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

Chapter Thirteen - Issues Identified with the present system of Witnessing Documents and Recommendations for Reform

In addition to the written submissions made to the Committee, oral evidence was received from Mr Zablud[347] and Mr Trumble[348] in relation to witnessing of documents. Mr Trumble also appeared on behalf of the Royal Victorian Association of Honorary Justices ("the Association").

13.2

In the Committee's view the major issue raised by Mr Zablud, Mr Trumble and the Association was the role of witnesses and the suitability of many of the categories of persons who are able to witness statutory declarations. Other issues related to the lack of formality in the witnessing of statutory declarations and the lack of adequate training. It was submitted to the Committee that the combination of these factors may have the effect that the significance of what is being signed and witnessed is not appreciated.

13.3 ISSUE 7: Role of a Witness

It was submitted to the Committee by Mr Zablud[349] that witnesses to documents do not appreciate the significance of their role. He identified three reasons. First, the lack of formality associated with the actual witnessing; secondly the lack of adequate instruction given to persons who are able to witness documents and thirdly, the lack of prosecutions in circumstances where persons have patently perjured themselves.

13.4

Mr Zablud indicated that in his experience in cases such as the attesting of wills and powers of attorney, the problems of documents being incorrectly witnessed were not as prevalent as with statutory declarations.[350] This was due in part to the formal proceedings for the witnessing of documents being set out in the legislation. He also made the point that most of the witnessing of these documents is done by solicitors or persons who have contact with the law.[351]

13.5 Mr Zablud in his written submission outlined what in his view was the role of a witness:-

"The function of a witness to the execution of a document is to indicate that the particular document was duly executed by the person who is named as having executed it. Although in the vast majority of cases the witness does not specifically state:-

(a) that he or she knows the person who executed the document or that the person has been satisfactorily identified;
(b) that the person is of full age and of full capacity;
(c) that the signature witnessed as the true signature and proper handwriting of the person; and
(d) that the person executed the document of his or her own free will, it is implicit in the notion of witnessing that the witness attests to the foregoing."[352]

Mr Zablud recommended that:-

".....serious consideration ought to be given to legislating a formal requirement by witnesses to documents to:-

(a) state their names, addresses and occupations;
(b) state that the person executing the document is either personally known to them or has satisfactorily identified himself or herself to them."[353]

13.6

It is the Committee's contention that the Evidence Act 1958 (Vic) does not impose the obligations identified by Mr Zablud. The obligations of a witness under the Act in relation to both affidavits and statutory declarations are:-

• After witnessing the signing of an affidavit or declaration, the person by whom it is witnessed must legibly write, type or stamp his or her name and address below his or her own signature. Penalty: 1 penalty unit.[354]
• ensure that the document is sworn/declared in their presence.[355]
• In relation to affidavits:-
• administer the oath in the manner prescribed in the Act.[356]

In relation to declarations:-

• the statutory declaration must contain an acknowledgment that it is true and correct and is made in the belief that a person making a false declaration is liable to the penalties of perjury.[357]

This last requirement is usually satisfied by using a standard form statutory declaration which can be purchased at a newsagency.

13.7

The Committee notes that the Law Institute of Victoria outlines a standard form of statutory declaration:-

"A person making a statutory declaration signs the document and repeats without any other formality -

"I solemnly and sincerely declare that this document is signed in my name and handwriting and that the contents of this declaration are true and correct in every particular."[358]

13.8

An examination of the Evidence Act 1958 (Vic) does not reveal any specific requirement for these words to be spoken. The statutory requirements of the Act set out above, are in the Committee's view sufficient as they contain an acknowledgment that a person can be liable for perjury if a false declaration is made.

13.9

What is the role of a witness? The Committee is not persuaded that the functions of a witness are as comprehensive as suggested by Mr Zablud. Witnesses to a document, such as a statutory declaration or affidavit are not required by the Evidence Act 1958 (Vic) to state that they have any personal knowledge of the identity of the person signing or the contents of the document itself. Mr Zablud, the Committee considers, is placing too onerous a burden on a witness. The Committee is of the view that such a burden is contrary to the intention of the legislation. The Committee is of the view that under the Act a witness has two functions.

