Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018

Affidavit: A written statement of fact sworn or affirmed to be true before an authorised affidavit taker. Schedule 1 prescribes the exact form, which includes the deponent’s name, address, occupation (or ‘child’), the statement in numbered paragraphs, a warning about perjury, a signature block (to be signed in the presence of the authorised taker), and the taker’s details including capacity and address. Schedule 2 prescribes three alternative sets of words depending on whether the deponent takes an oath (swearing by Almighty God or a named god), makes an affirmation (solemnly and sincerely affirming), or is a child or cognitively impaired person (promising to have told the truth). The deponent must speak those words aloud (regulation 8).

Statutory declaration: A written statement declared to be true before an authorised statutory declaration witness. Schedule 3 prescribes the form (name, address, occupation, numbered paragraphs, a warning that making an untrue declaration is an offence, and signature in the presence of the witness). Schedule 4 prescribes the words the person must say aloud: “I, [full name] of [address], declare that the contents of this statutory declaration are true and correct.” The form also includes a box for the witness to confirm that reasonable modifications were used if the declaration was prepared with assistance (e.g., for a person with disability), and that the contents were read to the person.

Certified copy: A copy of an original document that has been certified as a true copy by a person authorised to do so (under sections 41 or 43 of the Act). Regulation 10 prescribes the words “Certified to be a true copy of the original seen by me” (Schedule 5). For a certified copy of a certified copy (i.e., a copy of an already certified copy), regulation 11 prescribes “Certified to be a true copy of another certified true copy seen by me” (Schedule 6). These words must be written or stamped on the first page of the copy, unless there is insufficient space (regulations 10(2) and 11(2)).

Authorised affidavit taker: Defined by reference to section 19(1) of the Act. The Regulations in section 5 supplement the Act by prescribing additional classes: (a) public service employees at level 4 or equivalent or above; (b) officers of the Transport Accident Commission at level 4 or above; (c) State Trustees employees at level 4 or above; (d) Victorian Institute of Teaching Investigators at level 4 or above; (e) Country Fire Authority employees at level 7; and (f) public service employees at level 2 or 3 when acting in the course of duties in a court or tribunal (inserted in 2019). ‘Public service employee’ means a person employed under Part 3 of the Public Administration Act 2004. The classification levels are drawn from the employing agency’s grading system, not the Regulations themselves, which creates a reliance on external definitions.

Authorised statutory declaration witness: Defined by section 30(2) of the Act, and the Regulations in section 6 prescribe nine additional classes: public service employees at level 2 or above; TAC officers at level 2 or above; State Trustees employees at level 2 or above; school principals (under the Education and Training Reform Act 2006); Victorian WorkCover Authority officers at band 2 or above; VicRoads officers at level 2 or above; protective services officers; police reservists; IBAC officers; Victorian Inspectorate officers; councillors (under the Local Government Act 1989); and licensees under the Conveyancers Act 2006. The threshold for witnesses is generally lower (level 2) than for affidavit takers (level 4), reflecting the less formal nature of statutory declarations.

The Regulations affect a wide range of people and organisations in Victoria, both in the public and private sectors. Directly affected are the individuals and classes authorised to take affidavits or witness statutory declarations. These include public service employees at specific classification levels - level 4 or above for affidavits, level 2 or above for statutory declarations - which covers a large portion of the Victorian public service. Also included are employees of key state agencies: the Transport Accident Commission, State Trustees, the Victorian Institute of Teaching, the Country Fire Authority, the Victorian WorkCover Authority, VicRoads, and Victoria Police (protective services officers and police reservists). Councillors under the Local Government Act 1989 are authorised statutory declaration witnesses but not affidavit takers, which is a noteworthy distinction. Licensees under the Conveyancers Act 2006 are also authorised witnesses for statutory declarations, giving private sector conveyancers that power. Independent bodies such as IBAC and the Victorian Inspectorate have their officers included. The 2019 amendment expanded affidavit-taker eligibility to lower-level public service employees (level 2 or 3) when working in a court or tribunal setting, which would include registry staff.

