Oaths and Affirmations Bill 2017

Debate resumed from 15 December 2017; motion of Mr JENNINGS (Special Minister of State).

Mr RICH-PHILLIPS (South Eastern Metropolitan) (10:17:06) — This is a bit like groundhog day, starting out on oaths and affirmations again. I think we first contemplated doing this back in September — it was listed as one of the government's priorities on the bills list — and it sort of bubbled along the list in September, we got started on it in December and now we are back for a third time. We may progress a little bit further with the bill in today's consideration.

The Oaths and Affirmations Bill 2017 is an important piece of legislation. It seeks to bring together in one statutory framework the provisions relating to the making of oaths and affirmations, affidavits, statutory declarations and the certification of documents. These are matters with which many members of Parliament will be familiar. In fact one of the key roles that members of Parliament are called on to perform in the community is receiving affidavits and witnessing statutory declarations and other instruments for the community. It is in many respects one of the bread and butter elements of the role of a member of Parliament.

It is an area of responsibility for a member of Parliament of which they, from time to time, have had a limited understanding because the framework in which those affidavits are received, statutory declarations are made or certified copies of things are witnessed has been dispersed through the statute book, has been dispersed in court practice and common law and has varied widely between the different types of instruments under consideration.

It is true and it should be recognised that oaths and affirmations and the instruments that are under consideration in this legislation are absolutely critical to the smooth operation of our legal and justice system. Where an oath is made, an affirmation is made, a statutory declaration is made or an affidavit is given, those oaths, affirmations and instruments are regarded as being fact. Their creation and the mechanism by which they are created are on the face of it taken as being factual statements, and therefore their existence and the correct making of those declarations and affirmations is incredibly important.

It is important that the community understands the significance of those instruments and oral declarations when they are made — that it is not just a casual statement made orally or a casual statement made in writing. Where it is a formal declaration or a statement made subject to an oath or affirmation, it must be an accurate, truthful statement. The veracity of that statement or declaration is incredibly important because it goes to the fundamental basis on which our legal system works: being able to rely on declarations and oaths and statements made under oath as factually correct. Therefore it is important that the community in making declarations and oaths understands the significance of making those declarations and oaths. They are not casual statements; they must be made with great consideration to the gravity of the statements that are made.

It is understood by practitioners of the law and by members of Parliament who receive those affidavits, witness declarations et cetera that where a person makes a false declaration or makes a false statement under oath or affirmation, that can amount to perjury. The making of a false declaration can lead to a person being prosecuted for perjury. But the understanding of that in the broader community is something which probably is not well understood. The gravity of making declarations and statements under oath is probably not as well understood as it needs to be.

This piece of legislation, in bringing together the framework for the making of oaths and affirmations, affidavits and statutory declarations and for the witnessing of documents, is an important step forward in consolidating in one place the statutory framework in respect of the making of instruments which are declaratory statements. Also, for the first time, introducing specific penalties related to the offence of making a false declaration is a positive step. We are stepping out of the realm of perjury, which is not well understood in the broader community. Creating a very specific statutory offence related to making false declarations and false statements under oath is an important step forward to creating the nexus between the need for truthfulness in the making of declarations and statements under oath and sending a signal to the community that it is not acceptable to make false declaration statements under oath. So the introduction of those statutory offences is I think a positive step, as is the consolidation of the provisions in a single piece of legislation.

It is important to reflect on the role that oaths play in our legal system and in our community. Of course all members of Parliament on being sworn in as members of this place are required to take an oath or make an affirmation which pledges their allegiance to the sovereign — not, I might add, the sovereign in the sense of the head of the UK government or in any way a pledge to the royal family, but the recognition of a pledge to the highest element of the government in Victoria under our constitution. While that oath or affirmation is often commented on in the context of discussion around support for constitutional monarchy or support for an Australian republic, in reality that misses the point that members of Parliament in making that oath are making an oath to support the constitutional arrangements of the state of Victoria, which of course includes the Crown at its apex, representing the sovereignty of the state of Victoria, but also the Parliament, the courts and the executive. Therefore that oath or affirmation made by members of Parliament in supporting the crown to support those institutions is incredibly important.

Likewise, ministers on being commissioned are required to make two separate oaths. One oath is with respect to carrying out their role as ministers, administering portfolios on behalf of the Crown as part of the executive, which is a very important oath because ministers are charged with administering legislation passed by this Parliament. All ministers through the general order have responsibility for the administration of certain acts of Parliament, and every act of Parliament on the statute book that we have sitting in the centre of the chamber today is the responsibility of at least one minister, ensuring that every item of statute is administered. This is a direct responsibility assigned to a minister, and they swear an oath to do that.

