Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter Eleven - The Statutory Framework in Victoria

11.1

The Committee's deliberations focused on the witnessing of affidavits and statutory declarations. The class of persons able to witness these documents was expanded by amendments to the Evidence Act 1958 (Vic) pursuant to section 144 of the Magistrates' Court Act 1989 (Vic). In his second reading speech the then Attorney General, the Honourable A. McCutcheon MP said:-

"While clause 144 of the Magistrates' Court Bill abolishes the office of commissioner for taking affidavits, it makes provision to preserve and widen the categories of persons who will be authorised to witness statutory declarations and attest affidavits. Honourable members will note that the list of persons to be authorised to attest affidavits is more restricted than that to witness statutory declarations. This is because affidavits most commonly are used in court-related proceedings. The government believes that these documents should be dealt with by a more experienced and restricted group. Statutory declarations on the other hand are used for numerous purposes. The expanded list of persons authorised to witness them will ensure that members of the community will have ready access to an authorised person. The abolition of the office of the commissioner for taking affidavits removes the need to maintain a register of commissioners and renewal of their registration, which will achieve an estimated cost saving of $60,000 per annum."[316]

11.2

The relevant provisions of the Evidence Act 1958 are contained in Part IV Oaths, Affirmations, Affidavits Declarations of the Evidence Act 1958 set out below:-

PART IV

"107A. List of persons who may witness statutory declarations

(1) Any of the following persons may witness the signing of a statutory declaration:

(a) A justice of the peace or a bail justice;
(b) A notary public;
(c) A barrister and solicitor of the Supreme Court;
(d) A clerk to a barrister and solicitor of the Supreme Court;
(e) The prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar of the Magistrates' Court or a registrar or deputy registrar of the Magistrates' Court;
(f) The registrar of probates or an assistant registrar of probates;
(g) The associate to a judge of the Supreme Court or of the County Court;
(h) The secretary of a master of the Supreme Court or the County Court;
(i) A person registered as a patent attorney under Part XV of the Patents Act 1952 of the Commonwealth;
(j) A member of the police force;
(k) The sheriff or a deputy sheriff;
(l) A member or former member of either House of the Parliament of Victoria;
(m) A member of former member of either House of the Parliament of the Commonwealth;
(n) A councillor of a municipality;
(o) A senior officer of a Council as defined in the Local Government Act 1989;
(p) A registered medical practitioner within the meaning of the Medical Practice Act 1994;
(q) A dentist;
(r) A veterinary surgeon;
(s) A pharmacist;
(t) A principal in the teaching service;
(u) The manager of a bank;
(v) A member of the Institute of Chartered Accountants in Australia or the Australian Society of Accountants or the National Institute of Accountants;
(w) The secretary of a building society;
(x) A minister of religion authorised to celebrate marriages;
(y) A person who holds an office in the public service or in a statutory authority that is prescribed as an office to which this section applies;
(z) A fellow of the Institute of Legal Executives (Victoria).

(2) Despite anything to the contrary in any Act, a person referred to in paragraph (c) or (d) of sub-section (1) is not prevented from witnessing the signing of a statutory declaration only because he or she is -

(a) the barrister and solicitor or barrister or solicitor for any of the parties to the proceeding or matter in respect of which the declaration is made; or
(b) a clerk to such a person.

(3) If the signing of a statutory declaration purports to have been witnessed by a person referred to in sub-section (1), all persons to whom that declaration comes must take official notice of that declaration and of the qualifications of the person referred to in that sub-section to witness that signing.

123C. Affidavits in Victoria how sworn and taken

(1) Affidavits for use in any court for any purpose or in any way whatsoever authorised by law whether by or under any Act of Parliament or by custom or otherwise may be sworn and taken within Victoria before -

(a) any judge or the associate to any judge;
(b) a master of the Supreme Court or of the County Court or the secretary of such a master;
(c) a justice of the peace or a bail justice;
(d) the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar of the Magistrates' Court or a registrar or deputy registrar of the Magistrates' Court;
(da) the registrar of probates or an assistant registrar of probates;
(e) a member or former member of either House of the Parliament of Victoria;
(ea) a member or former member of either House of the Parliament of the Commonwealth;
(f) a notary public;
(g) any solicitor who holds a current practising certificate under the Legal Profession Practice Act 1958;
(ga) a member of the police force of or above the rank of sergeant or for the time being in charge of a police station;
(gb) a person who holds an office in the public service that is prescribed as an office to which this section applies;
(gc) a senior officer of a Council as defined in the Local Government Act 1989;
(gd) a person registered as a patent attorney under Part XV of the Patents Act 1952 of the Commonwealth;
(ge) a fellow of the Institute of Legal Executives (Victoria);
(h) any officer or person empowered authorised or permitted by or under any Act of Parliament to take affidavits in relation to the matter in question or in the particular part of Victoria in which the affidavit is sworn and taken.

(2) All courts and persons acting judicially shall take judicial and official notice of the seal or signature of any of the persons referred to in sub-section (1) attached or appended to any affidavit within the meaning of that sub-section.

(3) The person before whom an affidavit is sworn or taken must legibly write, type or stamp his or her name and address below his or her name and address below his or her own signature where it appears on the affidavit.
Penalty applying to this sub-section: 1 penalty unit.

(4) Notwithstanding anything to the contrary in any Act, a solicitor shall not be debarred from taking and receiving any affidavit referred to in sub-section (1) by reason only that the solicitor is the solicitor for any of the parties to the proceedings matter or instrument in respect of which the affidavit is sworn and taken.

(5) No fees shall be demanded or taken for taking and receiving any affidavit under this section by any person who is empowered to take and receive such an affidavit by virtue only of this section.
Penalty: 1 penalty unit."

11.3

The Committee did not receive any substantive submissions which touched on the manner of administration of oaths or on the quality of witnesses to affidavits. The main focus of the submissions was the categories of persons able to witness statutory declarations and the associated problems.

Last update 19/8/99 ©Parliament of Victoria