Today’s question is about affidavits, statutory declarations and witnessing documents. Some background:
Many people think that the role of a Justice of the Peace (JP) or anyone else signing a statutory declaration or affidavit is to witness the signature of the person making the declaration. That is not correct.
An affidavit is a document generally intended to be admitted into court. The person signing the document (‘the deponent’) sets out the evidence that they could give in court. If you appear in court you have to take an oath or make an affirmation to tell the truth. An affidavit must also be verified by oath or affirmation, that is the deponent must make a promise that the contents of the affidavit are true and correct. The role of the person who ‘witnesses’ the affidavit is to administer that oath. If the oath is administered and the person has made a false statement then they have committed an offence; if it turns out there was no oath or affirmation, then no offence is committed.
A statutory declaration is a similar document but generally not intended for use in court. Government departments and others may require a statutory declaration in order to ensure that the deponent understands the seriousness of the matter. The person authorised to witness the document is required to administer the declaration required by the Act, not merely witness the signature. If the declaration is not properly made, there is no offence even if the content of the Statutory Declaration is wrong or false.
The importance of making these declarations properly was addressed in DPP v Marijancevic, Preece and Preece  VSCA 355 where failure to take the oath when completing affidavits in support of an application for a search warrant meant that the warrant was not properly issued and the evidence against the accused was excluded from their trial. The trial judge said:
To take an oath binds the conscience. Our whole court system relies on oath taking, whether in the witness box or by affidavit. To admit the evidence here, in the face of a systemic practice of avoiding the taking of an oath when making affidavits, would strike at the very heart of the system of taking evidence.
Today there are statutory schemes governing oaths and the making of affidavits and statutory declarations. These schemes exist in each state and territory and for the Commonwealth. If a person is giving evidence in a Commonwealth court or filing a statutory declaration to support an application to a Commonwealth government department they will need to comply with the Commonwealth’s legislation. If the matter is state based then they comply with state legislation, though in most cases a government would accept a document completed under another jurisdiction’s legislation as the person has still taken an oath and can be prosecuted for making false or misleading statements.
That, finally, brings me to today’s question:
Can an emergency services employee (noting that in my understanding a volunteer counts as a permanent employee in the eyes of the law) witness a statutory declaration as per the Statutory Declarations Regulations 2018 schedule 2, part 2 – other persons, item 31. A quick google search points me to this Wikipedia page – https://en.wikipedia.org/wiki/List_of_Victorian_government_agencies – on Victorian government agencies. Under the above schedule and item 31 would a member of the State Emergency Service as a volunteer with 5 years continuous service be able to function as a ‘permanent employee of a state authority’ as suggested in the above schedule?
Would this also apply to Paramedics (registered)?
Certification of documents is outlined in the Oath’s and Affirmations Act 2018 however it is quite vague referring in Part 5 – Certification to Authorised Certifiers however lists of such persons are not included in the document. instead, reference is made to affidavit takers, statutory declaration witnesses, other persons, and prescribed persons. The first two groups are included in the act under their relevant subsections however the last two groups “Other persons” and “prescribed persons” does not seem to have a list available.
I ask as I can imagine the intention of lawmakers when drafting this legislation was to ensure that people of “good sted and integrity” are certifying documents or witnessing statements/declarations. I feel that emergency services workers both volunteer and paid would fall into this category.
This question is reproduced as, with respect to the author, it demonstrates several errors that I need to address.
First a volunteer does not ‘…count as a permanent employee in the eyes of the law’. A volunteer is not an employee. There are many similarities and there have been laws to bring them together. For example under the model Work Health and Safety legislation of 2011 (which has not been adopted in Victoria) the term ‘worker’ is used. That term is defined to include a ‘volunteer’ but that is because a volunteer is not equated to an employee. If they were the Act would not need to try and define a different term.
Equally volunteers in the emergency services get workers compensation as if they are employees. But if they were employees there would not need to be special legislation to ensure that they too are covered – see for example Country Fire Authority Regulations 2014 (Vic) r 75. There is no rule of law, either common law or statute law, that says ‘a volunteer counts as a permanent employee in the eyes of the law’.
My correspondent’s reference to Victorian government agencies listed on Wikipedia tells me that they come from Victoria, but they refer to the ‘Statutory Declarations Regulations 2018 schedule 2, part 2 – other persons, item 31’. The Statutory Declarations Regulations 2018 are Commonwealth regulations. The relevant part of the Statutory Declarations Regulations 2018 (Cth) says that, amongst others, a person authorised to take a statutory declaration includes
31. Permanent employee of:
(a) a State or Territory or a State or Territory authority; or
(b) a local government authority; with 5 or more years of continuous service, other than such an employee who is specified in another item of this Part…
32. Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made.
Does this include a volunteer member of Victoria’s emergency services? Paragraph 31 could be applicable if ‘a volunteer counts as a permanent employee in the eyes of the law’ but as noted that is not the case. The person has to be a ‘permanent employee’.
The Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 1 lists some health practitioners as persons who can take an affidavit. Paramedics are not yet on that list.
To understand who can make a statutory declaration under Victorian law one needs to look at the Oaths and Affirmations Act 2018 (Vic) and the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic). The Act, s 19, lists who can take an affidavit. That list includes ‘any prescribed person or person who is a member of a prescribed class of persons’. To see who is ‘prescribed’ we look to the regulations. Regulation 5 says that authorised affidavit takers include a ‘public service employee [of] level 4 or equivalent or above’ and ‘officers and employees appointed or employed by the Country Fire Authority with a classification of level 7, however described’. Presumably an ‘officer’ of the CFA need not be an employee. If all officers were employees there would be no need to say ‘officers and employees’.
A person authorised to take an affidavit is also authorised to administer a statutory declaration (s 30) and to certify that a copy is a true copy of an original document (s 39).
My correspondent asked
… would a member of the State Emergency Service as a volunteer with 5 years continuous service be able to function as a ‘permanent employee of a state authority’ as suggested in the Statutory Declarations Regulations 2018 (Cth)?
The answer to that question is ‘no’.
With respect to taking an affidavit or statutory declaration or certifying a document as a true copy in Victoria, an officer of the CFA ‘with a classification of level 7’ can do those things. That does not extend to any member of the CFA, or Victoria SES or a paramedic.
A volunteer with the Victoria State Emergency Service with 5 years continuous service is not authorised under Victorian or Commonwealth law to take an affidavit or statutory declaration or to certify copies as true copies of the original.