The final question for today asks about

… the Oaths and Affirmations Act 2018 (VIc) specifically section 30 and who is an authorised witness.

I know there has been some discussion amongst my fellow colleagues around the interpretation of

Permanent employee with 5 or more years of continuous service who is not otherwise specified, if employed at one of the following:

State

Territory

State authority

Territory authority

Local government authority

The questions are:

  • Does a paramedic or staff member of Ambulance Victoria who has been employed on a permanent basis for longer than 5 years meet this criteria?
  • Are paramedics or staff members of Ambulance Victoria able to certify documents or witness statutory declaration?

I rang the Department of Justice and they actually could not give me an answer.

I have answered a similar question for members of the Victoria SES – see Can members of Victoria’s emergency service administer oaths and declarations? (March 19, 2019).  In that post I noted that there is both Commonwealth and Victorian law on this subject.

To understand who can make a statutory declaration under Victorian law one needs to look at the Oaths and Affirmations Act 2018 (Vic) and the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic). The Act, s 19, lists who can take an affidavit.  That list includes ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ and ‘any prescribed person or person who is a member of a prescribed class of persons’.

To see who is ‘prescribed’ we look to the regulations.   Regulation 5 says that authorised affidavit takers include a ‘a public service employee with a classification of level 2 or equivalent or above, however described’.

A person authorised to take a statutory declaration includes an ‘authorised affidavit taker’ as well as ‘a person authorised by or under a Commonwealth Act to take a statutory declaration under that Commonwealth Act’ (s 30). The Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2 cl 31 says that, amongst others, a person authorised to take a statutory declaration includes

Permanent employee of:

(a) a State or Territory or a State or Territory authority…

with 5 or more years of continuous service…

A number of registered health professionals including Chiropractors, Dentists, Medical practitioners, Midwives, Nurses, Occupational therapists, Optometrists, Pharmacists, Physiotherapists and Psychologists can take statutory declarations (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 1) but paramedics have not yet been added to that list.

So paramedics can witness statutory declarations or take affidavits in Victoria if they are ‘a permanent employee of a State or Territory or a State or Territory authority…with 5 or more years of continuous service’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31), ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ (Oaths and Affirmations Act 2018 (Vic) s 19) or ‘a public service employee with a classification of level 2 or equivalent or above’ (Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic) r 5).

Paramedics, although registered health professionals do not meet any of those definitions by virtue of their registration. It follows that paramedics, per se, are not authorised to take affidavits or statutory declarations, but what about those paramedics that are employed by Ambulance Victoria?

Ambulance Victoria is established by the Ambulance Services Act 1986 (Vic), in fact there are a number of ambulance services (Schedule 1) that collectively are known as ‘Ambulance Victoria’ (s 3).  Each ambulance service has a board (s 17).  An ambulance service created under the Act (s 23(2)):

(a) is a body corporate having perpetual succession;

(b) is capable of acquiring, holding and disposing of property;

(c) is capable of suing and being sued;

(d) is to have a common seal;

(e) is to be governed by a board of directors;

(f) is capable of doing and suffering all acts and things that bodies corporate may by law do or suffer.

Each ambulance service is therefore a separate legal entity – separate from each other and from the government of Victoria. The ambulance services are however ‘public entities’ for the purposes of the Public Administration Act 2004 (Vic). The public service is made up of people employed under Part 3 in Public Service Bodies.  Ambulance services may be public entities but they are not public service bodies. Employees may be transferred between public service bodies and public service entities (s 28) but that does not make them the same thing.  Part 5 of the Act deals with public entities again confirming that public entities and public service bodies are not the same thing and by inference, employees of public entities are not employees of the public service.

I would infer therefore, that an employee of Ambulance Victoria is an employee of a public entity but is not ‘‘a person employed under Part 3 of the Public Administration Act 2004…’ or ‘a public service employee …’.

Are they a ‘permanent employee of a State or Territory or a State or Territory authority’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31)?  I would suggest they are not an employee of the State as each ambulance service is its own separate legal entity.   What is a ‘state or territory authority’ is not defined in the Commonwealth Act or regulation.  A Commonwealth authority (r 5) includes ‘Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013’.  As noted, the various ambulance services that make up Ambulance Victoria are ‘public entities’ so by analogy, they would be a ‘state authority’.

As noted in my earlier post, affidavits and statutory declarations are important and it is more than just witnessing a person’s signature. Because of their importance it is an offence to take affidavit if not authorised affidavit taker (Oaths and Affirmations Act 2018 (Vic) s 22) and it is an offence to take statutory declaration if not statutory declaration witness (s 31). Who would want to risk that on the basis that they will, if prosecuted, argue that Ambulance Victoria is a ‘public authority’?

It’s not surprising that the Department of Justice could not give an answer as they wouldn’t know the answer to questions about paramedic employment or the status of Ambulance Victoria.

