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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Oaths (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 May 2021.)

Mr PICTON (Kaurna) (11:02): I solemnly declare that I am the lead speaker in relation to the Oaths (Miscellaneous) Amendment Bill 2021. The bill seeks to amend the Oaths Act 1936 and to repeal the Evidence (Affidavits) Act 1928, with the effect of making a number of amendments: firstly, expanding those who can take statutory declarations, while limiting those who can take affidavits; allowing a code of practice for declarants, deponents and witnesses when making or taking statutory declarations and affidavits; and aligning those who can take statutory declarations with the commonwealth Statutory Declarations Act.

I am sure that all of us as members of parliament are familiar with the importance of statutory declarations and of oaths. Of course, we make an oath or an affirmation when we are sworn in to parliament and also our constituents regularly need assistance with various documents that need to be signed and witnessed by one of the various categories of people who can do that.

Sir, like you, I am an admitted barrister and solicitor in the Supreme Court, nowhere near as eminent as you, which obviously enables a certain statutory power in terms of taking affidavits and statutory declarations. I am not a justice of the peace, but I know there are members of this house who are. The member for West Torrens told me that he has been a justice of the peace for 25 years, and I commend him for that. Clearly, there are different categories of people who can sign those documents.

Recently, we also had the addition under the COVID legislation where we expanded the eligibility of people who could make those declarations to members of parliament, which previously had not been in place. I know that a number of us who have not been justices of the peace have been able to sign those under the COVID legislation that has been in place.

Certainly, I noticed in my local area that it became very difficult for people to obtain somebody to sign their statutory declarations or affidavits or other documents that needed official witnessing at other premises, such as the Christies Beach Magistrates Court in my local area that regularly provides such a service. A number of our Onkaparinga city council libraries were also closed during that period, so it became more difficult.

Out of an abundance of caution, I therefore made a declaration that I was an MP under the COVID act but also a barrister and a solicitor under the Supreme Court enrolment to cover my bases to make sure that I was appropriately eligible, which involved quite a lot of writing on every document. I probably should have had a stamp made, as it would have made it a lot easier to provide that assistance for people. That is clearly one of the issues that is being looked at here in regard to who can provide those documents, in particular, statutory declarations and affidavits.

In relation to this legislation, it is important to note that the Law Society has provided some extensive commentary, including 23 suggested amendments on an earlier draft of the legislation in January this year. It appears that only portions of the Law Society's views have been incorporated into the final bill. This includes a strong view that the code of practice should be established under regulation and not simply published by the minister under gazette. The opposition will listen carefully to the government's reasons for this and consider whether any further action is required in the other place.

They express support for the proposal to consolidate in a single act the law about the taking of oaths, statutory declarations and affidavits, and they welcome the proposal to merge the Evidence (Affidavits) Act into the act as well. There were 23 different amendment suggestions, but many of those key recommendations are not in the final bill. They include inclusions of sections 6, 7, 66, 66A, and 67 of the Evidence Act 1929 into the Oaths Act. If section 7 of the Evidence Act 1929 is included in the Oaths Act, the act should also include reference to its application to all tribunals established under the law of the state.

With regard to proposed section 38, inserted by clause 11 of the draft bill, if a code of practice is required it should be prescribed by regulation and subject to parliamentary oversight and a proposed subsection should be inserted in section 27A(2) giving courts the ability to designate other people to take affidavits in their courts generally or in a particular case, and we have not had any detailed explanations in regard to that.

I will refer to the letter that was provided to the Attorney-General from the Law Society of South Australia. It was signed on behalf of Rebecca Sandford, the President of the Law Society, on 22 January 2021. It states:

2. The Bill proposes a number of amendments to the Oaths Act 1936 (SA) ('the Act') and, as you note, consolidates the provisions relating to the taking of affidavits and provides for a procedure to be followed by declarants/deponents and witnesses in the making of statutory declarations and affidavits. The Bill also permanently extends the class of persons permitted to take statutory declarations, subsequent to the COVID-19 Emergency Response (Section 16) Regulations 2020 (SA) which provided a temporarily expanded list of such persons.

This was, of course, what I referred to earlier, which included members of parliament and other people who were able to take such statutory declarations. It continues:

3. The Society expresses support for the proposal to consolidate in a single Act the law about the taking of oaths, statutory declarations and affidavits and thereby welcomes the proposal to merge the Evidence (Affidavits) Act 1928 (SA) into the Act.

4. The Society's Country Practitioners' and International Legal Practice Committees have considered the Bill and informed the Society's observations and comments as set out below.

