Oaths and Affirmations Act 2018 (Vic)
Version No. 008
Oaths and Affirmations Act 2018
No. 6 of 2018
Version incorporating amendments as at
1 July 2021
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Application of this Act
5Act binds the Crown
Part 2—Oaths and affirmations
6Application of Part
7Choice of oath or affirmation
8Form of oaths and affirmations
9Oath or affirmation to be said aloud
10Effect on oath of religious texts and beliefs
11Administration to multiple persons
12Powers of courts, certain officers of courts and other persons to administer oaths and affirmations
13Appointment by interstate or overseas court or body to take or receive evidence
14Officer must refuse to administer oath or affirmation in certain circumstances
15Reasonable modifications may be made
16Audio and audio-visual evidence
17Minor non-compliance does not affect validity
Part 3—Affidavits
18Application of Part
18AElectronic signatures and initials
19Affidavits made in Victoria
20Offence to require payment of fee to take affidavit
21Affidavits made out of Victoria
22Offence to take affidavit if not authorised affidavit taker and offence to purport to be authorised affidavit taker
23Prescribed form of affidavit
24Authorised affidavit taker authorised to administer oath or affirmation
25Signature and oath requirements—deponent
26Requirements of authorised affidavit taker
27Jurat
28Affidavit by illiterate, blind or cognitively impaired person
28AInability to comply with requirements—admission into evidence
28BAudio visual procedures do not limit other duties and obligations
29Minor non-compliance does not affect validity
Part 4—Statutory declarations
29AElectronic signatures and initials
30Statutory declarations made in Victoria
30ARequirements if statutory declaration made or witnessed by audio visual link or in electronic form
30BAudio visual procedures do not limit other duties and obligations
31Offence to take statutory declaration if not statutory declaration witness and offence to purport to be statutory declaration witness
32Provision of assistance to person making statutory declaration
33Statutory declarations made out of Victoria
34Reasonable modifications may be made
35Statutory declaration by illiterate, blind or cognitively impaired person
36Offence to make false statutory declaration
37False or misleading statement as to making of statutory declaration
38Minor non-compliance does not affect validity
Part 5—Certification
Division 1—Authorised certifiers
39Authorised certifiers
Division 2—Scheme for certification of copies of original documents
40Application
41Process for certifying copies of documents
42Process for certifying copy of a certified copy
43Multiple page documents
44Documents in languages other than English
45Minor non-compliance does not affect validity
Division 3—General certification offences
46Application
47Offence to present false copy of a document for certification
48Offence to certify certain copies of documents
49False or misleading statement as to certification of copy of document
Part 6—General
50Perjury to make false statement by oath, affirmation or affidavit
51Infringement offences
52Regulations
Part 7—Transitional provisions, repeals and consequential amendments
Division 1—Repeals and transitional provisions
53Administration of oaths and affirmations
54Oaths affirmations affidavits declarations
55Attestations verifications acknowledgements notarial Acts etc.
56Persons making wilful false statements on oath, declaration etc. guilty of perjury
57Abolition of extra-judicial oaths
58Form of oath and affirmation and affirmations in writing
60Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021
Schedule 1—Form of oath and affirmation
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 008
Oaths and Affirmations Act 2018
No. 6 of 2018
Version incorporating amendments as at
1 July 2021
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to re-enact and modernise the law relating to oaths, affirmations, affidavits and statutory declarations; and
(b)to establish a scheme for the certification of copies of documents; and
(c)to repeal Divisions 1 to 11 of Part IV, Part V and other provisions of the Evidence (Miscellaneous Provisions) Act 1958; and
(d)to make consequential amendments to the Evidence Act 2008, the Constitution Act 1975, the Interpretation of Legislation Act 1984 and other Acts.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 March 2019, it comes into operation on that day.
