
Clause 30 subclause (1) provides that a statutory declaration must be in the
form prescribed.
Subclause (2) provides that the affidavit must be declared in the
presence of an authorised affidavit taker or a person authorised
to take a statutory declaration by or under any other Act, or under
a Commonwealth Act to take a statutory declaration under that
Commonwealth Act, or by any other prescribed person or person
who is a member of a prescribed class of persons.
Subclause (3) means both the person making the statutory
declaration and the statutory declaration witness must, in the
presence of each other, sign or initial any alteration to the
statutory declaration, sign or initial each page of the statutory
declaration, sign a certificate attached to the document
identifying the document as an exhibit to the statutory
declaration, if the statutory declaration refers to a document,
sign and date the statutory declaration, and legibly write, type
or stamp that person's name and address on the statutory
declaration.
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Subclause (4) provides that the person making the written
statutory declaration must make an oral declaration by saying
the prescribed words aloud in the presence of the statutory
declaration witness, unless the person has a disability that
prevents the person from doing so.
Subclause (5) requires the statutory declaration witness to write,
type or stamp under their signature as required by subclauses
(3)(c) and (d) that person's qualification as a statutory declaration
witness.
Subclause (6) provides that where pursuant to subclause (3)(e),
the statutory declaration witness is required to write, type or
stamp their name and address then the address may be a personal
or a professional address.
Subclause (7) provides that nothing in the Bill prevents an
Australian legal practitioner from acting as a statutory declaration
witness by reason only that the Australian legal practitioner is
acting or assisting any person acting for any of the parties to a
proceeding or matter in respect of which the statutory declaration
is made.
Clause 31 provides that a person commits an offence punishable by
60 penalty units if that person witnesses a statutory declaration
while knowing that he or she is not a statutory declaration
witness.
Subclause (2) provides that a person commits an offence
punishable by 10 penalty units if that person represents that he
or she is a statutory declaration witness knowing that he or she
is not a statutory declaration witness.
Clause 32 allows for a person to provide assistance to a person who is
making a statutory declaration. It requires that any person who
assists a person to make a statutory declaration must on the face
of the document write or stamp the name and address of the
assistant and explain the nature of the assistance provided to the
person making the declaration.
Examples of the sorts of assistance that might be provided
include assistance with translation or with reading and writing.
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Subclause (2) also clarifies that the person providing the
assistance may be the same person who witnesses the written
statutory declaration, as long as that person is properly qualified
under the Bill to do so.
Subclause (3) provides that the requirement specified in
subclause (1) that an assistant must explain the nature of the
assistance provided and write or stamp the name and address of
the assistant does not apply to a person who, in a professional
capacity, prepares or writes a statutory declaration for a client
or on a client's instructions. For example an Australian legal
practitioner, a licensed conveyancer or a person assisting another
to prepare a victim impact statement, is not required to write
or type their name as an assistant and explain that they assisted
by preparing, drafting or writing the statutory declaration.
The purpose of this clause is to distinguish between those such
as an Australian legal practitioner, who prepares, or writes the
statutory declaration as part of their normal duties and whose
involvement would normally be readily ascertainable, from
those who might have assisted in some other way and whose
involvement, without an explanation on the face of the document,
may be difficult or impossible to ascertain.
Clause 33 provides for statutory declarations that are made out of Victoria
for use within Victoria.
It provides that, in addition to a person referred to in clause 30(2)
of the Bill the following are authorised as statutory declaration
witnesses for the purpose of a person making any statutory
declaration in any place out of Victoria for use in Victoria in
any court or tribunal or before a person acting judicially or for
any purpose or in any way authorised by law (whether by or
under any Act, including a Commonwealth Act), by custom or
otherwise--
• an Australian consular officer exercising the officer's
functions in a place outside of Victoria; and
• an employee of the Commonwealth referred to in
section 3(c) of the Consular Fees Act 1955 of the
Commonwealth; and
• an employee of the Australian Trade Commission
referred to in section 3(d) of the Consular Fees Act 1955
of the Commonwealth; and
17
• any person having authority to administer an oath or
affirmation in a particular place outside of Victoria.
