An affidavit is a written statement made by a person (the deponent) who swears an oath or makes an affirmation, before an authorised witness, that the contents of the statement are truthful. Taking an affidavit is also called 'witnessing' or 'administering' an affidavit.
An affidavit is a form of sworn evidence that can be used in court proceedings and for other purposes authorised by law. An affidavit can serve to set out a person's own account of relevant events in numbered paragraphs or to collect a handful of exhibits together for ease of handling or reference.
Any person, whether an adult or a child, may make an affidavit but, to swear an oath or make an affirmation, they must have capacity to understand the nature of an oath or affirmation. That is, they must be able to understand that they are making a legal promise to tell the truth, and that being untruthful in an affidavit is an offence. If they do not appear capable of understanding these matters, an authorised witness must refuse to administer the oath or affirmation. 39
JPs are authorised affidavit takers. 40 A full list of all prescribed affidavit takers can be found on the department’s website at www.justice.vic.gov.au.
There is a prescribed form of affidavit. 41 However, courts and tribunals (where affidavits are used most commonly) are allowed to use their rules to customise the contents of particular affidavits to suit their requirements.
An Australian consular officer, certain local employees of the Commonwealth in overseas locations, and employees of the Australian Trade and Investment Commission are authorised to take affidavits in any place out of Victoria for use within Victoria, as well as any person having authority to administer an oath or affirmation in a place outside of Victoria.
If an affidavit can or must be taken by a JP or BJ, then it can be taken by a JP or BJ outside of Victoria, for use in Victoria. 42
If a person lies in an affidavit they can be charged with perjury. This offence has a maximum penalty of 15 years imprisonment.
The deponent must be in your presence.
The deponent must:
* The form of certificate needed for exhibits does not have to comply with the certification provisions in the Oaths and Affirmations Act 2018.
The jurat will usually take the following form:
Sworn/Affirmed at [place] in the State of Victoria, on [date].
[signature of person swearing or affirming the affidavit contents, to be signed in front of the authorised affidavit taker]
Before me, _______________ [your signature]
on [date]
Print or stamp your name, title and address
Note: A person authorised under section 19(1) of the Oaths and Affirmations Act 2018 is to take an affidavit.
If a person appears to be illiterate, blind or has a cognitive impairment, you may read the affidavit to the deponent, but you must certify in or below the jurat that you read the affidavit to the deponent. 44
This is a form of certification you might use:
I certify that I read the affidavit to the deponent because it appeared to me that they are illiterate/blind/have a cognitive impairment.
You may also make modifications to the form of the oath or affirmation as outlined further in this section.
An oath is a solemn promise made before a god, recognised by the deponent’s religion, to tell the truth.
An affirmation is a solemn promise to tell the truth (without reference to a god). Both an oath and an affirmation have equal value and the same effect.
You must inform the deponent that they have a choice between taking an oath or making an affirmation, unless you are satisfied that the deponent already knows they have a choice.
A person may use a religious text (such as the Bible or Koran) in taking an oath but is not required to do so. An oath is effective even if the person who takes it does not have a religious belief or a religious belief of a particular kind and a person may take an oath even if their religious or spiritual beliefs do not include a belief in the existence of a god. 45
You may direct a person to make an affirmation if the person refuses to choose whether to take an oath or make an affirmation or it is not reasonably practicable for the person to take an appropriate oath.
The form of oath or affirmation to be used when a person takes an affidavit is in accordance with the form of Schedule 1 of the Oaths and Affirmations Act 2018 or a similar form unless a different form is specified in another Act or by convention or otherwise. 46
| Prescribed words: | |
|---|---|
| Oaths | I, [name of person making oath], swear [or promise] by Almighty God [or name of a god recognised by the person’s religion] that the contents of this affidavit are true and correct. |
| Affirmations | I, [name of person making affirmation], solemnly and sincerely affirm that the contents of this affidavit are true and correct. |
| For a child or deponent with cognitive impairment | I, [name of person making the promise], promise that I have told the truth in this affidavit, and it is correct. |
There is no prescribed form of words for use when there are exhibits attached to an affidavit, but you could use the following:
I, [name of person making oath], swear [or promise] by Almighty God [or the person may name a god recognised by the person’s religion] that the contents of this affidavit are true and correct and these are the exhibits referred to in the affidavit.
I, [name of person making affirmation], solemnly and sincerely affirm that the contents of this affidavit are true and correct and these are the exhibits referred to in the affidavit.
A child or a person with a cognitive impairment may make a promise to tell the truth and can make an affidavit provided they have legal 'capacity' to do so. That is, they must be able to understand that they are making a legal promise to tell the truth, and that being untruthful under oath or affirmation is an offence.
If a person is able to understand that they are making a legal promise to tell the truth, and that being untruthful in an affidavit is an offence, they can make an affidavit.
You may make reasonable modifications for a person living with disability (such as vision impairment, physical disability, or intellectual disability) that would prevent them from reciting an oath or affirmation in the prescribed way. For example, a hearing-impaired person may read and sign an oath or affirmation instead of saying it aloud or a person who is unable to speak may be able to listen to an oath or affirmation being read and nod assent.
If the deponent needs an interpreter to make an affidavit for legal proceedings, you should require the interpreter to swear an oath or make an affirmation that they accurately translated the contents of the affidavit and the jurat from English into the deponent’s language.
You will find information about the use of interpreters in the Cultural and Linguistic Diversity section of this Handbook.
A person making an oath or affirmation for an affidavit must say the prescribed words aloud. They may repeat the words after the authorised affidavit taker has spoken or read them from a card. It is not sufficient (unless reasonable modifications are made for people living with disability) to simply answer yes to questions such as ‘Are the statements made in this affidavit true, and correct?’
You must refuse to take an oath or affirmation if it appears to you that, for whatever reason, the person taking the oath or making the affirmation is unable to understand the nature of the oath. 47
Multiple affidavits can be sworn simultaneously. The affidavits are placed side by side and the oath you administer is modified:
I, [name of person making oath], swear [or promise] by Almighty God [or name of a god recognised by the person’s religion] that the contents of my affidavits are true and correct.
I, [name of person making affirmation], solemnly and sincerely affirm that the contents of these affidavits are true and correct.
There are two ways to witness an affidavit made by two or more deponents:
Sworn/affirmed at [place] in the State of Victoria
on [date]
by _____________________the above-named deponents.
Before me ____________________.
You may also deal with affidavits that can be “jointly and severally” signed.
Sometimes alterations are made to affidavits, and you will be asked to witness an amended affidavit. In addition to signing each page of the affidavit, you should sign (or initial) and date next to any alterations or additions. The affidavit must be sworn or affirmed again. A new jurat for the amended affidavit should acknowledge that it has been re-sworn or re-affirmed.
If a person makes a small, insignificant mistake the affidavit may still be valid. 48 Failing to make the oral oath or affirmation is not inadvertent non-compliance and will invalidate an affidavit.
You must not request, require, or accept payment of a fee for administering an oath or affirmation for an affidavit or signing an affidavit. It is an offence punishable by 10 penalty units.
The only exception is for public notaries, who are permitted to charge a fee for their services when taking affidavits intended solely for use outside of Australia. It is not an offence for a person, such as a legal practitioner, to charge for preparing or drafting the contents of an affidavit. 49 Please refer to the full Schedule of Offences in Section 25.4.
As a JP, it is your duty is to administer the oath or affirmation regardless of your own beliefs. It is the person’s choice to take an oath or affirmation as required by law.