13.10

These functions are, first, to ensure compliance with the statutory process. In relation to affidavits this is to administer the oath in the manner prescribed. In relation to the signing of a statutory declaration, it is to ensure that the correct procedure is carried out. In cases where there is a prosecution for perjury, the witness will in most cases be an independent third party who provides evidence of his or her signature and that the document was signed before him or her. Under the Act the onus is on the person swearing or declaring the document, exposing the person to a charge of perjury, not the witness. The witnesses' responsibilities are in the Committee's view to comply with the Act.

13.11

The second role is in the Committee's view somewhat symbolic, but nevertheless still of importance. The Committee considers that the qualifications of the category of witnesses used imparts to the person signing, that the State regards the signing of a statutory declaration as an important task and one which is not to be undertaken lightly. Moreover, many of the categories of persons who can witness these documents would themselves be subject to disciplinary proceedings if the documents were in fact falsely witnessed. The Committee believes that this of benefit to the public as it signifies that statutory declarations are perceived to be important by the State. Further it conveys the fact that by signing, a person is undertaking a legal act.

13.12

The then Chairman Mr Victor Perton MP, made the following observation during the course of the hearing:-

"Mr Zablud, the next witness, says in his submission that in his experience there is a high level of untruthfulness or a lack of care about the content of statutory declarations and the like because all you are doing, to use a colloquialism, is walking into your chemist shop to have a document signed. Maybe there is a case for saying there needs to be a little more ceremony in the act of making a statutory declaration, or indeed an affidavit." [359]

13.13

Referring to the Northern Territory, where anyone over the age of 18 years can witness a statutory declaration, Mr Trumble replied regarding the second role of a witness:-

"I do not support that because there is none of that slight ceremony and there really should be perhaps a slight inconvenience to add weight to the ceremony."[360]

13.14

The relevant interstate Acts do not impose obligations along the lines proposed by Mr Zablud on witnesses. Like Victoria, the interstate legislation sets out the qualifications of witnesses, but does not impose obligations on them as to identification of the deponent or maker of a statutory declaration.

13.15

The Evidence Act 1958 (Vic) requires affidavits to be sworn by either an oath or an affirmation. A certain form of words is used for oaths and affirmations. Other than this, there are no other formal requirements in the Act. The Committee does not endorse the enactment of any further formal requirements. It is of the view that the category of witnesses and the possibility of perjury charges for making a false declaration are sufficient to indicate the formal nature of the document.

13.16

In relation to a witness being required to adequately identify a person before witnessing a statutory declaration, the Committee is of the view that this would impose too onerous a burden on a witness. The Evidence Act 1958 (Vic)[361] provides penalties for falsely making a declaration. The Committee considers that it is not the intention of the legislation to impose a burden on witnesses; rather, the onus is on the person making a declaration to comply with the requirements of the Act.

13.17

The Committee considers that for the reasons stated there is no need to legislate to require witnesses to state that they are satisfied as to the person's identity and to the truth of the document. The Committee considers that the Victorian legislation is in line with interstate legislation and therefore does not recommend that a more onerous burden be imposed on witnesses.

RECOMMENDATION 37

The Committee recommends that the present provisions of the Evidence Act 1958 dealing with the role and responsibilities of witnesses be retained and enacted in a new Oaths Act.

The issue of the suitability of the categories of witnesses who are able to witness statutory declarations was raised by Mr Zablud[362] and the Association.[363] The category of witnesses to affidavits in Victoria was generally acknowledged to be appropriate and without the deficiencies highlighted in relation to statutory declarations.

13.19

The second reading speech indicates that the then Government in introducing the wider category of persons who could witness statutory declarations, did so in order to increase the convenience to the public. However, submissions to the Committee indicated that the lack of instruction for those persons in the professions listed in the section, may in fact cause further inconvenience.