Subclause (2) provides that if a statutory declaration is, pursuant
to any Act or subordinate instrument, required, authorised or
permitted to be administered or made before a justice of the
peace or a bail justice, then it is sufficient if the statutory
declaration is made before a justice of the peace or a bail justice
(however described) for the place outside Victoria where the
statutory declaration is made.
Subclause (3) provides that a court, tribunal or person acting
judicially must take judicial and official notice of the signature of
any justice of the peace or bail justice for a place outside Victoria
referred to in subsection (2) when that person's signature is
attached or appended to any statutory declaration.
Clause 33(1)(a), (b) and (c) gives effect to an agreement of the
Standing Committee of Attorney Generals (SCAG) taken in 1999
to allow certain locally employed staff at Australian Consulates
to witness documents for use in Australia. Similar legislation
already exists in Queensland, Western Australia, South Australia,
Tasmania and the Northern Territory.
Subclause (2) also provides that if a statutory declaration is
required or authorised or permitted pursuant to any Act or
subordinate instrument to be made before a justice of the peace or
a bail justice, then it is sufficient if any such statutory declaration
is made before a justice of the peace or bail justice, however that
person might be described, for that place outside Victoria where
the statutory declaration is made. This provision has a different
purpose to clause 33(1)(d) of the Bill insofar as it relates to a
justice of the peace or a bail justice. Subclause (33)(2) confirms
that if there is a particular requirement that a justice of the peace
or bail justice must witness a statutory declaration (not any
person authorised to witness a statutory declaration) then a justice
of the peace or bail justice authorised in another jurisdiction will
be sufficient to meet that requirement if a statutory declaration
is made outside Victoria. It means that for these purposes, all
justices of the peace and bail justices are of the same status and
effect.
18
Subclause (3) provides that a court, tribunal or person acting
judicially must take judicial and official notice of the signature of
any justice of the peace or bail justice for a place outside Victoria
referred to in subsection (2) if that person's signature is attached
or appended to any affidavit.
Subclause (4) explains what taking judicial and official notice of
a seal or signature means in this context.
Clause 34 provides that a statutory declaration witness may make or permit
reasonable modifications to the process of making a statutory
declaration if the person making the statutory declaration has a
disability that prevents them from doing so in accordance with
the other provisions of Part 4. For example, a hearing impaired
person may read and sign the oral declaration instead of saying it
aloud, and a person who is unable to speak may be able to listen
to a statutory declaration being read and nod assent.
Clause 35 provides that, without limiting the effect of clause 34, if it
appears to a statutory declaration witness that the person making
the statutory declaration is illiterate, blind or has a cognitive
impairment, then the statutory declaration witness must certify on
the face of the statutory declaration that the statutory declaration
was read to the person making the statutory declaration by the
statutory declaration witness.
Clause 36 provides that it is an offence punishable by 600 penalty units or
5 years or both for a person to make a statement in a statutory
declaration that the person knows to be untrue.
Section 141 of the Evidence (Miscellaneous Provisions)
Act 1958 provided that making a false statutory declaration
constituted the offence of perjury under section 314 of the
Crimes Act 1958 and was subject to a maximum penalty of
15 years imprisonment. The new provision recognises that while
making a false statutory declaration is a serious offence, it is not
as grave as lying under oath and therefore should not be treated
as perjury.
Clause 37 provides that it is an offence punishable by 10 penalty units for a
person who makes a false or misleading statement, knowing that
the statement is false or misleading, as to the circumstances in
which a statutory declaration or a document purporting to be a
statutory declaration was made, or whether or not a statutory
declaration or a document purporting to be a statutory declaration
19
was actually made. This offence is analogous to section 126B of
the Evidence (Miscellaneous Provisions) Act 1958 that relates
to false and misleading statements about affidavits.
