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

Chapter Twelve - The Statutory Framework for Interstate and
Commonwealth Legislation

12.1

In the Committee's view, an examination of interstate and Commonwealth legislation is instructive. All the States and Territories have legislation which governs who may witness affidavits and statutory declarations. The categories of persons in both Victoria and the other States and Territories are set out in a spread sheet format for affidavits at Appendix D and for statutory declarations at Appendix E of this Report.

12.2 Categories of Persons able to witness affidavits and statutory declarations

All the States, Territories and the Commonwealth distinguish between affidavits and statutory declarations in relation to who may witness them. The approach adopted in Victoria is that affidavits should be witnessed by a more experienced and restricted group because they are used in Court related proceedings. This is mirrored in the legislation of the other States, Territories and the Commonwealth.

12.3.

Affidavits can be witnessed by a Justice of the Peace in all the States and Territories of Australia.[317] Victoria, the Commonwealth, the A.C.T. and Queensland specifically provide for a notary public to witness an affidavit.[318] In the other States and Territories there is legislation relating to notaries, the saving of powers for notaries from common law arguably allows them to witness such documents.[319] Victoria, NSW, Queensland and the Northern Territory allow legal practitioners to witness affidavits.[320] The full list is located at Appendix D.

The categories listed here are only a sample but in the view of the Committee, are indicative of the importance accorded to affidavits and the reliance placed on them by Courts and other judicial bodies.

12.4 Commissioners for Affidavits/ Commissioners for Oaths/ Commissioners for Declarations.

Prior to the amendments to the Evidence Act 1958 (Vic) introduced in 1989, Victoria had a system of Commissioners for Affidavits who were able to charge for affidavits sworn before them. As indicated in the second reading speech, this office was abolished along with the register of commissioners.

12.5

Legislation in Tasmania[321], South Australia[322], New South Wales[323] Queensland[324] and the Northern Territory[325] all retain a Court appointed office under the various names of Commissioner for Affidavits, Commissioner for Oaths or Commissioner for taking Declarations. Save for NSW, the other jurisdictions automatically appoint certain persons Commissioners by virtue of the office they hold. It appears to the Committee that there is no uniformity between the States as to the powers of the various Court appointed Commissioners. An examination of the legislation reveals that in Tasmania, only Commissioners witness declarations.[326] In the Northern Territory[327] any person over 18 can witness a statutory declaration and therefore there is no requirement that a person be a Court appointed Commissioner. South Australian[328] legislation provides for Commissioners of the Supreme Court to witness affidavits for use in the Supreme Court. NSW legislation[329] allows Court appointed Commissioners to witness both types of documents. Queensland legislation provides that a Commissioner may witness an affidavit or any other instrument or document that may be witnessed or attested under any Act or law.[330]

12.6 Tasmania

In Tasmania, under section 131B of the Evidence Act 1910 a person who holds an office prescribed in s 131B(2) is a Commissioner for Declarations without requiring any further appointment. The prescribed offices are:-

• town or council clerk;
• electorate registrar within the meaning of the Electoral Act 1907;
• postmaster;
• officer of police appointed under section 10 of the Police Regulation Act 1898; sergeant of police or officer in charge of a police station;
• bursar of a state school;
• member of either House of Parliament;
• secretary of a trade union registered under the Trade Unions Act 1889 or of an organisation registered under the Conciliation and Arbitration Act 1904 of the Commonwealth; or
• such classes of officers appointed under the Public Service Act 1973 as may be prescribed.

12.7 South Australia

In South Australia, the Governor may proclaim bank managers, postmasters and members of the police force to take declarations and attest the execution of instruments under Part V of the Oaths Act 1936-1969. Affidavits for use in any Court may be sworn before any of those proclaimed.[331] Section 28(1) of the Oaths Act appoints:-

• all Judges and Masters of the Supreme Court;
• all District Court Justices;
• all special Magistrates;
• all persons on the roll of legal practitioners of the Supreme Court (except those under suspension); and
• any other person appointed by the Governor

to be Commissioners for taking affidavits in the Supreme Court.

12.8 Northern Territory

In the Northern Territory under s. 17 of the Oaths Act the following persons are by virtue of holding that office a Commissioner for Oaths. The offices are:-

• a member of the Legislative Assembly;
• a member of either House of the Commonwealth Parliament elected to represent the Territory or a constituency in the Territory;
• a legal practitioner who holds a current practising certificate; or
• a member of the Police Force who has attained the age of 18 years.

12.9 New South Wales

In NSW, Court Commissioners are appointed under s.27 of the Oaths Act 1900. The Chief Justice of the Supreme Court is empowered under this section to authorise as many people as is thought fit to take affidavits concerning any matter within the jurisdiction of any Court. However the Committee understands that these types of Court appointments are no longer made.