Sections 6 and 7 of the Evidence Act 1929 (SA)

5. The Society notes that, despite the present proposal, provisions in the Evidence Act 1929 (SA) in relation to the taking of oaths will remain separate and unamended. Specifically, sections 6 and 7, which provide how oaths and affirmations are to be administered, and who can administer an oath or affirmation taken before a court respectively; and also, sections 66, 66A and 67, which provide for taking affidavits out of the state. If the Act is to be a consolidated statute about affidavits, the Society expresses support for the inclusion of sections 6, 7, 66, 66A and 67 of the Evidence Act 1929 (SA) in the Act.

6. We note the definition of 'court' pursuant to the Evidence Act 1929 (SA) includes a tribunal, whereas the Oaths Act 1936 (SA) does not include such a definition and, accordingly, does not apply to tribunals. As a result, if, as per the Society's suggestion above, section 7 of the Evidence Act 1929 (SA) is included, the Act should also reference its application to all tribunals established under the law of the State.

Clause 5—proposed substitution of section 25—taking of statutory declarations

7. We note clause 5 of the Amendment Bill deletes the current section 25 of the Act and substitutes a new provision…

8. We note the new provision leaves the form of a statutory declaration to prescription via regulation, and suggest it may be better placed in a schedule to the Act itself, given the form is unlikely to change.

9. The Society considers that if a code of practice under the new provision prescribes or outlines the process for what is required of witnesses to statutory declarations, that will assist, but should not replace, training for witnesses.

10. We note proposed section 38, inserted by clause 11 of the Bill, enables the Minister to publish such codes. If a code of practice is required, the Society believes it should be prescribed by regulation, and therefore be subject to Parliamentary oversight, rather than simply being published by the Minister via notice in the Gazette.This consideration ought to also be viewed from the perspective of an individual needing to make or witness a statutory declaration who would, under the current proposal, be required to check both the Act and Regulations, and then find a code of practice published in the government Gazette to ensure their compliance.

I think that is a key point both in terms of the ability for parliamentary oversight to be in relation to the code of practice, but also to make sure that people can actually find what they are meant to be complying with to begin with. It seems to have three different places where people are having to look to ensure that they are compliant with what has to happen is at the very least a very messy affair. The Law Society goes on to say:

Clause 8—proposed section 27A—taking of affidavits/codes of practice

11. We note clause 8 provides a procedure for the taking of affidavits which replicates that for the taking of statutory declarations, as outlined above. Whilst affidavits are generally used in connection with court and tribunal proceedings and not more broadly, the Society understands that there are cases where affidavits may be used overseas in an administrative context and not necessarily in connection with court action.

12. Proposed subsection 27A(1) provides an affidavit must be in a form prescribed by regulation and be taken in accordance with the requirements set out in the code of practice published by the Minister per proposed section 38. The Society notes the mandatory language of proposed 27A may create conflict where the form of the affidavit is prescribed by a Rule of Court, legislation or other direction. Consideration could be given to expressing 27A(1)(a) as being subject to any requirements of form identified in other legislation, regulation or Rule of Court, whether domestic or international.

13. The Society would appreciate an opportunity to consider the proposed code of practice as part of any proposed consultation and suggests courts and tribunals also be included. The primary purpose of affidavits is often for the provision of evidence to the courts and tribunals, domestic and international. The code of practice should facilitate that purpose. As noted above, an affidavit may be required to be tendered in evidence in a foreign jurisdiction and the Society hopes that the code of practice will, to an appropriate extent, also be able to accommodate the requirements of other jurisdictions.

14. The Society anticipates the code of conduct will cover the requirements of, and record keeping for, obtaining proof of identification of the deponent. Processes are already in place with respect to verification of identity for Lands Titles Office forms and similar record keeping obligations are imposed on notaries public. It is assumed that the code of conduct will be consistent with these pre-existing obligations.

15. Proposed subsection 27A(2) provides that the persons specified in schedule 1 clause 2 are able to take affidavits. The Society suggests a further subsection be inserted providing that the courts have the ability to designate other people to take affidavits in their courts either generally or in a particular case.

16. Further, the requirement that a 'non-judicial affidavit' be in the prescribed form ought not to apply where the affidavit is being sworn in South Australia with respect to any matter or proceedings outside of South Australia.

Clause 10—False statement by affidavit

17. We note clause 10 inserts section 30A into the Act which creates an offence for a person intentionally making a false statement whether orally or by writing in an affidavit.