3Definitions
In this Act—
administering officer means any person authorised to administer oaths or affirmations by or under this Act or any other Act or by convention;
Australian consular officer means a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in a country or place outside Australia—
(a)ambassador;
(b)high commissioner;
(c)Minister;
(d)head of mission;
(e)commissioner;
(f)chargé d'affaires;
(g)counsellor or secretary at an embassy, high commissioner's office, legation or other post;
(h)consul-general;
(i)consul;
(j)vice-consul;
(k)trade commissioner;
(l)consular agent;
(m)envoy;
authorised affidavit taker means a person authorised to take an affidavit by or under Part 3;
authorised certifier means a person authorised to certify a copy of a document by or under Part 5;
certify does not include attest;
child means a person under the age of 18 years;
cognitive impairment includes an intellectual disability, an acquired brain injury, autism spectrum disorder and a neurological impairment;
exhibit includes annexure or attachment;
honorary justice has the same meaning as it has in the Honorary Justices Act 2014;
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;
judicial officer means any of the following—
(a)a Judge or reserve Judge of the Supreme Court;
(b)an Associate Judge or reserve Associate Judge of the Supreme Court;
(c)a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT;
(d)a judge of the County Court;
(e)a reserve judge of the County Court;
(f)an associate judge of the County Court;
(g)a reserve associate judge of the County Court;
(h)a person referred to in paragraph (d) or (e) who is appointed or assigned to VCAT;
(i)a magistrate or reserve magistrate;
(j)a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT;
(k)a reserve coroner;
(l)a person appointed under section 94 of the Coroners Act 2008;
(m)a judicial registrar of the following courts—
(i)the Supreme Court;
(ii)the County Court;
(iii)the Magistrates' Court;
(iv)the Children's Court;
(v)the Coroners Court;
jurat means 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;
original document, in Part 5, means a document that an authorised certifier, having used the authorised certifier's best judgment, determines is—
(a)original; or
(b)a document or extract that has been certified, otherwise than under Division 2 of that Part, 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;
person acting judicially includes the following—
(a)any arbitrator;
(b)any person or body having by law or by consent of parties authority to hear, receive and examine evidence;
(c)any officer in any public department having in the discharge of the person's duties authority to examine evidence;
public document has the same meaning as it has in the Evidence Act 2008;
statutory declaration witness means a person authorised to witness a statutory declaration by or under Part 4.
4Application of this Act
Nothing in this Act limits—
(a)in the case of the Supreme Court, the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b)in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or
(c)in the case of a tribunal, the tribunal's statutory jurisdiction; or
(d)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.
5Act binds the Crown
This 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
6Application of Part
(1)This Part sets out 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.
(2)Only section 12 of this Part applies in respect of an oath taken or an affirmation made by—
(a)a witness in a proceeding to which the Evidence Act 2008 applies; or
(b)a person acting as an interpreter in a proceeding to which that Act applies.
Note
Section 4 of the Evidence Act 2008 specifies the proceedings to which that Act applies. Division 2 of Part 2.1 of that Act sets out the requirements for oaths and affirmations in respect of proceedings to which that Act applies but does not specify who may administer an oath or affirmation.
7Choice of oath or affirmation
(1)A person who is required to take an oath or make an affirmation may choose whether to take an oath or make an affirmation.
(2)The administering officer must inform the person that the person has this choice, unless the officer is satisfied that the person knows that the person has the choice.
(3)The administering officer may direct the person to make an affirmation if—
(a)the person refuses to choose whether to take an oath or make an affirmation; or
(b)it is not reasonably practicable for the person to take an appropriate oath.
8Form of oaths and affirmations
(1)An oath may be taken or an affirmation may be made in accordance with the form of Schedule 1 or in a similar form unless the oath or affirmation is required to be in a particular form—
(a)specified by or under any other Act; or
(b)by convention or otherwise.
Examples
Section 88AA of the Constitution Act 1975. Section 16(1)(c) of the Legal Profession Uniform Law (Victoria).
(2)An affirmation made in accordance with subsection (1) has the same effect for all purposes as an oath.
(3)For the purposes of subsection (1), without limiting the meaning of a similar form, in the case of a child or a person with a cognitive impairment, the following words are taken to be a similar form of oath or affirmation—
"I promise to tell the truth.".
Note
Other Acts or regulations may also give a person power to administer an oath or affirmation and provide for the form or manner of the administration of an oath or affirmation.
9Oath or affirmation to be said aloud
(1)A person who takes an oath or makes an affirmation must say the words of the oath or affirmation aloud in the presence of the administering officer.
(2)For the purposes of subsection (1), an oath or affirmation may be said aloud in the physical presence of the administering officer or by audio visual link or audio link.
10Effect on oath of religious texts and beliefs
(1)A person may use a religious text in taking an oath, but is not required to do so.
(2)A person may take an oath even if the person's religious or spiritual beliefs do not include a belief in the existence of a god.
(3)An oath is effective even if the person who takes it does not have—
(a)a religious belief; or
(b)a religious belief of a particular kind.
(4)Despite anything to the contrary in this Act, the form of oath made by a person—
(a)need not include a reference to a god; and
(b)may instead refer to the basis of the person's beliefs.
11Administration to multiple persons
(1)An oath may be taken or an affirmation may be made by more than one person at the same time.
(2)The words of an oath or affirmation may be altered and the process for administering the oath or affirmation adapted to enable the oath or affirmation to be administered to more than one person at the same time.