13.20

The Association contended that:-

"Section 107A of the Evidence Act authorises people in a variety of professions to witness statutory declarations. This extension to authorised signatories was introduced to make qualified witnesses easier to find, which is a good thing. But, unfortunately, a number of these professional people in particular, pharmacists, seem to have not been given proper tuition on the procedure and the importance in ensuring the required questions are asked before signing of the documents. This has lead to the documents, in many cases, being invalid and having to be re-declared".[364]

13.21

Mr Zablud's written submission was along similar lines. He made the following comment:-

"In my experience, school principals, veterinarians, doctors, accountants and others of that ilk who have been given the right to take statutory declarations (presumably) by virtue of their educational qualifications or standing within the community, commonly make errors in taking declarations. Presumably this is because they do not take many declarations and, in any case, have not been adequately instructed how to do so. Often they neither know of nor care about the importance of the task. "[365]

He further recommended that:-

"the law relating to the taking of statutory declarations should be revisited, with a view to limiting the number of persons entitled to take statutory declarations to those persons who have a connection with the practice of the law on a day to day basis."[366]

13.22

The categories in Western Australia, the Commonwealth, the Australian Capital Territory are similar to Victoria. In the Committee's view this indicates that other jurisdictions have also enacted legislation which is designed to promote the convenience to the public. For the reasons outlined, the Committee does not recommend that Victoria discard the current system in favour of the Northern Territory approach. In the Committee's view there is a need for a person who has attained certain qualifications to witness documents. This is to bestow a degree of formality on the signing and to ensure that the process is followed. The Committee submits that the present list of persons able to witness statutory declarations serves the public well. It does not recommend that it be restricted.

13.23

The Committee notes the issues raised in relation to the categories of persons able to witness statutory declaration but is not persuaded that there are compelling reasons to limit the categories. The Committee is guided by the intention of the legislation,[367] ie; to increase the convenience to the public. In the Committee's view, the widening of the categories, particularly in relation to statutory declarations, has been a positive step. The use of similar categories by the Commonwealth, the Australian Capital Territory and Western Australia supports this view. The Committee is of the view that the issues raised by Mr Zablud and the Association [368] can be overcome by other methods.

13.24

Moreover, the philosophy underpinning the introduction of competition principles, alluded to in the earlier part of this Report in relation to notaries, is considered by applicable by the Committee. The Committee is of the view that the paramount factor is convenience to the public.

13.25

The Committee considers that the concept of competition usually associated with monetary gain is not relevant. To adopt a narrow position as suggested by Mr Zablud and in use in Queensland, Tasmania and South Australia will not benefit the public. It would put Victoria out of step with the philosophy of competition being implemented Australia wide.

RECOMMENDATION 38

The Committee recommends that subject to recommendations 44 and 45, section 107A of the Evidence Act 1958 be enacted in its present form in a new Oaths Act.

The evidence presented to the Committee was to the effect that the requirements of the legislation are not understood by witnesses. Both Mr Zablud and the Association referred to the lack of skill amongst some of the categories of witnesses. In response to the problems encountered, recommendations were made to the Committee.

13.27

Before considering the recommendations presented to the Committee, there are two issues to consider. First, what is the consequence of failure to properly administer the oath or affirmation and second, should witnesses be required to undertake training? The validity of the oath made in the case of an affidavit is not invalidated by a failure on the part of the witness to the affidavit to administer it or sign incorrectly. The proviso to section 100 of the Evidence Act 1958 (Vic) after detailing the manner of administering the oath states:-

"Provided that no oath shall be deemed illegal or invalid by reason of any breach of the provisions of this sub-section".[369]

13.28

There is no corresponding provision for statutory declarations. In the Committee's view, a similar provision be enacted in respect of statutory declarations.