12.10 Queensland

In Queensland the Justices of the Peace and Commissioners for Declarations Act 1991 provides that commissioners may be appointed by the Governor in Council on a needs basis. Aside from such appointment, any clerk over the age of 18 years employed as an officer in the public service in an office of the Supreme Court, a District Court or a Magistrates Court is a commissioner for declarations for so long as they are employed.

This Act is quite comprehensive in dealing with appointment, maintaining a register of justices and commissioners, disqualification and resignation from office. Under the Act a person is not qualified to be a justice or a commissioner for declarations unless -

• the Governor in Council, upon the recommendation of the Minister, considers the person to be fit and proper; and
• the person is of or above the age of 18 years; and
• if the Minister has approved a training course that the person is required to complete before being so appointed - unless the person has completed the course.[332]

12.11 Person who may witness statutory declarations

Save for the Commonwealth,[333] the Australian Capital Territory and Western Australia,[334] the categories for witnessing statutory declarations in the other States are not as wide as they are in Victoria. The Australian Capital Territory draws on the Commonwealth Statutory Declarations Regulations 1993 for its provisions. The Western Australian categories are listed in the Schedule to the Declarations and Attestations Act 1913. All but two of the categories in the schedule were inserted in 1987, the remaining two being inserted in 1994.[335] The categories for each State are listed in Appendix E. The Committee does not believe it is necessary to list the categories State by State at this point as the spreadsheet at Appendix E illustrates each category and in what State/Territory it is to be found.

12.12

The Committee in examining the respective categories believes that they can be divided into three streams. Victoria, the Commonwealth, the ACT and Western Australia have all adopted a wider array of category of persons able to witness statutory declarations. The Victorian categories were amended in 1989 on the basis that it would increase the convenience to the public. The Western Australian legislation, the ACT and the Commonwealth regulations, in the Committees opinion reflect, the same reasoning.

12.13

The Northern Territory is in a unique position in Australia in that it does not have any categories of persons who are able to witness statutory declarations. Under section 23C of the Oaths Act a statutory declaration may:-

"s. 23C(1)( b) be signed by the person making it in the presence of a person who has attained the age of 18 years"[336]

Section 23D of the Oaths Act also provides for an unattested declaration to be made. This section provides:-

"23D(1) A person may make an unattested declaration in relation to a matter for which a law in force in the Territory or an agreement, custom or practice authorises or permits an unattested declaration to be made;

(2) An unattested declaration may be made in accordance with the form in Schedule 10 and shall contain an acknowledgment that it is true in every particular and a statement to the effect that a person making a false declaration is guilty of an offence".[337]

In the Committee's view the requirements in the Northern Territory are clearly the most liberal.

12.14

The third stream are the categories still in use in NSW,[338] South Australia,[339] Tasmania,[340] and Queensland.[341] The categories in these States have not been expanded in the same manner as the other States and Territories. In these States, the categories are limited to the like of Justices of the Peace, notaries and legal practitioners. The Committee's view is that a return to the limited categories of persons able to witness statutory declarations or limiting it to those persons who have daily contact with the law would not be in the best interests of the public. The Committee is of the view that the community is well served by the present categories in terms of efficiency and availability. There have not been any compelling arguments for change presented to the Committee.

12.15 Fees for taking affidavits

Prior to the 1989 amendments, fees were able to be collected by the person witnessing the affidavit. The amount was only a nominal amount. From the Committee's enquiries, the States where the legislation still permits charges to be levied are NSW, Queensland,[342] Western Australia[343] and South Australia.[344] The Oaths Act 1900 (NSW) provides for the appointment of Commissioners of Affidavits. Under this legislation only Court appointees can impose a charge. The same fee is charged for the witnessing of a declaration as is imposed for the witnessing of a affidavit. However, as the Committee has been informed that these types of appointments are no longer made, the fee is of little use.

Section 15 of the Oaths Act 1867(Qld) provides:-

"15. Whenever any declaration shall be made and subscribed by any person or persons under or in pursuance of the provisions of this Act or any of them all and every such fees or fee as would have been due and payable on the taking or making any legal oath solemn affirmation or affidavit shall be in like manner due and payable upon making and subscribing such declaration".[345]

12.16

The relevant Queensland legislation, s 4.03 of the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) prohibits a justice of the peace or commissioners for declarations from seeking, receiving, directly or indirectly any reward in connection with the performance of the functions of the office Both Western Australia and South Australia impose fees for taking affidavits. The scale of fees is set by the relevant Supreme Court.[346] In both cases the amounts to be charged are under $5.00.

12.17

The Committee believes that the administration cost and inconvenience involved for those taking a fee would be greater than the fee recouped. If such a fee was re-introduced the Committee would recommend both types of persons in the categories should be able to charge it. This would be considered appropriate on the basis that statutory declarations could be witnessed by persons who are generally available to the public at their business address. There was considerable argument presented to the Committee regarding the inconvenience caused to some people who witness statutory declarations at their business address. This is discussed later at 13.39.

---

Last update 20/8/99 ©Parliament of Victoria