My correspondent writes ‘I realise this might be considered an industrial rather than an emergency law question …’ and that is correct, but given it applies to applies to paramedics in Victoria, my correspondent thought to ask, and I’ll have a go at an answer.

A question was raised about Nurses witnessing statutory declarations.  Paramedics are afforded permission to use stat decs as an alternative to a medical certificate for personal leave, to a greater extent than other professions.  In most cases, Police witness the declaration on a form consistent with the Victorian legislation. Nurses are not listed under Victorian legislation but under Commonwealth legislation.

Does that have significance on whether a nurse witnessed declaration is acceptable ie can an employer specify that a Victorian declaration is only suitable, thereby rendering a Commonwealth declaration void? Does the legislation determine this instead?

I’d like to understand the relationship between the two types of declarations, given I hold both the qualification of RN and Paramedic.

A statutory declaration is a form that allows a person to ‘declare’ that the contents of the declaration are true and correct.  The act of making that declaration is intended to bring home the seriousness of the declaration and to carry with it a penalty for making knowingly false declarations.  It is very important that the person witnessing the declaration understands that they are not merely ‘witnessing’ the declarant’s signature nor are they confirming that the person signing is the person named on the form.  The person authorised to ‘take’ the declaration must actually ask the person to declare that the contents are true and correct, and by adding their signature they are confirming that the declaration has been made.

Similar to a statutory declaration is an affidavit.  An affidavit is also a sworn document but it is intended to be used as evidence in court.   A false statement in an affidavit can amount to perjury.  In DPP v Marijancevic, Preece and Preece [2011] VSCA 355 police completed affidavits for the purpose of obtaining search warrants.   The document said that it was ‘sworn’ before a police inspector but the evidence revealed that ‘… the deponent [ie the person making the affidavit]  … had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits’.    The failure to swear that the contents of the affidavits were true meant that warrants were not properly issued and evidence of the accused’s guilt of serious offences contrary to the Drugs Poisons and Controlled Substances Act 1981 (Vic) was excluded.  Whilst that case was about affidavits, not statutory declarations, the lesson is the same.  People who are authorized to take a declaration must ensure that they properly ask the deponent to declare that the contents of their declaration is true and correct or they have failed in their duty and the statutory declaration is meaningless.

To now turn to the issues raised in the question.  There are indeed two pieces of legislation. They are

  1. The Statutory Declarations Act 1959 (Cth) and
  2. The Evidence (Miscellaneous Provisions) Act 1958 (Vic).

Under the Commonwealth Act, a declaration may be made before a range of people set out in Schedule 2 to the Statutory Declarations Regulations 1993 (Cth).  The list includes a registered nurse (reg 4(a) and Schedule 2).

Under the Victorian Act, the people who can take a declaration are set out in the Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 107A.  The list includes a registered medical practitioner (s 107A(1)(p)), a dentist (s 107A(1)(q) and a pharmacist (s 107A(1)(s)) but not a nurse.

A commonwealth statutory declaration ‘may be used  (a) for the purposes of a law of the Commonwealth or of a Territory…’ (Statutory Declarations Act 1959 (Cth) s 6(2)).   The Commonwealth has the power to make laws with respect to Territories (Australian Constitution s 122) but not States so we can be sure that the reference to ‘a Territory’ in s 6(2) means the Australian Capital Territory and the Northern Territory, but not Victoria.

My correspondent asks:

Does that have significance on whether a nurse witnessed declaration is acceptable ie can an employer specify that a Victorian declaration is only suitable, thereby rendering a Commonwealth declaration void? Does the legislation determine this instead?

The answer has to be ‘maybe’.  It actually depends on the law that governs leave.  If the relevant law is a commonwealth law, in particular the Fair Work Act 2009 (Cth) (see The Commonwealth setting terms and conditions of employment for Victorian fire fighters (May 20, 2015)) then the statutory declaration is being made for the purposes of a commonwealth law and a commonwealth declaration will be sufficient.  If the leave arrangements are governed by Victorian law then Victoria Ambulance would be entitled to insist that the declaration is a declaration under Victorian law, that is the Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 107.

As my correspondent originally wrote ‘I realise this might be considered an industrial rather than an emergency law question … and indeed it is.  I have explained the distinction between a Commonwealth and a Victorian statutory declaration but I can’t answer the ultimate question, can a Victorian ‘employer specify that a Victorian declaration is only suitable’ as I don’t know whether the relevant law governing the employment terms and conditions is a Victorian or Commonwealth law.  Answer that question and you have the answer to whether or not they can insist on a Victorian statutory declaration (which cannot be declared before a nurse) or whether a Commonwealth statutory declaration (which can be declared before a nurse) will suffice.

POSTSCRIPT

It should be noted that the difference between a Commonwealth and a Victorian statutory declaration is not just who can take the declaration, the forms are also different.  A nurse can’t sign a statutory declaration made on a Victorian form because the declaration is to be used for commonwealth law.  The form of each declaration is set out in the legislation:

Commonwealth Statutory Declaration (Statutory Declarations Regulation 1993 (Cth) Sch 1);

Victorian Statutory Declaration (Department of Justice and Regulation website)