The Committee considers that mandatory training would distort the intention of the legislation. Many of the problems encountered by qualified witnesses under the Act are due to the fact that the right to witness documents is imposed by statute, rather than the result of an individual positive act. This was acknowledged by the Chairman who said:-

"... Many people on the list have no idea what to do. The problem is that they obtain office as a result of a schedule in the act and not voluntary acts on their part."[370]

13.30

It was submitted to the Committee that the categories should be limited or a training course introduced. Mr Zablud recommended that:-

"the law relating to the taking of statutory declarations should be revisited, with a view to limiting the number of persons entitled to take Statutory Declarations to those persons who have a connection with the practice of the law on a day to day basis."[371]

13.31

The Association in its submission stated:-

"We would recommend that consideration be given to making it a requirement that a Document Signing Course be undertaken to ensure the correct procedure is followed. This being done, then authorisation could be given to those persons to witness statutory declarations." [372]

13.32

However, the Committee considers that there are two reasons for not recommending a mandatory course. The first reason is that it would be difficult to enforce the requirement to undertake the course. People must be given a choice whether or not to undertake the course and offer the service. The second reason is expressed by Mr Trumble who said, in response to the then Chairman Mr Victor Perton MP:-

"It is a conundrum. I acknowledge that if the act were changed and, say, a pharmacist's authorisation were subject to his doing a course, all of a sudden 1 per cent of pharmacists would be authorised and the 99 per cent who could not be bothered would not be. The original purpose as I see it - namely, to increase the number of authorised persons - would be shot to pieces." [373]

13.33

The Committee notes that the Justice of the Peace and Commissioner of Declarations Act 1991 (Qld) requires applicants to have completed a course of training before appointment.[374] The difference is significant. In Queensland, an applicant seeks appointment of his or her own volition. In Victoria, the obligation is imposed by statute.

13.34

The Committee does not agree with Mr Zablud's suggestion that the witnessing of statutory declarations be restricted to those persons who have daily contact with the law. The Committee considers that this would undermine not only the intention of the legislation but also the convenience to the public. In the Committee's view, it is more appropriate to support an education program for those witnesses who are not familiar with the requirements.

13.35

The Committee's view is the requirements of the legislation should be listed and easily available to those persons whose obligations in respect of statutory declaration are imposed by statute. However, in the Committee's view this information should be made available through an educative process rather than a mandatory course of training. It appears to the Committee that requiring potential witnesses to undergo mandatory training undermines the original rationale for the expansion of the categories. The reality is that many people may not undertake the course. This then reduces the number of people available to witness documents.

RECOMMENDATION 39

The Committee recommends that provision be made in a new Oaths Act to protect statutory declarations in a similar manner to the provisions of section 100 of the Evidence Act dealing with oaths and affirmations

RECOMMENDATION 40

The Committee recommends that the Department of Justice prepare guidance notes for the witnessing of statutory declarations and provide copies to relevant professional associations and urge those associations to bring such notes to the attention of their members.

This was an issue raised by Mr Zablud in his submission to the Committee. He indicated that he was:-

"reasonably satisfied that the community as a whole did not take Statutory Declarations too seriously. This is probably due to two factors:

(a) the fact that forms can be purchased at the local newsagent;
(b) the lack of prosecutions in circumstances where persons have patently perjured themselves." [375]

Mr Zablud recommended that:-

"If the Government is serious about the nature and effect of statutory declarations, positive steps should be taken, where appropriate, to prosecute people who deliberately make false declarations." [376]

13.37

The Committee has already referred to the penalties for falsely making a declaration. The Committee is concerned at the breadth of anecdotal evidence regarding the completion of perjured statutory declarations. The Committee recognises that the ultimate decision as to whether to prosecute a person for perjury rests with either the police or the Director of Public Prosecutions. However, the Committee considers that there are some measures that it can recommend which may have the affect of reducing the incidence of false declarations. The Committee recommends the guidance notes referred to in recommendation 40 include specific instructions to witnesses of statutory declarations to refer matters to the police where there is evidence of perjury.