Indirectly affected are all persons who need to make an affidavit or statutory declaration in Victoria, or who need to certify copies of documents - that includes litigants, witnesses, parties to contracts, applicants for licences or permits, property purchasers, and anyone required to provide sworn evidence or a formal declaration to a Victorian court, tribunal, or government body. Businesses that regularly deal with sworn statements (such as law firms, conveyancers, real estate agents, and financial institutions) must ensure their staff who are authorised persons hold the correct classification and follow the prescribed procedures. The prescribed forms and words must be used exactly; any deviation may lead to rejection of the document, causing delay and cost. For example, a statutory declaration that does not include the warning about offence liability or that has the witness sign before the declarant could be invalid. The requirement for the authorised person’s “personal or professional address” in legible writing, typing or stamp (Schedules 1 and 3) imposes a practical burden on witnesses to ensure their details are accurate and complete.

Individuals who are not public servants or in the prescribed classes cannot act as authorised affidavit takers or statutory declaration witnesses. This limits the pool of people who can assist, especially in rural or remote areas, and may increase the cost or inconvenience for individuals who need to find an authorised person. The free-market effect is a restriction on supply of witnessing services; however, the Act itself (not the Regulations) creates the basic categories, and the Regulations expand them somewhat. The compliance burden falls on employers and agencies to ensure their employees are aware of their classification and their powers.

Duties on deponents and declarants: A person making an affidavit must use the form set out in Schedule 1 (regulation 7) and must swear or affirm (or promise if a child or cognitively impaired) the words set out in Schedule 2 (regulation 8). The form requires that the affidavit be divided into numbered paragraphs, that the contents be stated as true and correct, and that the deponent signs in the presence of the authorised affidavit taker. The deponent must be aware that making a false affidavit is an offence of perjury. For a statutory declaration, the person must use the form in Schedule 3 (regulation 9(1)) and say the prescribed words in Schedule 4 (regulation 9(2)). The form includes a statement that “making a statutory declaration that I know to be untrue is an offence.” The person must sign in the presence of the authorised witness.

Duties on authorised persons: For affidavits, the authorised affidavit taker must be of the prescribed classification (regulation 5) and must witness the signing, then add their own signature, name, capacity, and address in legible form on the same day. The taker must not take an affidavit from a person who is not physically present (implied by the requirement to sign in the presence). For statutory declarations, the authorised statutory declaration witness must be of a prescribed class (regulation 6) and must sign in the presence of the declarant. The form includes an optional box for the witness to confirm that reasonable modifications were used and that the contents were read to the person. That box must be deleted if not applicable, which is a subtle compliance point. The witness must record their qualification (e.g., “JP”, “public service employee level 2”) as part of the form.

Rights: A person has the right to choose between an oath (swearing by God) or an affirmation (non-religious) when making an affidavit (Schedule 2). A child or cognitively impaired deponent may make a promise instead. There is no right to depart from the prescribed words; they are mandatory. The right to make a statutory declaration is not absolute: the witness must be authorised and sign in the presence of the declarant. The Regulations do not create a right to have a document certified; they merely prescribe the words to be used if certification is sought (Schedules 5 and 6). The witness’s right to act as such depends on classification and context: for example, a level 2 public service employee may witness a statutory declaration but not take an affidavit, unless they are in a court or tribunal setting under the 2019 amendment (which allows level 2 or 3 for affidavits in that limited context).

Certified copies: The duty on the certifier is to write or stamp the prescribed words on the first page (regulation 10(2), 11(2)). If there is insufficient space on the first page, the words can be placed elsewhere, but the regulation does not specify where - presumably on the next page or on a separate sheet attached. This creates a minor ambiguity. The prescribed words for a copy of a certified copy are different: “Certified to be a true copy of another certified true copy seen by me.” This is a new concept introduced by the Act and implemented by the Regulations; certifiers must ensure they use the correct wording to avoid invalidating the certification.