In parallel with that, but quite separately to that responsibility, ministers on being appointed ministers are also appointed as members of the executive council, and as executive councillors ministers swear an oath that they will respect the confidentiality of proceedings of the executive council. That is also a solemn oath that must be entered into with due consideration and respect. That is an enduring oath because ministers who are appointed as executive councillors continue to serve as members of the executive council, but not under summons, once they cease to be ministers. That oath endures even after those members cease to be ministers; they continue to be executive councillors and they continue to be bound by their oath as members of the executive council.

So those oaths are something which is very important to the functioning of those institutions on the executive government as a member of cabinet and the executive council as an executive councillor. And of course we see oaths administered in a similar way to members of the judiciary upon their appointment in making a solemn undertaking to exercise their duties and responsibilities in a fair and even-handed way and to administer the laws of the state, in the judicial sense, in the way in which they are intended.

Those oaths and affirmations by office-holders are incredibly important and incredibly significant to the exercise of the offices and to ensuring the individuals who hold those offices understand the importance and the gravity of the office they are assuming. Likewise, oaths and affirmations made by people who are giving evidence are also very significant. A person, whether they give evidence before a court or tribunal or whether they give evidence before a parliamentary proceeding or a parliamentary committee, is often required to swear an oath or affirmation. It is not absolute practice with parliamentary proceedings, but it is increasingly the practice of parliamentary proceedings that witnesses are sworn before those proceedings. That is done for the purposes of ensuring the person giving evidence understands the gravity of the proceedings in which they are participating and their obligation to give full and honest evidence in the proceedings.

It is interesting to consider the parliamentary context where until recently it has not been the general practice of parliamentary committees to require witnesses to be sworn prior to giving evidence, but that did not take away from the obligation of those witnesses to give honest, truthful and complete evidence. It was emphasised to witnesses appearing before parliamentary committees that even when they were not sworn before giving evidence, nonetheless the obligation to the Parliament existed for them to give full, truthful and accurate evidence. The subsequent administration of the oath or affirmation, which has become more common practice in recent years, does serve to emphasise the importance and the gravity of the need to do that when giving evidence. Of course that is something that has been longstanding practice with the judicial environment in this state.

Likewise with the making of declarations, be they affidavits or statutory declarations, which as I said at the outset are instruments that members of Parliament are often asked to receive or witness, one cannot overstate the need for those to be firstly correctly made but more importantly entered into with the person giving the declaration or the affidavit understanding the gravity of what they are doing and the importance of that declaration or affidavit being truthful and accurate.

I recall as a very new member of Parliament seeking to understand the responsibility of a person either receiving or witnessing a statutory declaration or receiving an affidavit and the importance of actually understanding what the person receiving the affidavit was required to do in terms of receiving that instrument. It was not simply a matter of witnessing in the sense of signing the document; it actually required the making of an oral declaration. One of the things that certainly was not the practice at the time with the Parliament was to educate new members on their responsibilities as parties witnessing declarations or receiving affidavits so they actually understood what their obligations were. For an affidavit to be correctly made there is the requirement for the oral declaration from the party making the affidavit. For that to be valid, if the validity of the affidavit is to be challenged in the future, it is important that the member of Parliament receiving it has followed the correct process in the making of that instrument.

I think that is one area where the Parliament — certainly at that time, and it has not subsequently updated its practices — could play an important role in providing advice to this Parliament on the correct form required for the making of those instruments. Of course in that regard having a new consolidated statute in the Oaths and Affirmations Act, as it will be, will be important in bringing those requirements for those various instruments into one spot where they can be more easily understood than the current spread of statute and practice which is dispersed across the statute book and takes multiple forms with respect to different declarations and instruments.

The coalition believes this piece of legislation is a positive step forward. Consolidating these provisions in a new act is a positive step. Some of the clarifications and simplifications which are created in this bill are also important, such as the provisions which allow children to make oaths by a declaration of a promise to tell the truth, so a simple language construct which should be easily understood by a child, which may not be the case with the formal wording of an oath or affirmation. That is a positive step forward. The clarification that where an oath is taken and sworn on a religious text the absence of the religious text or the use of a different religious text does not invalidate the swearing of the oath is also an important clarification in this bill. The coalition believes this is a useful step forward with the statute.

As I said at the outset, we started down this path in this place in September. We had a false start in December, and I think it is a positive step that we are now likely to see the act come into fruition with this sitting in February.

  • SHARE:
  • Email
  • Permalink