Clause 38 provides that minor non-compliance with a provision of the Bill
does not necessarily mean that a statutory declaration will be
invalid, so that a statutory declaration is not invalid merely
because of an inadvertent non-compliance with a requirement
imposed by the Bill that does not materially affect the nature of
the declaration. This provision means that a person receiving a
statutory declaration could still accept and rely on that statutory
declarations if minor non-compliance with the Bill's requirements
did not materially affect the nature of the declaration.
Part 5--Certification
Clause 39 specifies who is authorised under the bill to certify copy
documents. Those persons are an authorised affidavit taker, a
statutory declaration witness, a person authorised or required by
or under any other Act in relation to a document under that Act
and any other prescribed person or member of a prescribed class
of persons.
Clause 40 specifies that Division 2 of Part 5 of the Bill which provides for
a scheme for certification of copies of original documents may be
used by an authorised certifier to certify a copy of an original
document as a true copy.
Subclause (2) provides that this Division does not apply to any
certification requirement of or under any other Act unless this
Division is expressly applied by or under that Act. This means
that the scheme is an "opt in" scheme, rather than a compulsory
one. No-one is required to use the process outlined in Part 5
unless it has been expressly applied or adopted. The process
provided is available to be adopted and provides a robust process
for the certifying that a copy document is a true copy of an
original document.
Subclause (3) makes it clear that, without limiting subsection (2),
the scheme set up by the Bill does not apply to the certification of
a document by the keeper of a register of public documents, in
relation to an extract from or a copy of a document in that
register; or by the holder of any other official record, in relation
to an extract from or a copy of that record. That means, for
20
example that keepers of records such as those at the Births,
Deaths and Marriages Registry or of academic records at a
university may provide copies of relevant documents under their
control in accordance with their own processes and are not
required to follow the process outlined in the Bill.
Clause 41 provides for a process for certifying copies of documents, which
requires an authorised certifier, before certifying a copy of an
original document, to inspect the original document to ensure that
it is an original document and to inspect the copy to ensure it is
identical to the original document.
Note original document is defined in clause 3 to mean a
document that an authorised certifier, having used his or her best
judgment, determines is original, or is a document or extract that
has been certified as a true extract from or copy of a register of
public documents or any other official record by the keeper or
holder of that register or record.
The definition of original document recognises that the certifier
cannot be expected to carry out a forensic examination of the
original document. Rather the expectation is that the certifier
will take reasonable steps to assure themselves that the relevant
document is an "original". The Victorian Justice of the Peace
Handbook suggests that an Honorary Justice inspects the original
document to satisfy themselves that it is the original version and
that it is an authentic document that has not been altered in any
way. It suggests an Honorary Justice should look for--
• use of other covering agents or areas of different tones
of white on the page;
• identity cards--scratching, increased thickness,
roughness of surface, raised edges, lack of consistent
finish;
• typographical or grammatical errors in supposedly
authentic documents;
• stains around handwritten areas--suggest that the
original information may have been erased and
replaced.
Also note clause 3 provides that identical does not mean of the
same size or colour, provided that the use of a different size or
colour does not result in the loss of any material information.
21
Subclause (2) provides that an authorised certifier may certify a
copy of an original document by legibly writing on or stamping
the copy with the prescribed words, signing and dating the copy,
and legibly writing or stamping the copy with his or her name,
qualification and address. The address provided may be either
the authorised certifier's personal or professional address.
Clause 42 provides for a process for certifying a copy of a certified copy
of an original document. It specifies that before certifying a
copy of a certified copy of an original document, an authorised
certifier must inspect the certified copy of the original document
to ensure that it appears to be authentic, and inspect the copy
of the certified copy of the original document to ensure it is
identical to the certified copy of the original document.
Identical and original document have the same meaning as
mentioned in clause 41 above. "Authentic" is not defined by the
Bill and has its ordinary English meaning.
Subclause (2) provides that an authorised certifier may certify
a copy of a certified copy of an original document by legibly
writing on or stamping the copy with the prescribed words,
signing and dating the copy of the certified copy and legibly
writing on or stamping the copy of the certified copy with his or
her name, qualification and address. The address provided may
be either the authorised certifier's personal or professional
address.
Clause 43 provides for a process of certifying multiple page documents.