The Regulations themselves do not create any penalties. Penalties for non-compliance arise from the Act or from general criminal law. The most significant penalty is for making a false affidavit: the form in Schedule 1 includes a statement that “a person making a false affidavit may be prosecuted for the offence of perjury.” Perjury is a serious offence under Victorian law, carrying potential imprisonment. Similarly, the statutory declaration form in Schedule 3 warns: “making a statutory declaration that I know to be untrue is an offence.” The Act (not reproduced here) would specify the penalty for false declarations, but the Regulations ensure that the warning is present on the face of the document, which serves both as an enforcement mechanism and as a deterrent. The failure to use the correct form or prescribed words may not itself be an offence, but it could render the affidavit or declaration inadmissible or void, which is a practical penalty through procedural rejection. For example, if an affidavit is not in the prescribed form, a court may refuse to accept it (see section 23 of the Act, which makes the form prescribed). This could cause a party to miss a deadline or lose a case, with significant cost consequences. The Regulations also create an enforcement risk for authorised persons who sign off on documents without proper witnessing: they may face disciplinary action by their employer (if public servants) or potential liability for negligence or misconduct. However, the Regulations do not set out any specific fines or sanctions; those are left to the Act or other laws. The enforcement regime is therefore indirect but effective: the risk of invalidity and the cost of re-doing documents incentivises compliance. The prescription of forms and words removes discretion, reducing the risk of variation but also increasing the cost of getting it wrong. From a free-market perspective, this mandatory standardisation reduces transaction costs for the court system and for parties who rely on the documents, but it also creates a monopoly on the forms - no other format will do, even if substantively equivalent.

The Regulations are subordinate legislation under the Oaths and Affirmations Act 2018 (the Act). They flesh out the Act’s provisions, particularly sections 19 (authorised affidavit takers), 23 (form of affidavit), 25(2) (prescribed oath or affirmation), 30 (statutory declarations: form and words), 41 (certified copies), 42 (certified copies of certified copies), and 43 (other certification provisions). The Act itself establishes the basic categories of authorised persons and the requirement for forms; the Regulations supply the detail. If the Act were amended, the Regulations may need to be updated, but they continue in force until they sunset or are revoked. The Regulations cross-reference many other Victorian statutes to define who is an authorised person. For example, regulation 5(2)(a) refers to officers appointed or employed under section 25(5) of the Transport Accident Act 1986; regulation 5(2)(b) refers to State Trustees under the State Trustees (State Owned Company) Act 1994; regulation 5(2)(c) refers to Victorian Institute of Teaching Investigators under the Education and Training Reform Act 2006. This means that any changes to those Acts (e.g., renaming an agency or altering classification levels) could affect who is authorised under the Regulations, unless the Regulations are amended concurrently. There is a risk of misalignment if the principal Acts are amended. The definition of ‘public service employee’ (regulation 4) ties into the Public Administration Act 2004 Part 3, which covers the Victorian public service. The classification levels (e.g., level 4 or equivalent) are not defined in the Regulations themselves; they draw on administrative grading systems within each agency. This creates an interaction with each agency’s internal classification framework, which is not publicly available in the Regulations. For private sector workers, the interaction with the Conveyancers Act 2006 (regulation 6(l)) allows licensed conveyancers to witness statutory declarations, which aligns with their role in property transactions. The Regulations do not interact with federal laws (e.g., the Statutory Declarations Act 1959 (Cth)), which has its own forms and authorised persons; the Victorian forms are for state purposes only. However, a Victorian statutory declaration may be accepted in federal proceedings if it complies with state law, but that is a matter of evidence law, not these Regulations. The Regulations also prescribe forms for certified copies, which interact with the Evidence Act 2008 (Vic) provisions on the admissibility of copies. The requirement to use specific wording may affect the evidentiary weight of a copy. Finally, the Subordinate Legislation Act 1994 governs the sunset clause: the Regulations expire on 10 October 2028 unless remade. This creates an automatic review mechanism.

