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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-24 Daily Xml
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Oaths (Miscellaneous) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:41): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

I am pleased to introduce the Oaths (Miscellaneous) Amendment Bill 2021.

This Bill amend the Oaths Act 1936 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.

In response to the COVID-19 pandemic, the COVID-19 Emergency Response (Section 16) Regulations 2020 were made under the COVID-19 Emergency Response Act 2020 to expand the category of persons who can take statutory declarations. This was expanded to include those persons who can witness Advance Care Directives made pursuant to the Advance Care Directives Act 2013, which in turn were based on the persons authorised under the Commonwealth Statutory Declarations Act 1959.

This expansion was due to concerns about limited availability of Justices of the Peace during the pandemic and to bring South Australian into line with the majority of other jurisdictions, in which the range of authorised persons was already broader. 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.

In this way the Bill will contribute to a key priority of the Government's Justice Agenda in 'Keeping the Law and Our Policies Current and Relevant'.

The proposed expanded list includes persons licensed or registered to practise in particular professions, members of particular professional bodies, employees of particular government organisations and persons with five or more years of continual service in specified employment. It can be expected that each of these persons will have attained a sufficient level of education to enable them to properly understand and execute the task to be undertaken and will likely be persons of good character who can be entrusted with that task.

Aligning the list of who can take statutory declarations with that under the Commonwealth Statutory Declarations Act(as currently pursuant to the Section 16 Regulations) would remove any confusion there may be amongst South Australians as to who may take State statutory declarations, wherein currently declarations made pursuant to State legislation must be declared before one group of persons, while declarations made pursuant to Commonwealth legislation must be declared before another.

In addition to permanently expanding the class of persons authorised to take statutory declarations, the Bill will remove the requirement that a police officer be proclaimed pursuant to s 33 of the Oaths Act in order to witness affidavits or statutory declarations.

This change arose from a submission from the Deputy Commissioner of Police, who argued that the requirement for police officers to be proclaimed under the Oaths Act before being able to take affidavits and statutory declarations is unnecessarily onerous and also gives rise to concerns about inadvertent publication of the names of police working in covert or surveillance areas.

The Deputy Commissioner argued that there ought to be an automatic method of approval, concurrent with SAPOL ensuring that officers complete the appropriate training.

The Bill will allow all police officers, other than probationary constables, to take statutory declarations or affidavits. It is intended that this change be accompanied by a requirement making confirmation of appointment as a police officer dependent upon satisfactory completion of the course relating to the taking of affidavits, or by prohibiting, through SAPOL General Orders, the taking of affidavits without having first completed the course. This will maintain benefits for everyday policing, as often it will be preferable for witness statements in the form of affidavits to be taken contemporaneously by police when attending the scene of a crime. In some cases, if a statement is not taken from a victim at the initial police attendance, it may be very difficult to obtain later and will jeopardise the prosecution (for example, in the case of many instances of offences of domestic violence).

Consequent on the permanent expansion of the class of persons authorised to stake statutory declarations, the Bill would insert an immunity provision in the Oaths Act, equivalent to section 15 of the Justices of the Peace Act 2005, which provides that a person authorised to take statutory declarations 'incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out functions under the Act'.

Most of the expanded categories of persons authorised to take statutory declarations, namely those listed currently in the 'Section 16 Regulations' under the COVID-19 Emergency Response Act, are to be included in regulations rather than in the Oaths Act itself. This is to more easily accommodate changes to the names of professional bodies and to the equivalent Commonwealth list of authorised persons, to which the expanded list is intended to conform.

It is proposed that registered conveyancers be included as a separate category in the Act to those persons listed in the regulations. Registered conveyancers are permitted to take statutory declarations in Western Australia, Victoria, Queensland and the Northern Territory. They are also currently permitted to take some statutory declarations under the South Australian Real Property Act 1898. As with the other core authorised persons to be included in Schedule 1 clause 1 of the Act, conveyancers will be required to take statutory declarations in the ordinary course of their employment, therefore it is appropriate that they be listed in the Act rather than the regulations.