It provides that in the case of a multiple page document, an
authorised certifier may, instead of using the process set out in
section 41(2) or 42(2), certify the copy of the document and any
attachments by signing or initialling each page of the copy,
numbering each page of the copy (for example page one of 26),
legibly writing on or stamping the copy with the prescribed
words, signing and dating the copy and legibly writing on or
stamping the copy with the qualification and the address of the
authorised certifier. The address provided may be either the
authorised certifier's personal or professional address.
Clause 44 provides for the possibility of certifying documents that are
written in a language other than English. It provides that there is
nothing in Part 5 of the Bill concerning certification that prevents
an authorised certifier from certifying a document in a language
other than English, as long as the authorised certifier is of the
22
opinion that the content of the copy and the original document
are actually identical.
Clause 45 provides that minor non-compliance with a provision of Part 5
of the Bill concerning certification does not necessarily mean
that a certified copy will be invalid. A certified copy is not
invalid merely because of an inadvertent non-compliance with a
requirement imposed by the Bill that does not materially affect
the nature of the certification.
Division 2--General certification offences
Clause 46 provides that Division 2 of Part 5, which relates to offences
generally concerning certification, applies whether certification
occurred in accordance with the Bill (because the Part 5 of the
Bill was specifically applied) or otherwise. These offences are
intended to replicate the effect of section 142(d) and (e) of the
Evidence (Miscellaneous Provisions) Act 1958 as they would
apply to the circumstances described in clauses 47 and 48 of the
Bill.
Clause 47 provides that a person commits an offence punishable by
600 penalty units or 5 years imprisonment or both if he or she
presents a document purporting it to be a true copy of an original
document while knowing that the document that he or she is
presenting is not in fact a true copy of the original document.
This offence is intended to replicate the effect of section 142(e)
of the Evidence (Miscellaneous Provisions) Act 1958 as it
would apply to the circumstances described in clause 47 of the
Bill.
Clause 48 provides that a person commits an offence punishable by
600 penalty units or 5 years imprisonment or both if he or she
certifies a copy of a document as a true copy of an original
document while knowing that the purported original document is
not in fact an original document, or the purported true copy is not
in fact a true copy. This offence is intended to replicate the effect
of section 142(d) of the Evidence (Miscellaneous Provisions)
Act 1958 as it would apply to the circumstances described in
clauses 48 of the Bill.
Note original document is defined in clause 3 to mean a
document that an authorised certifier, having used his or her best
judgment, determines is original, or is a document or extract that
23
has been certified as a true extract from or copy of a register of
public documents or any other official record by the keeper or
holder of that register or record.
Clause 49 provides that if a person makes a false or misleading statement,
knowing that the statement is false or misleading as to either
the circumstances in which the certification of a true copy of a
document or a document purporting to be a certified true copy
of a document was made, or whether or not a certified true copy
of a document or a document purporting to be a certified true
copy of a document was actually made, then that person commits
an offence punishable by 10 penalty units. This offence is
analogous to section 126B of the Evidence (Miscellaneous
Provisions) Act 1958 that relates to false and misleading
statements about affidavits.
Part 6--General
Clause 50 provides that if a person intentionally makes a false statement,
whether orally or in writing, under oath or affirmation or in an
affidavit then that person is liable to the penalties of perjury.
Section 314 of the Crimes Act 1958 provides that perjury is
punishable by a maximum of 15 years imprisonment.
Subclause (2) provides that irrespective of whether the oath,
affirmation or affidavit is made under this Bill, or made or
required by or under any other Act, whether passed before, on
or after the commencement of this clause, subsection (1) of this
clause applies.
Clause 51 provides for an offence pursuant to section 20(1) to be an
infringement offence, so that a police officer may serve an
infringement notice on a person who the police officer has
reason to believe has committed an offence against that section.
That offence is subject to a penalty of one penalty unit.
Clause 52 provides for the power of the Governor in Council to
make regulations for or with respect to prescribing forms or
information and fees, as well as who may be administering
officers, authorised affidavit takers, statutory declaration
witnesses and authorised certifiers.