18. The Society questions the need for proposed section 30A when perjury is already considered a serious offence [as per the Criminal Law Consolidation Act 1935 (SA) s 242]. If the provision to provide for such situations is required, the Society queries whether a provision noting that intentionally making a false statement in an affidavit constitutes perjury, similar to what is contained within the Victorian equivalent of the Act, may be appropriate [as per the Oaths and Affirmations Act (Vic) s 50]. The Society also notes proposed subsection 30A(1) appears to refer to a false statement made orally in an affidavit and queries whether this is an error.

Clause 12—Schedule 1, Authorisation of persons to take statutory declarations

19. We note proposed Schedule 1 of the Act provides for the class of persons before whom a statutory declaration can be made. We note that in addition to commissioners for affidavits, Justices of the peace and notaries public of the Supreme Court, the list also encompasses:

19.1 registered conveyancers under section 25(2) of the Conveyancers Act 1994 (SA);

19.2 a police officer appointed to take declarations and attest documents pursuant to proposed section 33; and

19.3 any other person of a class prescribed by regulation.

20. We note the same classes of person are, with the exception of registered conveyancers, authorised to take affidavits pursuant to proposed Schedule 1(2).

21. Section 33 of the Act currently empowers the Governor to, by proclamation, provide for the appointment of police officers to take declarations and attest instruments. The Society queries whether a simpler approach could be adopted, for example to allow police officers of certain ranks via their inclusion under section 25(2).

Statutory declarations and affidavits taken outside South Australia

22. As outlined above, the Society supports the moving of sections 66, 66A and 67of the Evidence Act (SA) into the Act. However, the Society expresses the view that these current provisions of the Evidence Act 1929 (SA) require modernisation.

23. The Society suggests it be made expressly clear that a statutory declaration or affidavit for use in connection with any matter or proceeding in South Australia may be made in any other State or Territory of Australia and taken before any person authorised by the law of such State or Territory or affidavits (as the case may be).

24. The Society also queries whether a statutory declaration for use in South Australia, if made in any other State or Territory of Australia should, as an alternative, also be made in accordance with the Statutory Declarations Act 1959 (Cth).

25. Further, it should also likewise be made clear in simple language that any statutory declaration or affidavit for use in South Australia may be taken in any country that is a member of the Commonwealth of Nations before any person who is authorised by the law of that country (or the part of the country in which said statutory declaration or affidavit is taken) to witness statutory declarations or affidavits, as the case may be.

Statutory declarations and affidavits made in non-Commonwealth countries

26. The Society considers that it should be expressed in clear language that affidavits made in the above situations can be taken before any Australian Consular Official or any notary public authorised in that place.

27. In the event that either a statutory declaration or affidavit is taken by a notary public, the Society suggests there be a further provision addressing the following:

27.1 if taken in a country to which the Hague Apostille Convention applies—

I am sure, Mr Speaker, you are across the details of that convention—

the notary public's signature and seal can be sufficiently verified by the relevant authority of that country issuing an apostille in accordance with that convention (as that is the law in Australia by virtue of the Foreign Evidence Act 1994 (Cth), at least in relation to affidavits, but could likewise be extended to statutory declarations); and

27.2 if taken in a country that is not party to the Hague Apostille Convention, the notary's signature and seal should be authenticated by the government of that particular country and then legalised by an Australian Consular official if there is one in that country that provides such a service (although it should be noted that as Australian Consulates do not exist in every country and there are some countries that only provide very limited services, e.g. Taiwan—

this is a controversial issue in relation to foreign affairs—

this may not be a complete solution).

Should you have any questions, please do not hesitate to contact me.

Yours sincerely

Rebecca Sandford

PRESIDENT

That information was provided to the Attorney-General from the society in January this year. As you can see, it was a very detailed set of work done by the Law Society, using a number of their committees, including the regional committee and also the international law committee.

I think you can see the complexity in some of this area of law, particularly when it comes to international oaths and affidavits and signatures that need to be verified. You quickly start getting into international law territory. In our electoral offices, we often see the process of noting issues in terms of red-light cameras, who was driving, etc. At the other end of the scale, clearly there are some very complex international law issues that also need to be contemplated.

Through the process, though, this letter was received by the Attorney-General in January and we have had this bill now presented to the house, but there does not seem to have been a significant amount of action taken in relation to amending it. It was laid on the table for the first time in this house on 5 May, so clearly there was the opportunity to address some of those issues. I think a couple have been, but the vast majority of issues raised by the Law Society have not.

I think in particular the importance goes to those issues in relation to the code of practice, which is going to be central to the operation of this act, and to making sure that we have both proper parliamentary oversight and a system in which everybody understands what their particular responsibilities need to be.