Conclusion

In the absence of a definition of ‘state or territory authority’ in either the Statutory Declarations Act 1959 (Cth)  or the Statutory Declarations Regulations 2018 (Cth) the cautious answer has to be that an employee of Ambulance Victoria is not an authorised affidavit taker or statutory declaration witness and are not, therefore, authorised certifiers authorise to certify copies of documents (Oaths And Affirmations Act 2018 (Vic) s 39).

That advice should be tested with your local HR officials and/or the Victorian Public Sector Commission to confirm paramedics are not employed under Part 3 of the Public Administration Act 2004 (Vic).

Subject to that specialist advice on employment status, my view is that paramedics, simply by virtue of their registration, as well as paramedics who are staff members of Ambulance Victoria are not able to certify documents or witness statutory declarations in Victoria.

POSTSCRIPT

After writing this post my correspondent replied with:

AV’s website mentions the following.

Our Governance
Ambulance Victoria is a statutory authority which operates under the Ambulance Services Act (1986). We report to the Minister for Health and Ambulance Services through the Department of Health and Human Services, and are governed through a Board of Directors appointed by the Governor in Council

Also the AV Annual report 2019 mentions

AV is a statutory authority required by the Ambulance Services Act 1986 to …

I also note than an Ombudsmen Investigation states

The Ombudsman’s jurisdiction includes investigating complaints about administrative actions taken by or in an authority. The meaning of ‘authority’ for the purposes of the Act includes a public statutory body, established by or under an Act for a public purpose.3 AV falls within this definition.

So, I guess my next question would be does a Statutory Authority equal a State Authority within the context of the Oaths and Affirmations Act 2018?

First the question should be ‘does a Statutory Authority equal a State Authority within the context of the Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2 cl 31?’  The Victorian Act says that a person can witness a statutory declaration if they are authorised to witness a declaration by the Commonwealth law (s 30(2)(c)). It is the Commonwealth law that refers to a ‘Permanent employee of … a State or Territory authority… with 5 or more years of continuous service…’.  The question is therefore what does a ‘State or Territory authority’ mean in Commonwealth not State law.

What has been set out above and in my post are arguments. That is how law works, often there is not a clear answer.  It would be clear that paramedics could witness a statutory declaration if they were listed as members of a profession that could witness a declaration in the way Medical Practitioners and Nurses are; but they are not.  Equally it might be clear if the term ‘State or Territory authority’ was defined; but it is not.  So all one can do is look for arguments and analogies to try and guess what we think the term means.

Why is that relevant? It’s relevant in this context because of the importance of statutory declarations. Assume someone signs a false statutory declaration and there is an attempt to prosecute that person. And they say they are ‘not guilty’ as the person who took the declaration – a Victorian Paramedic – was not authorised to witness the declaration. If that succeeds the person may be acquitted even if they have behaved badly. And the authorities may decide to prosecute the paramedic for an offence contrary to s 31.

The risk is probably very low. When has anyone (former judge Marcus Einfeld excepted) been prosecuted for swearing a false declaration?  And an offence under s 31 requires the person to witness a statutory declaration knowing they are not authorised to do so, and one could argue that a paramedic, based on the sort of arguments above, believed they were (or at least did not know they were not) authorised.   So one might think the risk is very, very low and indeed it is.

But when taking risks one has to weigh up the potential cost v the benefit and that leads me to ask my correspondent ‘why do you care?’ or more usefully ‘why do you want to witness statutory declarations or certify copies of documents?’  If you don’t have to do it, and I assume it’s not part of the job description of an AV paramedic, and it’s not clear that you can do it, why would you bother?  If you want to do it, become a JP.

As I said in my conclusion:

In the absence of a definition of ‘state or territory authority’ in either the Statutory Declarations Act 1959 (Cth)  or the Statutory Declarations Regulations 2018 (Cth) the cautious answer has to be that an employee of Ambulance Victoria is not an authorised affidavit taker or statutory declaration witness and are not, therefore, authorised certifiers authorise to certify copies of documents (Oaths And Affirmations Act 2018 (Vic) s 39).

That’s a cautious answer because I don’t understand any reason not to be cautious. There is a risk (albeit very small) balanced against what benefit?

But as my correspondent has noted there are arguments that AV is a ‘state authority’.  Personally, I think those arguments are persuasive, I’m pretty sure that AV would be a state authority but is that good enough to act in these circumstances?  I’m certainly not prepared to say AV is a state authority so my advice to a paramedic would be ‘don’t to it’.

As for getting a definition what one needs is a legal definition ie in legislation or from a judge. Asking a government department, such as the Commonwealth’s Attorney General just gets another opinion. What the public servant who answers the ‘phone thinks is not the law, just their opinion just like what you read here is mine and just like, if my correspondent concludes that AV is a state authority that is theirs. It’s the opinion of a judge that matters in the (very) unlikely event of a prosecution.