12Powers of courts, certain officers of courts and other persons to administer oaths and affirmations
(1)The following have the power to administer an oath or affirmation—
(a)a court, tribunal, judicial officer or a person acting judicially—
(i)to any witness who is lawfully called before the court, tribunal, judicial officer or person acting judicially; or
(ii)to any interpreter in a proceeding in the court or tribunal or before a judicial officer or person acting judicially; or
(iii)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;
(b)a person who is performing duties in relation to a court or tribunal;
(c)a person who is performing duties in relation to a court or tribunal who is authorised by any of the following for any purpose connected with the person's duties—
(i)the court or tribunal;
(ii)a judicial officer or a member of the tribunal;
(iii)any rules of court or orders, practice directions or practice notes regulating the procedure of the court or tribunal;
(d)a person performing duties as authorised by a person acting judicially for any purpose connected with the first person's duties;
(e)a person who is directed to take an examination in any proceeding in a court or tribunal or before a person acting judicially;
(f)a person authorised to take or receive evidence by section 13;
(g)any prescribed person or person who is a member of a prescribed class of persons.
Note
Other Acts or regulations may also give a person power to administer an oath or affirmation.
(2)A person or a person belonging to a class of persons specified by or under a specific Act or a specific statutory rule to administer an oath or affirmation in specified circumstances or in a specified manner is authorised to administer an oath or affirmation for that purpose.
(3)A person must not administer an oath or affirmation unless—
(a)the person is authorised to do so by or under this Act or another Act or by convention; or
(b)the oath or affirmation is made in respect of a matter or thing—
(i)touching the preservation of the peace; or
(ii)touching any proceedings before the Legislative Council or Legislative Assembly or any committee of the Legislative Council or Legislative Assembly; or
(c)the oath or affirmation is 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; or
(d)the oath or affirmation is for an oath of office.
13Appointment by interstate or overseas court or body to take or receive evidence
If a judicial officer, a person acting judicially or a person who, or court or body that, is authorised under the law of a jurisdiction outside Victoria to take or receive evidence on oath or affirmation in that jurisdiction appoints a person to take or receive evidence in Victoria—
(a)if the person appointed is a court, a judicial officer or a person acting judicially, that person has the power to take or receive that evidence; or
(b)in any other case, that person only has the power to take or receive the evidence if the person has first obtained the consent of the Attorney-General.
14Officer must refuse to administer oath or affirmation in certain circumstances
If it appears to an administering officer that a person taking an oath or making an affirmation is unable to understand the nature of an oath or affirmation, the officer must refuse to administer the oath or affirmation.
15Reasonable modifications may be made
Without limiting section 14, the administering officer 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 the person from doing so in accordance with this Part.
Examples
1A hearing impaired person may read and sign an oath or affirmation instead of saying it aloud.
2A person who is unable to speak may be able to listen to an oath or affirmation being read and nod assent.
16Audio and audio-visual evidence
An oath to be taken or an affirmation to be made by a witness giving evidence by audio-visual link or audio link may be administered either—
(a)by means of the audio-visual link or audio link, in as nearly as practicable the same way as if the witness were to give evidence at the courtroom or other place where the court, tribunal or person acting judicially is sitting; or
(b)at the direction of, and on behalf of, the court, tribunal or person acting judicially at the remote point by a person authorised by the court, tribunal or person acting judicially.
17Minor non-compliance does not affect validity
An oath or affirmation is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the oath or affirmation.
Part 3—Affidavits
18Application of Part
(1)This Part—
(a)sets out basic requirements for affidavits; and
(b)applies unless a specific requirement of any other Act is inconsistent with the requirements of this Part.
Note
More specific requirements may be found in other Acts such as the Evidence Act 2008 or in rules of court.
(2)Nothing in this Part limits or affects the powers of a court or tribunal to make rules of court in relation to affidavits.
18AElectronic signatures and initials
A requirement under this Part for a deponent or an authorised affidavit taker to sign or initial an affidavit, a jurat, an exhibit, a certificate or other document attached to an affidavit is satisfied if the deponent or the authorised affidavit taker signs or initials the affidavit, jurat, exhibit, certificate or other document by electronic means.