In relation to the code of conduct, we will certainly be listening to what the government's explanation is for why we do not need to consider in the other place further action in relation to codifying that in the legislation. It is possible that not every Attorney-General will have the same standards as the current incumbent in relation to what should be put in there, and this parliament must consider the long-term implications of placing sweeping powers at the tip of the minister's pen. Do not take it as an insult in relation to this Attorney-General. We are obviously worrying about what future Attorneys may consider.

The Attorney-General's office has not provided detailed explanations for why so many of those Law Society recommendations, such as the ones I have read out, were ignored. Because of this, our final position will benefit from further discussions with the Law Society about which amendments are considered crucial. This is an important area of law. It does impact upon South Australians every day, and we need to make sure that we get this right.

It is important that we are now expanding the people who can sign statutory declarations and codifying that, following the COVID legislation. I am also interested to know the other class of person prescribed by regulation that the Attorney-General has in mind who would be able to witness statutory declarations and would also be proposed to be able to take an affidavit, which under schedule 1 clause 1(f) and schedule 1 clause 2(e) would be prescribed by regulation rather than explicit in the legislation. Why can we not prescribe those people now and have that properly codified in relation to the act?

Consistent with WA, Victoria and the NT, the bill seeks to insert a provision to ensure that an oath, affirmation, statutory declaration or affidavit is not valid merely because of inadvertent or minor noncompliance with a legislative requirement that does not materially affect the nature of the relevant declaration.

Whilst broadly supportive and not seeking to delay the bill in its practice, the opposition will continue discussions with stakeholders and the Law Society on their final position and amendments in the other place. Having now delved into this area and representing the shadow attorney-general, the Hon. Kyam Maher, in this house, I will certainly give due credence to getting in place a good stamp that can allow me—under schedule 1 clause 1(a) as a commissioner for taking affidavits in the Supreme Court, or schedule 1 clause 2(a) likewise in relation to affidavits—to assist members of my electorate in a much quicker process than my writing that out every single time, which can mean a significant delay.

In closing, I would like to thank all those people who volunteer to be justices of the peace in South Australia. It can be quite burdensome and there can be a lot of work involved. It is certainly a volunteering position that I think is not recognised nearly as much as other volunteering positions in our community. Nothing has shown how much we rely on those people as what we saw last year. A lot of those services, where people who are employed or who are able to provide those services, disappeared.

Many volunteers had to provide those services at a time when we were clearly at risk in terms of the spread of the virus and people being concerned about their own health and wellbeing. Many volunteers provided that essential service to keep those operations and the legal process operating and keep those matters that are very important to people ticking along.

Thank you to all our justices of the peace. Thank you to those members of parliament and staff members who provide that service, and thank you particularly to those members of the community who do not get paid and who do it out of the goodness of their heart for their community. It is a very worthwhile service and we thank them.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:27): I acknowledge the opposition's indication of support for the bill and, for the reasons that are outlined, their acceptance, I think as the Law Society of South Australia has accepted, of the importance of accommodating these amendments.

COVID-19 has hit us in very different and diverse ways, and one of the early casualties of the circumstances that prevailed back in March 2020 was that we found there was a shortage of justices of the peace available to undertake this workload. In fact, members might recall the member for Florey even raised this question in the parliament as to how we were going to cope with the demand for declaratory obligations with no-one available to do it because, ultimately, a lot of council offices and local government offices closed down.

For a very short time, I think the only bastion of available JPs was in our own electorate offices. Even then, we had to move to protect the health of our staff, so this dilemma needed to be addressed. I am pleased to say that at the time the commonwealth did introduce some relaxation on the obligation to execute documents in the presence of a justice of the peace to enable people to access JobKeeper and JobSeeker, for example. These are the types of initiatives that came in that placed even greater demand on the need for JPs, so obviously modifications had to be made.

It is sometimes events like this that highlight to us that we should look at how we might address this. We are continuing to manage under the Emergency Management Act and we are continuing to deal with COVID-19 as a major factor in how we meet and mix in the community, so this work needed to be done. I am pleased to have an indication of support.

The member does, however, raise a number of issues that have been outlined in the submission by the Law Society as to other areas of reform they see merit in advancing. I am sure many of these do, but can I say in general terms—I think even they themselves acknowledge this—there is a whole body of work that needs to be done to be able to address these broader issues, including how we deal with documents that are certified by or that require a notary public.

