Today’s correspondent is:
… writing about a situation occurring in NSW Ambulance whereby Registered paramedics are witnessing statutory declarations for people applying for Sick leave and other types of leave.
Staff were advised in E-Mail that “Statutory declarations can be signed by a registered paramedic or nurse (so any of your colleagues).”
My understanding this that this has come from an incorrect interpretation of the Commonwealth Statutory Declaration witness criteria and that in NSW Only a Lawyer, Notary Public or a JP can witness a statutory declaration.
Have I missed something or is NSW Health privy to some piece of legislation outside of the Oaths Act 1900 that I’m not aware of.
There are two different forms of statutory declaration. One is under the Oaths Act 1900 (NSW); the other is under the Statutory Declarations Act 1959 (Cth).
New South Wales
Under a New South Wales law (Oaths Act 1900 (NSW) s 21):
The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary public, commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, a federal judicial officer, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her…
I am not aware of any NSW law that would authorise a paramedic to administer an oath.
It follows that NSW paramedics cannot witness a NSW statutory declaration. It is an offence to take and receive a NSW declaration without appropriate authority. The maximum penalty is a fine of 2 penalty units or up to 12 months imprisonment (s 21A).
The Commonwealth
Commonwealth statutory declarations must be made before a prescribed person (s 9). A prescribed person is either (Statutory Declarations Regulation 2023 (Cth) r 6) is either:
a) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described); or
b) a person who, under a law of the Commonwealth, a State or Territory, is currently licensed or registered to practise in Australia in one of the following occupations:
Architect
Chiropractor
Dentist
Financial adviser or financial planner
Legal practitioner
Medical practitioner
Midwife
Migration agent
Nurse
Occupational therapist
Optometrist
Patent attorney
Pharmacist
Physiotherapist
Psychologist
Trade marks attorney
Veterinary surgeon.
That list does not include paramedics even though it does include many (but not all) of the other registered health professions. Other people authorised to take declarations are various prescribed officer holders including a:
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
Ambulance NSW employees are staff of NSW Health (Health Services Act 1997 (NSW) s 67A). They are ‘employed … by the Government of New South Wales in the service of the Crown’ (s 115(1)). Paramedics are therefore employees of the ‘state’ and if they are a permanent employee with 5 or more years continuous service then they are eligible to take a Commonwealth declaration.
A declaration is different to an oath. The fact that NSW Ambulance paramedics can take and receive a Commonwealth declaration does not mean that they are a ‘person by law authorised to administer an oath’ to bring them within the NSW Act.
Conclusion
NSW Paramedics who are permanent employees of NSW Health with more than 5 years service, can administer a declaration under the Statutory Declarations Act 1959 (Cth) but not the Oaths Act 1900 (NSW). Given the penalty for taking a NSW declaration without authority, paramedics asked to witness a declaration should be careful to ensure that the form they are presented with is the Commonwealth, and not the state form (and for an example of the Commonwealth form, see the NSW Justice of the Peace Handbook (2021), p. 30).
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
The question has also arisen whether it is appropriate to use a Commonwealth form “to get around the restrictions” for general administrative requirements of a state agency.
Hi Michael
This has come up many times in Vic.
I’m pretty sure there are restrictions around what a Commonwealth Stat Dec is able to be accepted as evidence for – eg Passport or Visa matters that are a federal issue not a state issue. Not sure that compliance with evidence of absence for the Fair Work Act is one of them. (Fair Work Ombudsman’s office once told me when I was chasing up an issue that for an 18y/o living at home a note from Mum to their employer might be considered reasonable evidence ??)
Ambulance Victoria’s only form of Stat Dec accepted for the purpose of providing evidence in lieu of a medical certificate is referenced in their policy and relates to a Statutory Declaration as described in the Crimes Act. (Vic) which Paramedics historically could not witness – maybe still can’t. Whether they can now or not is probably a bit grey as I don’t think the profession has been added post registration.
Then there’s the conflict of interest perceived or actual in witnessing a colleagues stat dec, particularly if you might know they were just dumping a shift.
AV has previously put out communications about not signing stat decs for colleagues and referencing that they only accept Stat Decs prepared in accordance with the Victorian Crimes Act (1956??). I’m sure there’s an amendment year.
I’d think regardless which state they are in, anyone who signs a stat dec for a colleague unless it’s a statement of identification for passport or commonwealth matter is probably skating on thin ice, especially if the person taking the day off is filmed at the footy or posts about their awesome party/wedding etc on socials.
I realise they are really only witnessing the signature and the person signing it is attesting to the statement being fact but there are so many people on the list who can sign it without any conflict of interest it’s just lazy not to go & find one and leave your mate out of it.
Cheers
Dave
Dave Jones Senior Team Manager – East Gippsland Ambulance Victoria Gippsland Region Ph: 0407 532 232 Fax: 5153 1110 Email: EastGippsland.STM@ambulance.vic.gov.auhttps://webmail.ambulance.vic.gov.au/owa/bairnsdale.teammanager@ambulance.vic.gov.au/redir.aspx?C=Pxuwbx8dQAoJkB_m2ehKq4tvnL906-bv8et5YWwrd2ftEF-R3k3XCA..&URL=mailto%3aEastGippsland.STM%40ambulance.vic.gov.au
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I find it absolutely strange that we have now resorted to asking people to sign a stat dec for taking sick leave and leave in general. I haven’t heard this before. I wonder if it’s a misunderstanding on what a stat dec actually is.
Probably a good one for the unions to jump onto.