19Affidavits made in Victoria
(1)The following persons are authorised affidavit takers for the purpose of a person making any affidavit within Victoria for use 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—
(a)a judicial officer;
(b)an associate to a judicial officer;
(c)an honorary justice;
(d)the prothonotary or a deputy prothonotary of the Supreme Court;
(e)the registrar of probates or an assistant registrar of probates;
(f)the registrar or a deputy registrar of the County Court;
(g)the principal registrar, a registrar or a deputy registrar of the Magistrates' Court;
(h)the principal registrar, a registrar or a deputy registrar of the Children's Court;
(i)the principal registrar, deputy registrar or a registrar of VCAT;
(j)the principal registrar or a registrar of the Coroners Court;
(k)a member of VCAT;
(l)a member or former member of either House of the Parliament of Victoria;
(m)a member or former member of either House of the Parliament of the Commonwealth;
(n)a public notary;
(o)an Australian legal practitioner;
(p)a police officer of or above the rank of sergeant or for the time being in charge of a police station;
(q)a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification;
(r)a senior officer of a Council as specified in section 48(5) of the Local Government Act 2020;
(s)a person registered as a patent attorney under Chapter 20 of the Patents Act 1990 of the Commonwealth;
(t)a fellow of the Institute of Legal Executives (Victoria) ACN 004 670 928;
(u)a person acting judicially;
(v)any other officer or person empowered, authorised or permitted by or under any Act or rules of a court or rules of a tribunal to take affidavits;
(w)any prescribed person or person who is a member of a prescribed class of persons.
(2)A court, tribunal or person acting judicially must take judicial and official notice of the seal or signature of any person referred to in subsection (1) on, attached or appended to any affidavit.
(3)For the purpose of subsection (2), judicial and official notice of the seal or signature of the person means that there is a presumption that, unless the contrary is proved—
(a)the person signed the affidavit; and
(b)the person was an authorised affidavit taker at the time of taking the affidavit.
(4)An Australian legal practitioner is not prevented from taking any affidavit by reason only that the legal practitioner is acting for any of the parties to the proceeding, matter or instrument in respect of which the affidavit is sworn or affirmed.
(5)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.
20Offence to require payment of fee to take affidavit
(1)Subject to subsection (2), an authorised affidavit taker referred to in section 19 must not request, require or accept the payment of a fee for—
(a)administering an oath or affirmation for an affidavit; or
(b)signing an affidavit.
Penalty:10 penalty units.
Note
Section 46 of the Honorary Justices Act 2014 provides that it is an offence 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.
(2)It is not an offence for a public notary to request, require or accept 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.
21Affidavits made out of Victoria
(1)In addition to a person referred to in section 19, the following persons are authorised affidavit takers for the purpose of 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—
(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 and Investment 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 that place.
(2)If by any Act or subordinate instrument an affidavit is required, authorised or permitted to be administered or made before a justice of the peace or a bail justice, it is sufficient if the affidavit is made before a justice of the peace or bail justice (however described) for that place outside Victoria where the affidavit is made.
(3)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.
(4)For the purpose of subsection (3), judicial and official notice of the signature of the justice of the peace or bail justice for a place outside Victoria means that there is a presumption that, unless the contrary is proved—
(a)the justice of the peace or bail justice signed the affidavit; and
(b)the justice of the peace or bail justice was an authorised affidavit taker at the time of taking the affidavit.
22Offence to take affidavit if not authorised affidavit taker and offence to purport to be authorised affidavit taker
(1)A person who is knowingly not an authorised affidavit taker must not take an affidavit.
Penalty:60 penalty units or imprisonment for 6 months or both.
(2)A person who is knowingly not an authorised affidavit taker must not represent that the person is an authorised affidavit taker.
Penalty:10 penalty units.
23Prescribed form of affidavit
An affidavit may be in the prescribed form.
24Authorised affidavit taker authorised to administer oath or affirmation
(1)An authorised affidavit taker has the power to administer an oath or affirmation to a deponent for the purpose of taking an affidavit.
(2)An oath or affirmation must be administered in accordance with Part 2.
25Signature and oath requirements—deponent
(1)Subject to section 28, the deponent of an affidavit must do the following in the presence (whether physically or by audio visual link) of an authorised affidavit taker—
(a)sign or initial any alteration to the affidavit;
(b)sign each page of the affidavit;
(c)sign the affidavit;
(d)if the affidavit refers to a document, sign a certificate attached to the document identifying the document as an exhibit to the affidavit;
(e)take the oath or make the affirmation in accordance with Part 2.
(2)The deponent must swear or affirm the affidavit by saying the prescribed oath or affirmation aloud in the presence (whether physically or by audio visual link) of the authorised affidavit taker, unless the deponent has a disability that prevents the deponent from doing so.
26Requirements of authorised affidavit taker
(1)An authorised affidavit taker before whom an affidavit is sworn or affirmed must do the following—
(a)sign or initial any alteration to the affidavit;
(b)sign each page of the affidavit;
(c)administer the oath or affirmation to the deponent in accordance with Part 2;
(d)comply with section 27.
(2)If an affidavit refers to a document, the authorised affidavit taker must attach a certificate to the document identifying the document as an exhibit to the affidavit and do the following—
(a)sign and date the certificate;
(b)write, type or stamp below the affidavit taker's signature on the certificate the details referred to in section 27(1)(c).