I just remind members that the Notaries Public Act 2016 was looked at quite comprehensively by the previous Attorney-General and a new regime for notaries public was passed, which we have in South Australia, but that does not mean that the issues that have been raised by the Law Society should not be addressed. We do not discount those worthy contributions on areas of other reform, but they will need a much broader body of work.

I should also acknowledge a submission that was received by the member for Florey herself and I just place on the record my appreciation to her for doing this. It appears she actually commissioned the Parliament Research Library to undertake work as to legislative frameworks for oaths, affirmations, affidavits and statutory declarations across other jurisdictions in Australia and New Zealand, which is often a helpful guide to assist us as members of parliament.

In many ways, as Attorney-General I have the privilege of a whole army of people who can assist me in finding out that information, but for the parliament she provided a summary of the work that was done by the Parliament Research Library in looking at what other jurisdictions have done. Some of this has been picked up in the submission that has been highlighted by the member. I thank him for bringing it to our attention. I have read the submission by the Law Society. There are other matters in a bigger area of work that we will continue to look at.

I also point out that, of the many people who were consulted on this bill, there has been overwhelming support for this request. Obviously, as has been previously pointed out, the Australian Banking Association was one organisation whose members deal with practical applications of how we might manage this during the COVID situation. Of course, the conveyancers who have been accommodated in this bill also presented submissions to us.

I would ask members to appreciate that the development of this bill in light of COVID has been generally confined, but with amendments as we took consultation on this, to deal with the COVID circumstance. We anticipate, as we are always hopeful, that sooner rather than later we will be outside of emergency management, but there has been a helpful development of how we might deal with this for some time to come by adding parties who are able to undertake responsibilities under the Oaths Act to assist us as we go through this, identifying the benefit in making these permanent and being able to assist us in the community.

I think I am right in saying that, except for conveyancers, all these other people scheduled under this proposed legislation are already in the commonwealth law, and they are of course valued in being able to undertake the duties in that regard. With that, I indicate that the Oaths (Miscellaneous) Amendment Bill before you is worthy of your positive consideration.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: In relation to the bill, as I mentioned in my second reading speech, one of the key issues that has been raised by the Law Society is in relation to why the government has decided not to include sections 6, 7, 66, 66A and 67 of the Evidence Act 1929 into this act, and they have outlined a number of reasons why they believe that would be appropriate. Therefore, my question to the Attorney is: why has that not happened, and what is the Attorney's response to those concerns from the Law Society?

The Hon. V.A. CHAPMAN: Largely in relation to this area, can I say firstly that during the course of the COVID pandemic and the early period of the consideration of how we might address the shortage of JPs, I did specifically consult with the Chief Justice. He was very clear and has been very clear that he did not see the need to extend signatories for the purpose of affidavits. He thought that was an obligation in which a much more narrower obligation prevails.

Obviously legal practitioners are key in that regard, and he took the view that that should continue even during COVID. If it meant in practical terms that a legal representative had to get in a car and go out and visit an elderly person who was not wanting to leave their home because of COVID circumstances, then that was a service I think he expected we as legal practitioners should provide. So there was not an appetite at all to start—I do not want to say interfere with that—making adjustments on that in the light of the COVID environment.

Nevertheless, the Evidence Act request on page 1 of the Law Society's letter and the proposals in relation to the clauses that the member has referred to, I think even as the society acknowledges, are matters for further work to be done and that is the reason why it is not in this bill.

Mr PICTON: Thank you. I wonder if the Attorney can outline who she has consulted with in relation to this legislation and what the results of that consultation were.

The Hon. V.A. CHAPMAN: The Chief Justice; the Chief Judge; the Chief Magistrate; the state's Courts Administration Authority; the Director of Public Prosecutions; the Acting Commissioner of Police, Ms Linda Williams; the Minister for Human Services; Frances Bedford MP, as I have indicated the member for Florey has presented a submission; the Crown Solicitor; the Registrar-General; the Commissioner for Consumer Affairs; the Law Society of South Australia; the Legal Services Commission of South Australia; the Australian Banking Association; the Australian Medical Association (at the time Dr Chris Moy was the president), the Local Government Association; the Royal Association of Justices of South Australia; the Hon. Stephen Wade also made a submission as the Minister for Health and Wellbeing; and Consult Australia. Largely they indicated support and/or some suggested changes, or did not make any comment.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Mr PICTON: In relation to the taking of statutory declarations, this is another issue that the Law Society raised. This is going to be prescribed by regulation under section 25(1)(a). The question that the Law Society has raised is whether it would be more appropriate that the full details of that be set out by the legislation in the law rather than the regulations. I am wondering if the Attorney has a response to that?