24
It also provides the Governor in Council power to make
regulations with respect to prescribing procedures to facilitate
electronic communication of documents, including but not
limited to the appending of electronic signatures, as well as
prescribing procedures for the use of interpreters in relation to
anything done under the Bill and for any other matter or thing
required or permitted by the Bill to be prescribed or necessary to
be prescribed to give effect to the Bill.
Subclause (2) provides that the regulations may be of general or
limited application and differ according to differences in time,
place or circumstances as well as confer a discretionary authority
or impose a duty on a specified person or body or class of
persons or bodies.
It also provides that the regulations may, in a specified case or
class of cases, provide for the exemption of persons or things or
a class of persons or things from any of the provisions of the
regulations, whether unconditionally or on specified conditions,
and either wholly or to any extent that is specified.
It further provides that a penalty not exceeding 20 penalty units
may be imposed for a contravention of the regulations.
Part 7--Transitional provisions, repeals and
consequential amendments
Division 1--Repeals and transitional provisions
Clauses 53 to 59 provide for the repeal of various sections of the
Evidence (Miscellaneous Provisions) Act 1958 (EMPA) that relate to
the administration of oaths, affirmations, affidavits and declarations,
attestations, verifications, acknowledgements, notarial acts, perjury,
abolition of extra-judicial oaths, form of oaths and affirmations in writing
as well as regulations dealing with transitional matters.
Clause 53 repeals section 42Y of the EMPA, which relates to the
administration of oaths and affirmations.
Clause 54 repeals Divisions 1, 2, 3, 4, 5, 6, 9, 10 and 11 of Part IV of
EMPA, which relates to oaths, affirmations, affidavits and
declarations.
Clause 55 repeals Part V of EMPA, which relates to attestations,
verifications, acknowledgments and Notarial Acts etc.
25
Clause 56 repeals section 141 EMPA, which relates to persons making
wilful false statements on oath, declaration etc. being guilty of
perjury.
Clause 57 repeals section 151 EMPA, which relates to the abolition of
extra-judicial oaths.
Clause 58 repeals the Third Schedule to EMPA, which relates to the form
of oaths and affirmations in writing.
Clause 59 provides that the Governor in Council may make regulations
containing provisions of a transitional nature, including matters
of an application or savings nature, arising as a result of the
enactment of the Oaths and Affirmations Act 2017, including
the repeals and amendments made by the Act.
Subclause (2) provides that regulations made under this section
may have a retrospective effect to a day on or from the date that
the Act receives Royal Assent, that they may be of limited or
general duration, differ according to differences in time, place
or circumstances, leave any matter or thing to be decided by a
specified person or specified class of persons, and provide for
the exemption of persons or proceedings or a class of persons or
proceedings from any of the regulations made under this section.
Subclause (3) provides that regulations made under this section
have effect despite anything to the contrary in any Act (other than
this Act or the Charter of Human Rights and Responsibilities
Act 2006) or in any subordinate instrument.
Subclause (4) provides that this section is repealed on the second
anniversary of the day on which it comes into operation.
Division 2--Consequential amendments to Evidence
(Miscellaneous Provisions) Act 1958
Clauses 60 to 62 provide for certain consequential amendments to the
Evidence (Miscellaneous Provisions) Act 1958 to correspond with the
commencement of the new Oaths and Affirmations Act 2017.
Clause 60 substitutes a new heading for the current heading to Part IV
of the Evidence (Miscellaneous Provisions) Act 1958.
The new substituted heading is "Part IV--Particular affidavits".
The current heading refers to oaths, affirmations, affidavits and
declarations, which, apart from the circumstances prescribed in
section 126B of the Evidence (Miscellaneous Provisions)
26
Act 1958, will no longer be provided for by that Act, but will
instead be provided for by the new Oaths and Affirmations
Act 2017.