Note
A certificate under this subsection may be prepared or produced by a person other than the authorised affidavit taker.
(3)An authorised affidavit taker must ensure that an affidavit is dated.
(4)Part 5 does not apply to a certificate attached to an exhibit under this section.
(5)If an affidavit has been signed and sworn or affirmed by a deponent under section 25 by audio visual link, an authorised affidavit taker may use a scanned or electronic copy of the affidavit for the purposes of complying with the requirements of this section and section 27.
Note
See the offence in section 126B of the Evidence (Miscellaneous Provisions) Act 1958.
27Jurat
(1)An authorised affidavit taker before whom any affidavit is made must do the following—
(a)state truly in the jurat at what place and on what date the affidavit was sworn or affirmed;
(b)complete and sign the jurat;
(c)legibly write, type or stamp below that affidavit taker's signature the following—
(i)the authorised affidavit taker's name and address (whether personal or professional);
(ii)a statement of the capacity in which the affidavit taker has authority to take the affidavit.
(1A)If an affidavit has been signed and sworn or affirmed by a deponent by audio visual link and the authorised affidavit taker has used a scanned or electronic copy of the affidavit for the purposes of complying with the requirements of section 26, the authorised affidavit taker, in addition to any other requirements of this section, must state that—
(a)the affidavit was signed and sworn or affirmed by the deponent by audio visual link; and
(b)the authorised affidavit taker has used a scanned or electronic copy of the affidavit and not the original in completing the jurat requirements under subsection (1).
(2)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—
(a)before the person purporting to have attested the affidavit in the jurat; and
(b)on the day, and in the place, attested to in the jurat.
28Affidavit by illiterate, blind or cognitively impaired person
(1)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 taker.
(2)If an affidavit is made by an illiterate deponent, a blind deponent or a deponent with a cognitive impairment and a certification 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
See also section 14.
28AInability to comply with requirements—admission into evidence
A court or tribunal may admit a purported affidavit that does not comply with section 25, 26 or 27 into evidence in a particular proceeding if—
(a)the purported affidavit states the reason why the deponent or authorised affidavit taker (as the case requires) was unable to comply with section 25, 26 or 27; and
(b)the court or tribunal, in considering the reason, is satisfied that it is in the interests of justice to admit the purported affidavit into evidence.
28BAudio visual procedures do not limit other duties and obligations
(1)The use of audio visual procedures under this Part in relation to affidavits applies subject to any express contrary intention imposed by any other duty or obligation under any Act (including a Commonwealth Act) or at common law applying to a person as a deponent or an authorised affidavit taker in relation to affidavits.
(2)Nothing in this Part limits any requirement imposed by this Part by which a person must not write or do something without first being satisfied of certain matters.
29Minor non-compliance does not affect validity
An affidavit is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the affidavit.
Part 4—Statutory declarations
29AElectronic signatures and initials
A requirement under this Part for a person making a statutory declaration or a statutory declaration witness to sign or initial a statutory declaration, an exhibit, a certificate or other document attached to a statutory declaration is satisfied if the person making a statutory declaration or a statutory declaration witness signs or initials the statutory declaration, exhibit, certificate or other document by electronic means.
30Statutory declarations made in Victoria
(1)A statutory declaration must be in the prescribed form.
(2)A statutory declaration must be declared in the presence (whether physically or by audio visual link) of—
(a)an authorised affidavit taker; or
Note
See section 19(1) for a list of authorised affidavit takers. Refer also to the definition of authorised affidavit taker in section 3.
(b)a person authorised to take a statutory declaration by or under any other Act; or
(c)a person authorised by or under a Commonwealth Act to take a statutory declaration under that Commonwealth Act; or
(d)any other prescribed person or person who is a member of a prescribed class of persons.
(3)The person making the statutory declaration and the statutory declaration witness must do the following in the presence (whether physically or by audio visual link) of each other—
(a)sign or initial any alteration to the statutory declaration;
(b)sign or initial each page of the statutory declaration;
(c)if the statutory declaration refers to a document, sign a certificate attached to the document identifying the document as an exhibit to the statutory declaration;
(d)sign and date the statutory declaration;
(e)legibly write, type or stamp that person's name and address on the statutory declaration.
(4)The person making the statutory declaration must make an oral declaration by saying the prescribed words aloud in the presence (whether physically or by audio visual link) of the statutory declaration witness, unless the person has a disability that prevents the person from doing so.
(5)The statutory declaration witness must write or stamp under that person's signature required by subsection (3)(c) and (d) that person's qualification as a statutory declaration witness.
