New legislation with respect to the taking of Affidavits and Statutory Declarations

The Oaths and Affirmations Act 2018 (VIC) has come into operation and makes practical changes to the law and simplifies the requirements for the taking of Affidavits.

Until now there have been quite formal requirements for taking an oath. This involved swearing an oath on a religious text (a bible for example), where a person holds a religious belief. Alternatively, if they chose to do so, a person making an affidavit could make an affirmation.

The new provisions include:

• A person wishing to make an affidavit is to be given the option of taking an oath or making an affirmation.

• If taking an oath, they can, if they wish to, do so on a religious text (as happens now). If they so choose they do not need to use a religious text.

• In taking an oath they do not have to express their religious belief (e.g. I swear by Almighty God) but may simply take the oath on the basis of their own beliefs rather than belief in a God.

• Importantly in the case of a child or a person with impairment, they can simply take an oath or an affirmation using terms such as “I swear (or affirm) that I promise to tell the truth and thus swear (or affirm) that the contents of the affidavit are true and correct”.

Affidavits are required in the practice and procedures of Courts.

A Statutory Declaration is similar to an affidavit except that it is usually not used in the practice and procedures of Courts and Tribunals.

A Statutory Declaration is similar also to an affidavit in that a person is making a sworn statement under penalty of perjury.

The recent legislation also expands the persons qualified to act as an authorised witness. A person authorised to take an affidavit can witness a statutory declaration but other witnesses including nurses, teachers, financial planners etc. are now able to take a statutory declaration.

Author: Peter Wilson