The Law Handbook 2024

28 Section 1: Understanding our laws and courts Affidavits Affidavits are sworn documents that are mostly used in legal proceedings. Affidavits are made in writing, and must be clearly legible. A person making an affidavit must take an oath on the Bible (or other religious book), or make an affirmation, that the contents are true and correct, in the presence of a person who is authorised to receive affidavits (see ‘Witnessing legal documents’, below). Note that: • the position of Commissioner for taking Affidavits was abolished in Victoria in 1990; • no fees are payable for witnessing documents (except as a public notary, see ‘Public notaries’, below); • affidavits may be signed and/or witnessed by electronic means. Affidavits for use in an Australian court exercising federal jurisdiction may be sworn before any justice of the peace, bail justice, public notary or lawyer. Depending on the purpose of the affidavit, other classes of people (i.e. other professions) may be able to witness affidavits. In Family Court matters, the list of suitable witnesses differs from state to state. Check with the Family Court registry (see ‘Contacts’ at the end of this chapter) or see the list of expert witnesses at www.fcfcoa.gov.au/fl/pubs/expert-witnesses . Witnessing legal documents To have legal force, a document (e.g. a statutory declaration) must be witnessed by a person authorised to do so under state or Commonwealth law. Except for those who have been specifically appointed to witness documents (i.e. justices of the peace and bail justices), people in various occupations are authorised by the Oaths and Affirmations Act 2018 (Vic) to witness documents for use in Victoria. A list of authorised witnesses is available on the Victorian Government Department of Justice and Community Safety’s website (www.justice.vic.gov.au) . Also, standard statutory declaration forms usually include a list of approved witnesses. The requirements for witnessing statutory declarations or receiving affidavits vary according to where the document is to be used, so it is important to check the requirements of the relevant jurisdiction before having a document witnessed. A statutory declaration or affidavit can be signed and/or witnessed electronically. Honorary justices (justices of the peace) Justices of the peace – who, together with bail justices, are known as honorary justices – are regulated by the laws of the state or territory that appoints them. In Victoria, the appointment of honorary justices is regulated by the Honorary Justices Act 2014 (Vic) (s 7). Honorary justices in Victoria have the power to witness a range of legal documents, including statutory declarations and affidavits, and to certify true copies of documents. They can witness interstate and international documents. Honorary justices cannot charge for witnessing documents. Victorian honorary justices no longer have the power to sit as magistrates to hear minor offences, to conduct committal proceedings, to issue search warrants, or to perform marriage ceremonies. It is an offence punishable by imprisonment to pretend to be a honorary justice. To find an honorary justice, contact the Honorary Justice Office (see ‘Contacts’, below). Bail justices Bail justices can witness certain documents under the Oaths and Affirmations Act 2018 (Vic) (e.g. statutory declarations and affidavits for use within Victoria). Bail justices are lay people appointed by the Attorney- General under the Magistrates’ Court Act 1989 (Vic) (s 120A). They do not charge fees. Public notaries Notaries are senior legal practitioners who authent­ icate, prepare, attest, witness and certify original and copies of legal documents for use overseas. They certify documents originating in Australia and verify their validity under our laws. Under the Hague Convention (1899, 1907) , the office and seal of a notary is internationally recognised. Fees are charged for these services. Under the Public Notaries Act 2001 (Vic), notaries are appointed by the chief justice of the Supreme Court. To find a notary in your area, contact the Law Institute of Victoria (see ‘Contacts’, below).