Only one amendment has been made to these Regulations: the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Amendment Regulations 2019, S.R. No. 4/2019, made on 5 February 2019 and commencing on 1 March 2019 (the same date as the principal Regulations). The amendment did two things. First, it inserted new regulation 5(2)(e), which adds a class of prescribed authorised affidavit takers: persons employed under Part 3 of the Public Administration Act 2004 with a classification level of 2 or 3, however described, but only when acting in the course of their duties in relation to a court or tribunal. This was evidently intended to permit court and tribunal registry staff (who may be at lower classification levels than the standard level 4) to take affidavits in the course of their work, which is a practical expansion. Second, it amended regulation 5(2)(d) to remove a reference to “the Country Fire Authority” and replace it with language referring to “officers and employees appointed or employed by the Country Fire Authority with a classification of level 7, however described.” The amendment table in the endnotes shows the change but does not explain the reason; however, the original text of regulation 5(2)(d) (as made) likely had a different description that needed updating, perhaps due to a change in the CFA’s structure or classification system. The amendment also confirms the version history: the principal Regulations were made on 10 October 2018 and commenced 1 March 2019. The table of amendments shows only this one instrument. There are no amendments not in operation at the date of publication (the endnotes state “None”). This suggests the Regulations are stable and have not been significantly altered since their commencement. However, given that they sunset in 2028, further amendments may be made before then, particularly if the Act is amended or if there are changes to the classification systems of the various agencies. The fact that only one minor amendment was needed in the first year indicates that the original drafting was reasonably complete, but also that the Regulations are relatively narrow in scope.

The source document contains no references to any court cases or tribunal decisions involving these Regulations. This is not surprising for a subordinate instrument that is essentially procedural. The Regulations are only a few years old (commenced in 2019) and have not been subject to judicial consideration in any reported decision as far as the source indicates. The endnotes have no entries in the “Explanatory details” section. The Regulations themselves do not create rights or impose direct penalties; they prescribe forms and classes of persons. Disputes are more likely to arise under the Act (e.g., whether a person is validly authorised, or whether a document is admissible) rather than under the Regulations per se. Nevertheless, if a court were to consider the validity of an affidavit or statutory declaration, it would need to examine whether the form and procedures complied with the Regulations. For example, if an affidavit used a form that omitted the perjury warning, or if the authorised taker’s classification was not correctly stated, a court might find the affidavit defective. There are no known cases where this has been litigated, but the risk exists. The requirement that the prescribed words be said “aloud” (regulations 8 and 9(2)) could theoretically be challenged if a deponent mumbles or is not heard, but that is unlikely to reach litigation. The Regulations also include the option for “reasonable modifications” in making a statutory declaration (Schedule 3), which is a reference to the Act’s provisions on accessibility; no cases have tested what constitutes reasonable modifications. The lack of litigation history means that the Regulations have not been clarified by judicial interpretation, which creates some uncertainty for practitioners. They must follow the literal text. This is a typical situation for procedural regulations that are rarely tested in court, but it also means that any ambiguity (such as the “insufficient space on the first page” provision for certified copies) has not been resolved. The absence of litigation does not mean the Regulations are immune to challenge; it may simply reflect that parties prefer to rectify non-compliance rather than fight in court, given the cost.