Clause 61 substitutes a new heading for the current heading to Part VII of
the Evidence (Miscellaneous Provisions) Act 1958. The current
heading "perjury forgery false certificates etc." is replaced by
"relating to false documents and false certificates". Section 141
of the Evidence (Miscellaneous Provisions) Act 1958 which
deals with persons making false statements on oath or declaration
and provides that they are guilty of perjury are replaced by
clause 50 and clause 36 of the Bill. Clause 50 provides that a
person who makes a false statement by oath, affirmation or
affidavit is guilty of perjury. Clause 36 provides that a person
who makes a false statutory declaration is guilty of an offence
punishable by 600 penalty units or 5 years or both.
Clause 62 repeals paragraphs (a) and (b) of section 152(2) of the
Evidence (Miscellaneous Provisions Act 1958), which provide
for prescribing classification for the purpose of those authorised
to witness statutory declarations and those authorised to take
affidavits, as these are now provided for respectively by
clauses 30(2)(c) and 12(1)(g) of the Bill.
This clause also omits "other" in paragraph (c) of section 152(2)
of the Evidence (Miscellaneous Provisions) Act 1958, as there
are currently 3 subclauses in section 152(2) of the Evidence
(Miscellaneous Provisions) Act 1958 but the first 2, as referred
to above, will be repealed so there is no need for a reference to
"other" regulation making powers in the remaining clause.
Division 3--Consequential amendment of other Acts
Clauses 63 to 69 provide for consequential amendments to other Acts.
Clause 68 in particular provides that on the coming into operation of an item
in Schedule 2, each Act specified is amended as set out in the item.
Clause 63 provides for amendments to section 314(3) of the Crimes
Act 1958 to remove the references to "declaration" as this section
provides for the offence of perjury which involves making a false
oath or affirmation. The reference to declaration is no longer
appropriate in this section as making a false statutory declaration
is separately provided for by clause 36 of the new Bill.
27
Clause 64 provides for amendment of the note at the foot of the Second
Schedule to the Constitution Act 1975 so that for the forms of
administering oaths and affirmations, the note refers to Part 2 of
the Oaths and Affirmations Act 2017 rather than section 100 of
the Evidence (Miscellaneous Provisions) Act 1958.
Clause 65 provides for amendments of the Evidence Act 2008--
• in section 13(3), (4) and (5) of that Act, "or affirmed"
is inserted after "sworn" to reflect that clause 7 of the
Bill provides that a person has a choice of taking an
oath or making an affirmation;
• in section 13(4) and (5) of that Act, "or evidence that
is not affirmed" is inserted after "unsworn" to reflect
that clause 7 of the Bill provides that a person has a
choice of taking an oath or making an affirmation, so
that, conversely, evidence that is provided for by these
subsections that is not made on oath or by affirmation
is evidence that is unsworn or not affirmed;
• a new subsection is inserted after section 21(5) of that
Act as follows--
"(6) For the purposes of subsection (4), in the
case of a child or a person with a cognitive
disability, the following words are taken to
be a similar form of oath or affirmation--
"I promise to tell the truth.".
This reflects clause 8(3) of the Bill, which clarifies that
for a child or a person with a cognitive disability the
form of oath or affirmation--"I promise to tell the truth"
is acceptable as a "similar form" of oath or affirmation
to that provided in Schedule 1 of the Bill;
• a consequential amendment is made to section 171(3)(a)
of that Act.
Section 171 of the Evidence Act 1958 provides that
certain persons are authorised to give evidence about
the contents of business documents, tags, labels and
other matters. Section 171(3) of that Act provides
that a person who is authorised by section 124 of the
Evidence Act 1958 to take an affidavit in a country
or place outside of Victoria is authorised to take the
affidavit of those authorised to give evidence about the
28
contents of business documents, tags, labels and other
matters. As section 21 of the Oaths and Affirmations
Act 2017 will, instead of section 124 of the Evidence
Act 1958, provide for those authorised to take affidavits
in a country or place outside of Victoria, the reference is
accordingly altered--
• in the heading to section 186 of that Act,
"or affirming" is inserted to reflect that clause 7
of the Bill provides for a person having the
choice of swearing an oath or making an
affirmation;
• for note 1 at the foot of section 186 of that Act a
new note is substituted as follows--
"1 Part 3 of the Oaths and Affirmations
Act 2017 relates to affidavits.".