RECOMMENDATION 41

The Committee recommends the guidance notes referred to in recommendation 40 include specific instructions to witnesses of statutory declarations to refer matters to the police where there is evidence of perjury.

There were two issues raised in relation to fees in submissions to the Committee. Mr Trumble and the Association highlighted the discrepancy between the prohibition for taking a fee for swearing an affidavit,[377] and the lack of any such prohibition in relation to statutory declarations. It was suggested to the Committee that there be a uniform approach. Traditionally fees have not been charged for taking statutory declarations. This is why it is not specifically prohibited. However, the issue of imposing fees for both types of documents was raised by the Chairman[378] who indicated that if fees were to be re-introduced they could be charged for both types of documents.

Mr Zablud took a different view in relation to fees.[379] His submission was that fees indicate the seriousness of the action being undertaken and compensate the witness for the time and inconvenience incurred. He drew a distinction between the categories listed in the Evidence Act 1958 (Vic) and those categories such as public servants, court officials or justices of the peace. The latter voluntarily undertake this type of community service or can witness documents in the course of their employment. The former are those whose obligation to witness declarations is imposed by legislation. He suggested to the Committee that those people authorised under the legislation to witness statutory declarations, such as pharmacists, should be able to charge a fee for doing so. His argument was that these people are basically involved in other businesses. To take time out from other duties to sign and witness statutory declarations is a significant imposition on their time. Accordingly, they should be able to charge for it.

13.40

The other benefit identified by Mr Zablud which would flow from imposing a fee is that it would be a positive indication of the serious attitude taken by the Parliament in relation to the making of a statutory declaration. In his oral evidence, Mr Zablud stated:-

"If my experience is any indication, to take a declaration or an affidavit for somebody is a fairly serious interruption to daily practice. Commonly enough, people do not make appointments to come in for the work they just bowl in .... I would have thought for pharmacists, newsagents and the like it could be a massive dislocation from day to day. I would have thought they would be entitled to a fee for their efforts. Also, in paying the fee members of the public would be more likely to have at least a moderate degree of respect for what they are doing."[380]

13.41

In the course of the Public Hearing, Dr Coghill and Mr Zablud[381] discussed the concept of public service and whether members of the public who witness statutory declarations by virtue of their occupation or profession, were entitled to charge a fee. Mr Zablud's view was that they should be able to charge a fee; first, because of the interruption to their business and second as a means of instilling in those persons making declarations, a greater respect for the action being undertaken.[382]

13.42

Dr Coghill made the comment:-

"It comes down in our case to the judgment Parliament might make as to what is a reasonable expectation concerning the public service to be provided by certain categories of people in the community and whether all their services should have an economic basis."[283]

13.43

Reference to the second reading speech for this amendment indicates that the Government of the day removed the right to charge a fee as a cost cutting measure and to increase convenience to the public. The Committee is mindful of the submission made by Mr Zablud, that if people are required to pay they may take the matter more seriously. However, the Committee does not accept the argument in its entirety. The previous fees were not very high. In the Committee's view the reintroduction of a token fee will not achieve the end Mr Zablud desires. The Committee suggests that the more appropriate course of action is to educate witnesses and persons signing documents as to the importance of the act.

13.44

The Committee does support the suggestion by the Association that there be uniformity in the legislation as to the prohibition on fees. This would ensure that there is no uncertainty as to the situation.

RECOMMENDATION 42

The Committee recommends that a new Oaths Act include a provision to prohibit the charging of a fee for statutory declarations as is presently provided for in relation to affidavits under section 123C(5) of the Evidence Act 1958.

Mr V. Trim addressed this issue in a written submission to the Committee.[384] Mr Trim is the post manager/licensee at the Glenhuntly Post Office. In this role he is able to witness statutory declarations for the purposes of the Commonwealth.[385] He is not able to witness declarations for use under Victorian law. Mr Trim has indicated that this causes confusion for many people as the distinction is not readily understood. Prior to the 1989 amendments, persons in Mr Trim's position were able to witness statutory declarations under Victorian law.