(6)For the purposes of subsection (3)(e), the address of the statutory declaration witness may be a personal address or a professional address.
(7)Nothing in this Act 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.
30ARequirements if statutory declaration made or witnessed by audio visual link or in electronic form
(1)If a statutory declaration is made in electronic form or is witnessed under section 30 by audio visual link, the statutory declaration witness may use a scanned or electronic copy of the statutory declaration for the purposes of complying with the requirements of this Part.
(2)If a statutory declaration is made in electronic form or is witnessed under section 30 by audio visual link, in addition to any other requirements of this Part, the statutory declaration must include a statement—
(a)specifying the manner of that making or witnessing; and
(b)whether a scanned or electronic copy of the statutory declaration was used in accordance with subsection (1).
(3)A statement required under subsection (2) may be pre-filled on the form of statutory declaration.
30BAudio visual procedures do not limit other duties and obligations
(1)The use of audio visual procedures under this Part in relation to statutory declarations applies subject to any express contrary intention imposed by any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person who makes a statutory declaration or a statutory declaration witness in relation to statutory declarations.
(2)Nothing in this Part limits any requirement imposed by this Part by which a person must not write or do something without first being satisfied of certain matters.
31Offence to take statutory declaration if not statutory declaration witness and offence to purport to be statutory declaration witness
(1)A person who is knowingly not a statutory declaration witness must not witness a statutory declaration.
Penalty:60 penalty units or imprisonment for 6 months or both.
(2)A person who is knowingly not a statutory declaration witness must not represent that the person is a statutory declaration witness.
Penalty:10 penalty units.
32Provision of assistance to person making statutory declaration
(1)Subject to subsection (3), any person who assists a person to make a statutory declaration must on the face of the document legibly—
(a)write or stamp the name and address of the assistant; and
(b)explain the nature of the assistance provided to the person making the declaration.
Examples
Translation assistance, assistance with writing or reading.
(2)The assistant referred to in subsection (1) may be the same person who witnesses the statutory declaration if qualified under section 30(2).
(3)Subsection (1) does not apply to a person who, in a professional capacity, prepares or writes a statutory declaration for the person's client on the client's instructions, including—
(a)an Australian legal practitioner; or
(b)a licensed conveyancer; or
(c)a person assisting another person to prepare a Victim Impact Statement.
33Statutory declarations made out of Victoria
(1)In addition to a person referred to in section 30(2), the following persons 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—
(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 and Investment 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 that place.
(2)If by any Act or subordinate instrument a statutory declaration is required, authorised or permitted to be administered or made before a justice of the peace or a bail justice, it is sufficient if the statutory declaration is made before a justice of the peace or bail justice (however described) for that place outside Victoria where the statutory declaration is made.
(3)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.
(4)For the purpose of subsection (3), judicial and official notice of the signature of the justice of the peace or bail justice for a place outside Victoria means that there is a presumption that, unless the contrary is proved—
(a)the justice of the peace or bail justice signed the statutory declaration; and
(b)the justice of the peace or bail justice was an authorised statutory declaration witness at the time of taking the statutory declaration.
34Reasonable modifications may be made
The 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 the person from doing so in accordance with this Part.
Examples
A hearing impaired person may read and sign the oral declaration instead of saying it aloud. A person who is unable to speak may be able to listen to a statutory declaration being read and nod assent.
35Statutory declaration by illiterate, blind or cognitively impaired person
Without limiting section 34, if it appears to a statutory declaration witness that the person making the statutory declaration is illiterate, blind or has a cognitive impairment, 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.
36Offence to make false statutory declaration
A person must not make a statement in a statutory declaration that the person knows to be untrue.
Penalty:600 penalty units or imprisonment for 5 years or both.
Note
The penalty applicable to this offence means the offence is an indictable offence—see section 112(1) of the Sentencing Act 1991. See also section 28 of the Criminal Procedure Act 2009 regarding indictable offences that may be heard and determined summarily.
37False or misleading statement as to making of statutory declaration
A person must not make a false or misleading statement, knowing that the statement is false or misleading, as to—
(a)the circumstances in which a statutory declaration or a document purporting to be a statutory declaration was made; or
(b)whether or not a statutory declaration or a document purporting to be a statutory declaration was made.
Penalty:10 penalty units.
38Minor non-compliance does not affect validity
A statutory declaration is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the declaration.
Part 5—Certification
Division 1—Authorised certifiers
39Authorised certifiers
The following persons may certify a copy of a document—
(a)an authorised affidavit taker;
Note
See section 19(1) for a list of authorised affidavit takers. Refer also to the definition of authorised affidavit taker in section 3.