Several features of the Regulations can trap the unwary practitioner or deponent. First, the requirement that the prescribed words be said aloud: regulation 8 says the deponent must “swear or affirm aloud” the words in Schedule 2, and regulation 9(2) says the person must “say aloud” the words in Schedule 4. This is mandatory. If the deponent merely signs without speaking, or whispers inaudibly, the document may be invalid. The authorised person should ensure the words are audibly spoken. Second, the form for affidavits in Schedule 1 includes a line: “*delete if not applicable” next to “A person authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.” This is confusing: it appears to be a note to the drafter of the form, not an instruction for use. The form itself is a template; the authorised taker should not delete that line - it is the statement of authority. The asterisk may indicate a footnote, but the schedule does not explain it. This is a drafting infelicity that could cause confusion. Third, the statutory declaration form in Schedule 3 includes an optional box for confirming reasonable modifications. The box is to be “delete if not applicable.” If a witness does not delete it when it does not apply, the form might still be valid, but it could raise questions about whether modifications were used. It is safer to delete or leave blank? The instruction says delete, but the form is prescribed; deleting an inapplicable box changes the form. A cautious practitioner should physically strike through the box if not used. Fourth, the requirement that the authorised person’s “personal or professional address” be in “legible writing, typing or stamp” (Schedules 1 and 3) means that a stamp with a PO Box might not be sufficient if it does not include a street address. The Regulations do not specify “personal” vs “professional”; a witness could use their work address, but it must be legible. Fifth, for certified copies, the prescribed words must be on the first page “unless there is insufficient space on the first page” (regulations 10(2), 11(2)). This creates a grey area: what constitutes insufficient space? If the first page is full of text, the certifier may place the words on the second page, but the regulation does not say exactly where (e.g., top of second page?). There is a risk that a court might reject a copy if the certification is not on the first page without explanation. Sixth, the classification thresholds differ between affidavit takers (level 4 or above, except court staff at level 2/3) and statutory declaration witnesses (level 2 or above). A person who is a level 2 public servant may witness a statutory declaration but cannot take an affidavit unless they are in a court or tribunal. This is a common trap: a level 2 employee might mistakenly believe they can take an affidavit. Seventh, the definition of “public service employee” ties to the Public Administration Act 2004, but employees of state-owned entities like VicRoads or the Transport Accident Commission are not public service employees; they have their own classification definitions. Each agency’s classification may differ: “level 4” in one agency may not equate to “level 4” in another. The Regulations say “or equivalent, however described,” which is imprecise. A person who is a “band 2” in the TAC might not be equivalent to a level 4 public servant. This creates uncertainty for employers and employees. Eighth, the sunset date: 10 October 2028. After that, the Regulations cease to operate, and unless new regulations are made, there will be no prescribed forms, which would cause chaos. Practitioners should watch for replacement regulations before that date.

Compliance requires careful attention to the prescribed forms and procedures. For an affidavit: (1) Use the form in Schedule 1 exactly - ensure the deponent’s full name, address, and occupation (or “child” if applicable) are stated, and that the statement is in numbered paragraphs. (2) Include the perjury warning as printed. (3) The deponent must sign in the presence of an authorised affidavit taker of the correct classification (regulation 5). (4) Before signing, the deponent must speak aloud the prescribed oath or affirmation from Schedule 2; if a child or cognitively impaired person, use the promise form. (5) The authorised taker must then sign, date, and print their name, capacity (e.g., “Public Service Employee Level 4”), and personal or professional address in legible writing, typing, or stamp. (6) The taker should also confirm that the deponent is who they claim to be and is of sound mind. (7) Ensure that the taker is authorised at the time - check classification and that they are not disqualified. For a statutory declaration: (1) Use Schedule 3 form; include name, address, occupation, numbered paragraphs, and the offence warning. (2) The declarant must sign in the presence of an authorised statutory declaration witness (regulation 6). (3) The declarant must say aloud the words from Schedule 4. (4) The witness must sign, date, and print their full name and address, and state their qualification (e.g., “Public Service Employee Level 2”, “Councillor”). (5) If reasonable modifications were used (e.g., assistance for a disability), tick the box and have the witness sign that line; otherwise delete the box. (6) The witness should ensure the declarant understands the declaration, and that the signature is made in their presence. For certified copies: (1) Write or stamp “Certified to be a true copy of the original seen by me” (Schedule 5) on the first page, unless insufficient space, then on the next page. (2) The certifier must be a person authorised under the Act (usually the same classes as affidavit takers? The Regulations do not specify; the Act does). (3) For a copy of a certified copy, use Schedule 6 wording: “Certified to be a true copy of another certified true copy seen by me.” (4) The certifier should also add their signature, name, and date (not prescribed by the Regulations but good practice; the Act may require it). (5) Keep a record of the original seen. Organisational compliance: Employers should map employee classifications against the prescribed levels and ensure that only those with the correct grade are authorised to witness or take affidavits. Provide training on the prescribed words and the requirement to say them aloud. Use templates that match the schedules exactly - do not modify wording or layout. For law firms and conveyancers, ensure all staff who certify documents use the correct Schedule 5 or 6 wording. When in doubt, refer to the Act for additional requirements (e.g., who can certify); the Regulations only prescribe words and classes. Finally, note the sunset date and plan for renewal or alternative arrangements before 10 October 2028.