13.46

The relevant legislation is the Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 1993 (Cth). Mr Trim is authorised under Part 2 of the Schedule which provides as follows:-

"... Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public"[386]

13.47

If Mr Trim worked in the ACT, Western Australia, South Australia, Queensland or Tasmania he would be able to witness statutory declarations for use in those places. (See Appendix E)

13.48

A submission was also received from the Australian Federation of Civil Celebrants Inc.[387] dated 10 July 1996 which raised the same issue. Pursuant to Part 2 of the Schedule to the Statutory Declarations Regulations 1993 civil celebrants are authorised to witness statutory declarations. The Federation submitted that it is discriminatory not to allow civil celebrants to witness statutory declarations in Victoria when ministers of religion are able to do so. Civil celebrants are appointed under the Marriage Act 1961 (Cth).

13.49

The Federation also raised the issue of convenience to the public. The Federation states that statutory declarations are often required to be completed when preparing marriage applications. The Committee's view is that it would increase the convenience to the public to allow civil celebrants to witness statutory declarations. Therefore the Committee recommends that they be included in the list of persons authorised to witness statutory declarations.

13.50

The full list of persons before whom a statutory declaration may be made is reproduced in the appendices. However it is interesting to note that the Commonwealth regulations, like the Victorian provisions, include persons whose occupations would not normally have daily contact with the law, for example, engineers, teachers and credit union officers with five or more years continuous service. It also allows any person authorised under a State law to take declarations to for Commonwealth purposes.

13.51

The Committee considers that a similar provision should be enacted to allow persons authorised under Commonwealth law to witness statutory declarations for Victorian purposes.

RECOMMENDATION 43

The Committee recommends that a new Oaths Act include a provision which provides that any persons authorised under Commonwealth law to witness statutory declarations, be authorised to witness statutory declarations under Victorian law for Victorian purposes.

Submissions were received from the Real Estate Institute of Victoria and Brand Name Consultants concerning additions to the list of persons who are able to witness statutory declarations.

Real Estate Institute of Victoria.

The Real Estate Institute of Victoria sought the inclusion of real estate agents as witnesses to statutory declarations on the basis that:-

"in many instances, Estate Agents are requested to witness documentation particularly given their role as facilitators of property transactions. This would provide a valuable and convenient service to the public of Victoria."[388]

The Real Estate Institute of Victoria further submitted:-

"The inclusion of professionals such as the local dentist, pharmacist and bank manager lends weight to the argument for the inclusion of real estate agents, who have the professional skills and community profile to exercise the duties of witnessing statutory declarations faithfully. In seeking legislative recognition of estate agents as statutory declaration witnesses, the Institute is conscious of the fact that the witnessing of signatures is not merely a routine function but requires application of carefully formulated procedures and higher standards of care." [389]

13.54

The Committee adopts the submission of the Real Estate Institute of Victoria concerning real estate agents. The convenience to the public of allowing real estate agents to witness statutory declarations is in line with the thrust of the original amendments. Also, real estate agents are able to witness such documents in Western Australia.

The possibility of allowing electorate officers to witness statutory declarations was raised during the Committee's deliberations. Electorate officers are employed by the House Committee of the Parliament. Their daily duties are directed by the relevant member of Parliament. It was submitted that it would be of benefit to the public, to allow such officers whilst they are so employed to witness statutory declarations. Members of the public often attend an electorate office to have such documents witnessed only to find that the member of Parliament is absent. This creates significant inconvenience to those members of the public who are then required to seek an alternate witness.

13.56

The Committee considers that electorate officers are in a similar category to those in other occupations able to witness statutory declarations, namely; it is the holding of the position or occupation which gives the person the authority to witness such documents.