(b)a statutory declaration witness;
Note
See section 30(2) for a list of statutory declaration witnesses. Refer also to the definition of statutory declaration witness in section 3.
(c)a person authorised or required by or under any other Act in relation to a document under that Act;
(d)any other prescribed person or member of a prescribed class of persons.
Division 2—Scheme for certification of copies of original documents
40Application
(1)The certification scheme in this Division may be used by an authorised certifier to certify a copy of an original document as a true copy.
(2)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.
(3)Without limiting subsection (2), this Division does not apply to the certification of a document—
(a)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
(b)by the holder of any other official record, in relation to an extract from or a copy of that record.
41Process for certifying copies of documents
(1)Before certifying a copy of an original document, an authorised certifier must—
(a)inspect the original document to ensure that it is an original document; and
(b)inspect the copy to ensure it is identical to the original document.
(2)An authorised certifier may certify a copy of an original document by—
(a)legibly writing on or stamping the copy with the prescribed words; and
(b)signing and dating the copy; and
(c)legibly writing on or stamping the copy with the name, qualification and address (whether personal or professional) of the authorised certifier.
42Process for certifying copy of a certified copy
(1)Before certifying a copy of a certified copy of an original document, an authorised certifier must—
(a)inspect the certified copy of the original document to ensure that it appears to be authentic; and
(b)inspect the copy of the certified copy of the original document to ensure it is identical to the certified copy of the original document.
(2)An authorised certifier may certify a copy of a certified copy of an original document by—
(a)legibly writing on or stamping the copy with the prescribed words; and
(b)signing and dating the copy of the certified copy; and
(c)legibly writing on or stamping the copy of the certified copy with the name, qualification and address (whether personal or professional) of the authorised certifier.
43Multiple page documents
In the case of a multiple page document, an authorised certifier may certify the copy of the document and any attachments in accordance with the following procedure instead of using the process set out in section 41(2) or 42(2)—
(a)signing or initialling each page of the copy; and
(b)numbering each page of the copy; and
Example
Page 1 of 26.
(c)legibly writing on or stamping the copy with the prescribed words; and
(d)signing and dating the copy; and
(e)legibly writing on or stamping the copy with the name, qualification and address (whether personal or professional) of the authorised certifier.
44Documents in languages other than English
Nothing in this Part prevents an authorised certifier from certifying a document in a language other than English if the authorised certifier is of the opinion that the copy and the original document are identical.
45Minor non-compliance does not affect validity
A certified copy is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the certification.
Division 3—General certification offences
46Application
This Division applies to certification of copies of documents, whether under Division 2 or otherwise.
47Offence to present false copy of a document for certification
A person must not present a document for certification as a true copy of the original document, if the person knows it is not a copy of that original document.
Penalty:600 penalty units or imprisonment for 5 years or both.
Note
The penalty applicable to this offence means the offence is an indictable offence—see section 112(1) of the Sentencing Act 1991. See also section 28 of the Criminal Procedure Act 2009 regarding indictable offences that may be heard and determined summarily.
48Offence to certify certain copies of documents
A person must not certify a copy of a document as a true copy of an original document if the person knows that—
(a)the purported original document is not in fact an original document; or
(b)the purported true copy is not in fact a true copy.
Penalty:600 penalty units or imprisonment for 5 years or both.
Notes
1See the definition of original document in section 3.
2The penalty applicable to this offence means the offence is an indictable offence—see section 112(1) of the Sentencing Act 1991. See also section 28 of the Criminal Procedure Act 2009 regarding indictable offences that may be heard and determined summarily.
49False or misleading statement as to certification of copy of document
A person must not make a false or misleading statement, knowing that the statement is false or misleading, as to—
(a)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
(b)whether or not a certified true copy of a document or a document purporting to be a certified true copy of a document was made.
Penalty:10 penalty units.
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Part 6—General
50Perjury to make false statement by oath, affirmation or affidavit
(1)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.
Note
See section 314(2) of the Crimes Act 1958.
(2)Subsection (1) applies whether the oath, affirmation or affidavit is made under this Act, or made or required by or under any other Act, whether passed before, on or after the commencement of this section.
51Infringement offences
(1)A police officer may serve an infringement notice on a person who the police officer has reason to believe has committed an offence against section 20(1).
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence against a provision referred to in subsection (1) is 1 penalty unit.