The Hon. V.A. CHAPMAN: It appears that during the course of the development of these reforms, as the member is well aware, the new electronic management operation was also being installed in the state courts. The initial discussions in relation to this really relate to the development of a form necessary to accommodate this; it is commonly in the regulations. But the form, I am advised, in the original discussion about it was not able to be accommodated in the new courts administration electronic operation. I am advised that the CAA's position was generally for us as parties in relation to this not to prescribe forms. So, in consultation on those matters, this was seen as the most appropriate course of action.

Clause passed.

Clauses 6 and 7 passed.

Clause 8.

Mr PICTON: In relation to this section regarding affidavits, a number of issues were also raised by the Law Society in their submission, one of which was in relation to new section 27A(1). They said:

…The Society notes the mandatory language of proposed section 27A may create conflict where the form of the affidavit is prescribed by a Rule of Court, legislation or other direction. Consideration could be given to expressing section 27A(1)(a) as being subject to any requirements of form identified in other legislation, regulation or Rule of Court, whether domestic or international.

I am just wondering what the Attorney's response to that suggestion raised by the Law Society is.

The Hon. V.A. CHAPMAN: As a result of the information provided by the Law Society and other contributions new subsection (2) was added in, which is new section 27A(2), to cover that point.

Mr PICTON: The other suggestion that was raised in relation to this by the Law Society was in relation to what is now new subsection (3). They said new section 27A(2)—it is now 27A(3)—provides:

…that the persons specified in schedule 1 clause 2 are able to take affidavits. The Society suggests a further subsection be inserted providing that the courts have the ability to designate other people to take affidavits in their courts either generally or in any particular case.

That does not appear to have been taken up as a suggestion. I am wondering what the government's and the Attorney-General’s response to that suggestion from the Law Society is.

The Hon. V.A. CHAPMAN: I am advised that, to the extent that the court rules will deal with this matter, this will otherwise make provision for it. I hasten to add that the Chief Justice is very clear about his position on this, and so clearly a fair bit of work has to be done. To assist the committee, I just indicate the amendments that were picked up just so it is clear.

I know the member is concentrating on the Law Society's submission and, as valuable as that is and as it always is in relation to legislation, there are a number of other people who make submissions. Of course, we have to consider all of them—about 25 of them or so. In any event, I will quickly read out the amendments so that the member is clear about this.

Firstly, in light of the submission made by the then Acting Deputy Commissioner of Police, the bill removes the requirement that a police officer be proclaimed, pursuant to section 33 of the Oaths Act, in order to witness affidavits or statutory declarations since this was an onerous process and gave rise to concerns about inadvertent publication of the names of police working in covert surveillance areas. Rather, the bill now allows all police officers other than probationary constables to take statutory declarations or affidavits, and there are a number of obvious benefits in relation to that.

Secondly, as suggested by the Local Government Association, the bill provides for the inclusion of an immunity provision similar to section 15 of the Justices of the Peace Act 2005, which provides: 'A justice incurs no civil or criminal liability for an honest or omission in carrying out or purportedly carrying out official functions.' That has been accommodated.

Thirdly, most of the expanded categories of persons authorised to take statutory declarations are now to be included in regulations rather than the Oaths Act to more easily accommodate changes to the names of professional bodies and to the equivalent commonwealth-listed authorised persons, to which the expanded list is intended to confirm.

Fourthly, following the comments made by the Commissioner for Consumer Affairs and, indeed, the member for Florey, the bill provides for the inclusion of offences of falsely holding oneself out as an authorised witness and witnessing a statutory declaration or affidavit if not authorised to do so, as contained in the equivalent legislation in a number of jurisdictions, including Victoria, WA and Queensland.

Fifthly, the code of practice for making and taking statutory declarations and affidavits is now proposed to be gazetted under the act rather than contained in the act itself, on the advice of parliamentary counsel. This will allow for a more reader-friendly narrative style, which will be important in light of the need for any lay persons to frequently refer to and understand its contents, intended as a step-by-step how-to guide to making statutory declarations or taking affidavits.

Finally, it is now accommodated to amend the Notaries Public Act on the advice of parliamentary counsel that this was unnecessary in terms of needing to make reference to the specific powers to take affidavits under the Oaths Act, nor to amend the Evidence Act provisions regarding the taking of affidavits outside of the state. On advice from parliamentary counsel, this would entail significant redrafting and further policy consideration. I hope for the benefit of the committee that outlines a summary of the accommodation of the valued contribution by stakeholders in this consideration.

Clause passed.

Clause 9 passed.

Clause 10.

