Oaths and Affirmations Bill 2017

September 20, 2017

Second reading

I rise to make a contribution on the Oaths and Affirmations Bill 2017.

This bill brought before this house will modernise laws in our state dealing with oaths, affirmations, affidavits and statutory declarations, and provide a scheme for certification of copy documents.

That is something we have not had in this state before, so it will now be legislated for.

The list of people who can take these declarations, make affidavits and the like has been extended, and that will considerably lift the burden on those who are currently authorised to do it.

I think all of us as MPs know that there is an associated burden with it at times. As a practising lawyer all my life I have witnessed many, many documents over time, and so I am very well aware of the importance of legislation such as this to regulate how it is done and who does it and to increase the gravity of the situation in relation to people's understanding of the importance of signing documents.

There has been broad consultation over time in the development of this legislation, I am told. I know as a member of the Law Institute of Victoria that whenever laws like this get changed we are briefed at length on our obligations as lawyers in terms of how we take oaths, affidavits and the like from people and on making sure that we have the flexibility to deal with people who may be challenged in many ways. An example from recent years — and I suppose it would be fair to say over quite a long time — was when as a family lawyer I was preparing a lengthy affidavit for someone in relation to a court case that was coming up. You can spend hours with someone in that situation — in obtaining the evidence from them and preparing the affidavit — and on the day of signing, the client comes into your office, you hand them the affidavits and say, 'Now, read through this carefully, and then we'll swear it', and you get looked at and the person confides in you then and there that they cannot read.

That has been quite a surprising thing for me. People have successfully run farms and businesses and operated in our community but have not actually had the literacy to be able to read a document that contains all their life story — their evidence. Of course in those situations we are obliged to read the document to them carefully and sign them up with an indication that the document was read to them and they appeared to understand it, and then they swear on the Bible that it is true and correct. There were lots of instances of that. Similarly, with blind people the same applies.

The importance of these documents and the gravity that is associated with them is always impressed on lawyers, and it is most important that the broader community, with these lists of people who are going to be able to engage in taking affidavits, statutory declarations and the like, also understand the importance. It is fair to say, given we have seen many instances of fraud over time, that the importance of that cannot be exaggerated. I think about the case of Garcia many years ago, a family law case, which went to the High Court. A wife had been found to be liable under a mortgage, and as it turned out her signature had been forged by her husband on the mortgage document. After that, banks introduced what they call a solicitor's certificate so that when a person is signing a mortgage they must take the documents and various disclosure statements to a solicitor, have the documents explained to them and both sign in the presence of a solicitor so that the element of fraud is removed.

I cannot tell you how many times people have come into my office not wanting to have their partner there to sign a document but simply wanting to be able to take it home — 'I'll sign now in front of you, and I'll take it home and she can sign it later'. Similarly, with other important documents — such as a document that clearly states, 'This document must be signed in the presence of' — they have already signed the document and they come in and want you to sign it even though you have not witnessed them signing it. It is important they understand that they must sign it in front of you, that that is actually a part of your job and that it is avoiding fraud if you allow that to happen. Often with wills, and particularly with elderly people, family would come in and want you to prepare a will for an elderly person saying that they would take it home and get the testator to sign it. It is just an absolute no-no in a legal practice to allow that to happen, because again there is so much opportunity for elder abuse and fraud. There are many amendments in this legislation that will improve the outcomes.

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  • Suzanna Sheed
    published this page in Parliament 2018-08-30 13:48:03 +1000