52Regulations
(1)The Governor in Council may make regulations for or with respect to—
(a)prescribing forms or information for the purposes of this Act;
(b)prescribing fees for the purposes of this Act;
(c)prescribing persons or classes of persons as administering officers;
(d)prescribing persons or classes of persons as authorised affidavit takers;
(e)prescribing persons or classes of persons as statutory declaration witnesses;
(f)prescribing persons or classes of persons as authorised certifiers;
(g)prescribing procedures to facilitate electronic communication of documents to which this Act applies, including but not limited to the appending of electronic signatures;
(h)prescribing procedures for the use of interpreters in relation to anything done under this Act;
(i)any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
(2)The regulations may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances;
(c)confer a discretionary authority or impose a duty on a specified person or body or class of persons or bodies;
(d)provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations—
(i)whether unconditionally or on specified conditions; and
(ii)either wholly or to any extent that is specified;
(e)impose a penalty not exceeding 20 penalty units for a contravention of the regulations.
Part 7—Transitional provisions, repeals and consequential amendments
Division 1—Repeals and transitional provisions
53Administration of oaths and affirmations
Section 42Y of the Evidence (Miscellaneous Provisions) Act 1958 is repealed.
54Oaths affirmations affidavits declarations
Divisions 1, 2, 3, 4, 5, 6, 9, 10 and 11 of Part IV of the Evidence (Miscellaneous Provisions) Act 1958 are repealed.
55Attestations verifications acknowledgements notarial Acts etc.
Part V of the Evidence (Miscellaneous Provisions) Act 1958 is repealed.
56Persons making wilful false statements on oath, declaration etc. guilty of perjury
Section 141 of the Evidence (Miscellaneous Provisions) Act 1958 is repealed.
57Abolition of extra-judicial oaths
Section 151 of the Evidence (Miscellaneous Provisions) Act 1958 is repealed.
58Form of oath and affirmation and affirmations in writing
The Third Schedule to the Evidence (Miscellaneous Provisions) Act 1958 is repealed.
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60Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021
On and from the commencement of Part 11 of the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, any statutory declaration made under this Act as modified by Part 3 of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (as in force immediately before their revocation) continues to be a valid statutory declaration despite that revocation.
Schedule 1—Form of oath and affirmation
Section 8
Form of oath
I swear (or promise) by Almighty God (or the person may name a god recognised by the person's religion) that [words of the oath prescribed or allowed by law].
Form of affirmation
I solemnly and sincerely declare and affirm that [words of the affirmation prescribed or allowed by law].
* * * * *
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Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 7 June 2017
Legislative Council: 21 September 2017
The long title for the Bill for this Act was "A Bill for an Act to re-enact and modernise the law relating to oaths, affirmations, affidavits and statutory declarations, to establish a scheme for the certification of copies of documents, to repeal Divisions 1 to 11 of Part IV and Part V and repeal or amend other provisions of the Evidence (Miscellaneous Provisions) Act 1958, to make consequential amendments to the Evidence Act 2008, the Constitution Act 1975, the Interpretation of Legislation Act 1984 and other Acts and for other purposes."
The Oaths and Affirmations Act 2018 was assented to on 27 February 2018 and came into operation on 1 March 2019: section 2(2).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Oaths and Affirmations Act 2018 by Acts and subordinate instruments.
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Oaths and Affirmations Act 2018, No. 6/2018
Assent Date: 27.2.18 Commencement Date: Ss 59(4), 69 on 1.3.19: s. 2(2); s. 49H inserted on 25.4.20 by No. 11/2020 s. 39: s. 2 (as amended by No. 27/2020 s. 36) Note: S. 69 repealed Pt 7 Divs 2–4 (ss 60–69), Sch. 2 on 1.3.20; s. 59(4) repealed s. 59 on 1.3.21; s. 49H repealed Pt 5A (ss 49A–49H) on 26.4.21 Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
Building Amendment (Registration of Building Trades and Other Matters) Act 2018, No. 46/2018
Assent Date: 25.9.18 Commencement Date: S. 76 on 26.9.18: s. 2(1) Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
Local Government Act 2020, No. 9/2020
Assent Date: 24.3.20 Commencement Date: S. 390(Sch. 1 item 73) on 1.7.21: s. 2(4) Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
COVID-19 Omnibus (Emergency Measures) Act 2020, No. 11/2020
Assent Date: 24.4.20 Commencement Date: S. 39 on 25.4.20: s. 2 Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
Justice Legislation Miscellaneous Amendments Act 2020, No. 22/2020
Assent Date: 30.6.20 Commencement Date: Ss 21–23 on 1.7.20: s. 2 Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020, No. 27/2020
Assent Date: 20.10.20 Commencement Date: S. 36 on 21.10.20: s. 2 Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021
Assent Date: 23.3.21 Commencement Date: Ss 69–78 on 26.4.21: s. 2(2) Current State: This information relates only to the provision/s amending the Oaths and Affirmations Act 2018
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3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.
4 Explanatory details
No entries at date of publication.
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