That note currently refers to the sections of
the Evidence Act 1958 that relate to making
affidavits. Those sections will be replaced by
Part 3 of the Oaths and Affirmations Act 2017,
so the reference is accordingly altered.
Clause 66 provides for amendments to the Interpretation of Legislation
Act 1984. Section 38 of that Act provides for a definition of
statutory declaration as meaning a declaration under Division 4
of Part IV of the Evidence (Miscellaneous Provisions)
Act 1958. Statutory declarations will instead be provided for
by Part 4 of the Oaths and Affirmations Act 2017. Section 38
of the Interpretation of Legislation Act 1984 is amended as
follows--
"statutory declaration means a statutory declaration under Part 4
of the Oaths and Affirmations Act 2017;".
Further, for the sake of clarity and modernising terms, the
phrase "solemn declaration" is to be repealed. Section 38 of the
Interpretation of Legislation Act 1984 that also refers to that
term, is amended to repeal the definition of solemn declaration.
29
Clause 67 provides for amendment to the Public Notaries Act 2001 to
insert, after section 9, a new section 9A.
Section 9A clarifies that Parts 2, 3, and 4 of the Oaths and
Affirmations Act 2017 apply, with any necessary modification,
if a public notary is performing any notarial act.
Clause 68 provides for further consequential amendments so that on
the coming into operation of an item in Schedule 2, each Act
specified in the heading to that item is amended as set out in the
item.
Division 4--Repeal of amending provisions
Clause 69 provides for the repeal of amending provisions so that
Divisions 2, 3 and 4 and Schedule 2 are repealed on 1 September
2019, noting that the repeal of these provisions does not affect
the continuing operation of the amendments made by them
(see section 15(1) of the Interpretation of Legislation
Act 1984).
Schedule 1--Form of oath and affirmation
Schedule 1 provides for the form of oaths and affirmations.
Schedule 2--Consequential amendments
Schedule 2 provides for consequential amendments to 141 other Acts, as
outlined in Schedule 2.
These amendments include the following (or similar)
provisions--
• "or by affirmation" is inserted after "oath" in provisions
that currently do not include a reference to affirmations.
This is to ensure that, as provided by clause 7 of the
Bill, a person has a choice as to whether to make an
oath or an affirmation;
• "or affirmed" is inserted after "sworn" in provisions
that do not include such a reference. This is to ensure
that, as provided by clause 7 of the Bill, a person has a
choice as to whether to make an oath or an affirmation;
30
• references to persons authorised to take affidavits under
the Evidence (Miscellaneous Provisions) Act 1958 are
altered to references to "an authorised affidavit taker"
within the meaning of the Oaths and Affirmations
Act 2017;
• references to "declaration" are replaced by references
to "statutory declaration" to clarify that the documents
being referred to are statutory declarations as provided
for pursuant to the Bill;
• references in Acts to making a false statutory
declaration carrying the penalty of perjury are replaced
by references to clause 36 of the Bill which provides
that a false statutory declaration is a separate offence;
• references to a person specified as a statutory
declaration witness in the Evidence (Miscellaneous
Provisions) Act 1958 being authorised to certify
certain documents are amended to refer to an authorised
certifier within the meaning of the Bill;
• references to taking oaths in accordance with the
Evidence (Miscellaneous Provisions) Act 1958 are
replaced by references to taking oaths in accordance
with the Bill;
• references to taking a statutory declaration are replaced
by references to witnessing a statutory declaration;
• references to an authorised witness when referring to
affidavits are replaced by references to an authorised
affidavit taker;
• references to an authorised witness when referring to
statutory declarations are replaced by references to a
statutory declaration witness within the meaning of the
Bill;
• references to "oath, whether oral or by affidavit" are
replaced by references to "oath or by affirmation or by
affidavit";
31
• references to certain processes of certification are
replaced by references to certification in accordance
with Part 5 of the Bill;
• references to certain forms of oath are replaced by
forms that provide for the possibility of a person making
an affirmation or an oath.
32