Mr PICTON: This substitutes the section to have a false statement by affidavit: 'A person who intentionally makes a false statement , whether orally or in writing, in an affidavit is guilty of an offence.' The maximum penalty is seven years' imprisonment. Attorney, why is the offence for a false statement by affidavit a maximum of seven years' imprisonment and noted that this could be intentional, but also covers a very minor misstatement of fact? Why is the penalty for taking an affidavit without authority changing, as I understand, from one year and $2,000 to six months and $10,000?

The Hon. V.A. CHAPMAN: Just for clarity, I think the member is referring to the penalty clause for a person who is not authorised for the purpose of taking the affidavit. That is the penalty he is referring to.

Mr Picton: The second one, yes.

The Hon. V.A. CHAPMAN: The position in relation to the person who actually makes a false statement—that is, the party whose statement is being witnessed—is a seven-year imprisonment. Currently, my understanding is it requires that if there is a breach by the party in these circumstances they can then be charged with perjury. For the benefit of members who are not familiar with it, that is in relation to signing a false statement. It can either be in a courtroom or when you are signing under the Oaths Act.

To perjure oneself, of course, is to bear false witness, etc., and provide false information in that document. It is a very serious matter so, rather than having to be re-charged through the perjury process, this amendment, on the advice we have received, is commensurate with the penalties and allows for the discretion of the authority, the court actually dealing with this matter, to take into account whether it is a minor breach or omission or whether it is something that is very significant to the document.

For example, if someone were to falsely claim their birthdate and try to pretend they are older than they are, that might be very minor in the scheme of things for some statements. On the other hand, if it is to give them eligibility for a benefit, in relation to the substance of the matter in the document, as a result of pretending that their age was, say, over 18 years, that may be very significant and germane to the substance of the document it was going to be used for. Those are issues the court that deals with the matter will be able to take into account.

Mr PICTON: I am sure we all agree that this is a very serious matter, but this was another issue that was raised by the Law Society in querying whether this provision would not otherwise currently be covered by perjury offences. They said:

The Society questions the need for proposed section 30A when perjury is already considered a serious offence [as per the Criminal Law Consolidation Act1935 (SA) s 242]. If a provision to provide for such situations is required, the Society queries whether a provision noting that intentionally making a false statement in an affidavit constitutes perjury, similar to what is contained within the Victorian equivalent of the Act, may be appropriate.

The Hon. V.A. CHAPMAN: Let's be clear: the offence of perjury remains. It is a matter that can be prosecuted and it has a seven-year imprisonment term. What is going to be clear now, in this Oaths Act, is that you are guilty of an offence if you make the declaration incorporating a false statement and the penalty is up to seven years. I think that has made it abundantly clear.

I do not disagree with the member that perjury is a very serious offence—of course it is—but he started his inquiry in relation to this clause by asking how will we now accommodate the minor breaches. I am just letting him know this is the provision that is there. We are not removing the offence of perjury under the Criminal Law Consolidation Act, but we are making it a specific offence under this act and of which there is an offence and the same penalty.

Mr PICTON: This clause states whether orally or in writing, in relation an affidavit. This was something the Law Society picked up on and said: 'The Society also notes proposed subsection 30A(1),' as it was then, 'appears to refer to a false statement made orally in an affidavit and queries whether this is an error'. Is that an error, as the Law Society has queried?

The Hon. V.A. CHAPMAN: Yes, the Law Society raised the issue; that is agreed. The advice we received was that the inclusion of the full statement being made orally was firstly taken from, as I understand it, the Victorian act offence which includes that—for example, to cover modifications for special needs deponents who indicate orally their approval for the contents of the affidavit to be read to them.

Clause passed.

Clause 11.

Mr PICTON: This is an issue which, if not significantly debated with proposed amendments in this house, may well be the focus of significant discussions in the other place in relation to the Attorney's proposal to have the code of practice determined by the minister and inserted into the Government Gazette rather than determined by the Governor in Executive Council and become a regulation that is then subject to the appropriate scrutiny of both houses of parliament.

As I flagged in our second reading speech, this is something that the opposition will consider further, and is consulting on further, in relation to what the Attorney-General has proposed. However, I will give the Attorney the opportunity to explain to the committee why, when such serious objections are being raised about the minister holding this power without parliamentary oversight, she is persisting that this be something that the minister is able to determine and put into the Government Gazette rather than being a regulation that could be subjected to parliamentary oversight.

