s 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.

s 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.

s 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.

s 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.

s 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.

s 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.

s 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.

s 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.

S. 9 amended by No. 11/2021 s. 69 (ILA s. 39B(1)).

s 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.

S. 9(2) inserted by No. 11/2021 s. 69.

(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.

s 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.

s 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.

s 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.

Oaths and Affirmations Act 2018

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