SA Bill to Amend Statutory Declarations and Affidavits Procedures
Friday 9 July 2021 @ 11.58 a.m. | Legal Research
The Oaths (Miscellaneous) Amendment Bill 2021 (SA) (‘the Bill’) is currently making its way through the South Australian Parliament, having been introduced on 5 May 2021. The Bill passed the House of Assembly on 22 June, and is yet to pass the upper house. The Bill was introduced by Attorney General Vickie Chapman (‘the Attorney General’).
The Attorney General summarised in her second reading speech that:
"This Bill amends the Oaths Act 1936 [SA] to permanently expand the category of persons who can take statutory declarations, to further consolidate the laws governing who can take affidavits and to provide for a Code of Practice to be followed by declarants, deponents and witnesses when making and taking both statutory declarations and affidavits."
As the Attorney General further explains, following the pandemic, the COVID-19 Emergency Response (Section 16) Regulations 2020 (SA) ("the Regulations"), were made to:
“expand the category of persons who can take statutory declarations ... [to address] concerns about limited availability of Justices of the Peace during the pandemic”.
This Bill seeks to make the expansion of who can be an authorised person permanent. The Attorney General noted in her second reading speech that:
“the temporary expansion has been welcomed and there is benefit to the community in making the expansion permanent ... The Bill amendments will have the effect of increasing the ease with which South Australians can make statutory declarations; clarifying and simplifying the law relating to the making of statutory declarations and affidavits; and safeguarding the integrity of the process”.
Expanding categories of who can take statutory declarations
Should the Bill be assented, the following categories of people would also able to take statutory declarations:
- individuals who are licensed or registered to practise in particular professions;
- members of certain professional bodies;
- certain government employees; and
- individuals who have five or more years of continual service in a job.
The Attorney General justified these categories of people by stating that:
The Attorney General also said that the amendments would ensure that South Australia’s laws become more consistent with other jurisdictions, whose categories of authorised persons were broader than SA, even before the temporary expansion in response to COVID-19.
The Bill also seeks to amend the requirements regarding police officers witnessing affidavits or statutory declarations.
Under the current legislation, members of the police force who are deemed “proper”, can be appointed by proclamation as authorised persons to take declarations and witness affidavits. The Bill seeks to remove this requirement altogether.
The Attorney General noted in her second reading speech that the removal of this requirement was submitted by the Deputy Commissioner of Police, who found that the current requirements were:
"unnecessarily onerous and also gives rise to concerns about inadvertent publication of the names of police working in covert or surveillance areas."
The Bill also proposes that if this requirement was removed, that a new requirement be introduced mandating that police officers are trained in a course relating to taking declarations and witnessing affidavits.
In her second reading speech, the Attorney General noted that:
The Bill also seeks to protect those authorised to take statutory declarations by providing an immunity provision in the Oaths Act 1936 (SA), which would exclude an authorised person from any liability (both civil and criminal) for an honest act or omission in carrying out their duty.
Current legislation does not provide a consolidated list of authorised persons to take statutory declarations. This list is spread across various pieces of legislation. The Bill seeks to consolidate this list within the Oaths Act 1936 (SA).
The Bill also proposes to gazette a Code of Practice, which the Attorney General described in her second reading speech as what would be:
“a step by step ‘how to’ guide to making and taking affidavits and statutory declarations”.
The Bill also seeks to provide an additional offence to falsely represent oneself to be an authorised witness or to witness a statutory declaration or affidavit if not authorised to do so.
Ultimately, according to the Attorney General, in her second reading speech, the Bill’s proposed purpose is to:
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Oaths (Miscellaneous) Amendment Bill 2021 (SA) and explanatory materials available from TimeBase's LawOne service.