The Hon. V.A. CHAPMAN: At present, there is a JP code of practice, and that is not legislated at all in a regulation or anything. It is obviously the association, that people sign up to this, etc. I just make the point that this is not intended as a new regulatory regime. It is a how-to guide that is to go on a website and, as I indicated in my previous answer, in consultation with parliamentary counsel. If I just refer to my previous answer, I have set out in detail the reason for that. Largely, it is to make it more reader-friendly. It is a how-to guide. It is not something which imposes that regulatory obligation that we would normally expect.

Clause passed.

Schedule 1.

Mr PICTON: Similarly, in relation to the schedule, the Attorney has proposed that she will be able to make 'any other person of a class prescribed by regulation'. Who does the Attorney have in mind to fit under such section and why would we not legislate that in this bill rather than give the government the power to subsequently add them by regulation?

The Hon. V.A. CHAPMAN: Again, I referred to this matter in the previous answer I gave, which is to accommodate the expanded category of persons to take statutory declarations. Some of these persons have a title which changes or are a member of a body which changes its name, so the idea of having a catch-all which says 'any other person of a class prescribed by regulation' is to do just that. There is no identified group that I can think of at this point that would be a new group. When we did consider a new group, such as conveyancers, we added it into the bill.

I can tell you that there is no other group that I can think of. Largely, we have looked at the commonwealth rules. They have worked very well using that list during the course of the COVID early emergency period. We are seeking to make that permanent, and when we came to this house to do so, with a request from conveyancers, which was considered and seemed to be of merit, everyone seemed to agree that we would add those in, and they are in the statute. We are not in any way trying to have some secret list of other people we are suddenly going to appoint, like retired Labor MPs or something.

Mr Picton: I think it is unlikely you would do that.

The Hon. V.A. CHAPMAN: That would be very unlikely.

Mr PICTON: I believe this is my last question, but I may well be prompted. We have already talked about the COVID emergency act and additional classes of people who were added at that time. What has been the Attorney's consideration as to the people who have not been proposed for this legislation but who were in the COVID legislation? Why would we not add them to have the ability in a permanent sense to be able to take statutory declarations?

The Hon. V.A. CHAPMAN: Let me assure the member that they will all be accommodated in the regulations. Those who are already covered in different acts are specified in this act. The proposed list for the regulations is as per the list currently available under the commonwealth group. I am happy to read them out for the benefit of members; it will just take a couple of minutes. The list includes:

agents of the Australian Postal Corporation in charge of an office supplying postal services for the public;

Australian consular officers and Australian diplomatic officers within the meaning of the Consular Fees Act 1955 of the commonwealth;

bailiffs;

bank officers with five or more continuous years of service;

building society officers with five or more years of continuous service;

chief executive officers of the commonwealth courts;

clerks of courts;

credit union officers with five or more years of continuous service;

employees of the Australian Trade and Investment Commission, and there are certain lists of restrictions in relation to those;

employees of the commonwealth, again, with a list of restrictions;

fellows of the National Tax and Accountants Association;

registered health practitioners;

finance company officers with five or more years of continuous service;

holders of statutory office not specified in another item of this list;

marriage celebrants registered under subdivision C of division 1 of part IV of the Marriage Act 1961 of the commonwealth;

members of the Governance Institute of Australia;

members of Engineers Australia, other than at the grade of student;

members of the Association of Taxation and Management Accountants;

members of the Australian Institute of Mining and Metallurgy;

members of the Australian Defence Force, again with certain restrictions;

members of the Institute of Chartered Accountants in Australia, CPA Australia or Institute of Public Accountants;

members of the parliament of the commonwealth, parliament of the state, a territory legislature or local government authority of a state or territory;

ministers of religion registered under subdivision A of division 1 of part IV of the Marriage Act 1961 of the commonwealth;

patent attorneys or trademark attorneys;

permanent employees of the Australian Postal Corporation with five or more years of continuous service who are employed in the office supplying postal services to the public;

permanent employees of the commonwealth or commonwealth authority or a state or territory and/or state or territory authority or a local government authority with five or more years of continuous service who are not specified otherwise in the list;

senior executive service employees of the commonwealth or commonwealth authority or a state or territory or a state or territory authority;

Sheriff's Officers;

teachers employed on a full-time basis at a nurse or tertiary education institution;

veterinary surgeons;

persons enrolled on the roll of the Supreme Court of a state or territory or High Court of Australia or a legal practitioner, however described; and

any other person as prescribed, permitted by or under the act or rules of a court or the rules of tribunal to take the statutory declaration, which is what I referred to before.

I hope anyone who is listening to this important piece of legislation and committee review will note that if they are in any of those categories they are potentially going to have a new job.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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