13.57 Patent Attorneys

Patent Attorneys are able to witness statutory declarations and affidavits under the existing Act if they are "a person registered as a patent attorney under Part XV of the Patents Act 1952 (Cth).[390] Brand Name Consultants have alerted the Committee to the repeal of the 1952 Act by the Patents Act 1990. The Patents Act 1990 has not changed the requirements for registration as a patent attorney. The suitability of patent attorneys to be able to witness documents therefore does not need to be revisited. The Patents Act 1990 provides in section 240 that any person registered under the 1952 Act is to be treated as if that person were registered as a patent attorney under the 1990 Act. However, the Committee's view is that the present provisions of the Evidence Act 1958 (Vic) should be amended to reflect the new legislation.

13.58 National Tax and Accountants' Association Ltd.

The Committee also received a submission from the National Tax and Accountants' Association Ltd. seeking inclusion and authorisation for its members under the Evidence Act 1958 (Vic) to witness statutory declarations. The Association stated that:-

"The substantial majority of the members are aligned with other Australian accounting bodies and are active members of the Australian Society of CPA's, the Institute of Chartered Accountants in Australia and the National Institute of Accountants."[391]

Section 107A(v) of the Evidence Act 1958 (Vic) provides that:-

"a member of the Institute of Chartered Accountants in Australia or the Australian Society of Accountants or the National Institute of Accountants may witness statutory declarations".[392]

13.59

The Committee considers that there is an overlap in the coverage of the organisations and therefore many of the members of the Association would possibly already be qualified to witness statutory declarations. The Committee considers that it is not necessary in these circumstances to extend the coverage to members of this organisation.

RECOMMENDATION 44

The Committee recommends that a new Oaths Act include provisions so that:-

1) estate agents licensed by the Estate Agents Licensing Authority are authorised to witness statutory declarations;
(2) electorate officers employed by the House Committee of the Parliament of Victoria are authorised to witness statutory declarations whilst so employed;
(3) the reference to the "Patents Act 1952" be amended to the "Patents Act 1990".

13.60 ISSUE 15: Other Matters

Mr Trumble[393] and the Association suggested changes to sections 109 and 123C(3) of the Evidence Act 1958.[394] These sections require persons witnessing a statutory declaration or an affidavit to write legibly, type or stamp their name and address below their signature. It was submitted to the Committee that these sections be amended so that all bail justices and Justices of the Peace are able to use their registration number instead. These numbers are issued and recorded with the Department of Justice.

13.61

The Committee recommends this amendment on the basis that it will not hinder identification of witnesses should such identification be necessary. The Committee has been informed that when witnessing certain types of documents, such as declarations of justification which need to be signed by a surety in a bail matter, justices may not want their residential address known. As the legislation presently stands, if a justice does not have a business address, the residential address must be inserted. The Committee is of the view that the privacy of justices should be protected. Moreover, the Committee does not believe that such an amendment would prejudice other persons able to witness such documents. Most of these persons due to the nature of their occupation would only be available to the public during business hours and thus their privacy is protected.

RECOMMENDATION 45

The Committee recommends that a new Oaths Act provide for Justices of the Peace and Bail Justices who have been issued with a registration number from the Department of Justice to be able to insert that number instead of their address when witnessing affidavits and statutory declarations.

The Committee has undertaken this Reference with enthusiasm and has appreciated the opportunity of being involved in diverse areas of law reform. The Reference has been challenging and interesting. The Committee is of the view that a coherent Evidence Act will be of assistance both to lawyers and litigants. The Committee also believes that the recommendations made in relation to the appointment of notaries are long overdue. The Committee has appreciated the opportunity to review and suggest improvements to an area of the law that affects the general community in their daily lives.

13.64

The present Committee extends its thanks to the members of the previous Committee for their work. It also thanks the people who took the time and effort to make written and oral submissions to the Committee. Without these people the Committee would not be able to adequately reflect the views of the community and present positive and practical recommendations.

Last update 20/8/99 ©Parliament of Victoria