Currently, no one Act prescribes who may take an affidavit in South Australia. Rather, the relevant provisions are contained in the Oaths Act, the Evidence (Affidavits) Act 1928 andthe Notaries Public Act 1996. The Bill would consolidate the list of persons authorised to take affidavits into the Oaths Act and consequently repeal the Evidence (Affidavits) Act.

The Bill provides for 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, Queensland and Western Australia.

To safeguard the integrity of the processes for making and taking statutory declarations and affidavits, the Bill provides for a Code of Practice to be gazetted under the Act, intended as a step by step 'how-to' guide to making and taking affidavits and statutory declarations. The Code is intended to be based on relevant parts of the existing Justice of the Peace Handbook. The need for clear guidance as to the procedure to follow is all the greater if a more expansive list of authorised witnesses is to be adopted.

As in Western Australia, Victoria and the Northern Territory, the Bill inserts a 'saving' provisions to ensure that an oath, affirmation, statutory declaration or affidavit is not invalid merely because of an inadvertent and minor non-compliance with a requirement imposed under this Act that does not materially affect the nature of the oath, affirmation, statutory declaration or affidavit.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Oaths Act 1936

4—Amendment of long title

This clause amends the long title to ensure that provision is made for affidavits.

5—Substitution of section 25

This clause substitutes section 25.

25—Taking statutory declarations

Proposed section 25 sets out the manner in which a declaration may be made and provides for the persons before whom a declaration may be made.

6—Amendment of section 27—False declaration

This clause makes a related amendment to ensure there is a reference to the requirements of section 25 (as inserted by clause 5).

7—Substitution of heading to Part 4

This clause substitutes the Part 4 heading.

8—Insertion of section 27A

This clause inserts proposed section 27A.

27A—Taking affidavits

Proposed section 27A sets out the requirements that must be complied with when taking an affidavit and provides for the persons authorised to take affidavits.

9—Amendment of section 28—Commissioners for taking affidavits etc

This clause amends section 28 to substitute a reference to a Commissioner with a reference to a person specified in Schedule 1 clause 2.

10—Substitution of section 30

This clause substitutes section 30 of the principal Act.

30—False statement by affidavit

This clause creates an offence of intentionally making a false statement in an affidavit.

11—Substitution of Part 5

This clause substitutes Part 5 of the Act.

Part 5—Miscellaneous

32—Minor non-compliance does not affect validity

This clause provides that an oath, affirmation, statutory declaration or affidavit is not invalid merely because of an inadvertent and minor non-compliance with a requirement imposed under this Act that does not materially affect the nature of the oath, affirmation, statutory declaration or affidavit (as the case requires).

33—Codes of practice

This clause provides for a code of practice in relation to statutory declarations and a code of practice in relation to affidavits.

34—Requirements of other Acts taken to be complied with

This clause provides that if another Act requires that a declaration must be made before a specified class of person or authority or an instrument must be signed or executed in the presence of, or attested by, a specified class of person or authority, the requirement will be taken to have been complied with if the declaration is made before, or the instrument is signed or executed in the presence of or attested by (as the case requires), a person specified in Schedule 1 clause 1.

35—Offence of taking affidavit, affirmation or declaration without authority

This clause creates an offence for knowingly taking an affidavit, affirmation or declaration without being authorised to do so.

It also provides that a person who is not authorised to take an affidavit, affirmation or declaration must not represent that the person is authorised to do so.

36—Immunity

Proposed section 36 provides that a person authorised under Schedule 1 incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out functions under this Act.

37—Regulations

This clause facilitates the making of regulations by the Governor.

Schedule 1—Authorisation of persons

Schedule 1 clause 1 sets out the persons before whom a statutory declaration may be made for the purposes of proposed section 25(2).

Schedule 1 clause 2 sets out the persons authorised to take an affidavit for the purposes of section 27A(3).

Schedule 1—Repeal of Evidence (Affidavits) Act 1928

1—Repeal of Evidence (Affidavits) Act 1928

This clause repeals the Evidence (Affidavits) Act 1928.

Debate adjourned on motion of Hon. T.T. Ngo.

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