The new Oaths and Affirmations Act 2018 (Vic) (the Act) is set to come into operation on 1 March 2019. The Act updates the processes and requirements regarding oaths, affirmations, affidavits, statutory declarations and certification of documents.
Given that most Victorians will at some stage need to make a statutory declaration or be required to provide a certified copy of an original document to a government authority or a business, it is critical that the new scheme is understood and complied with. This article focuses on Part 5 of the Act which establishes the process for certifying copies of documents.
Many administrative and legal processes require documents which provide evidence of identity, residence, qualifications, authorities and other particulars. Often it is not practicable to furnish an original document so organisations generally accept a certified copy of the original document. The new laws are designed to increase confidence in the integrity of certified documents by clearly setting out certification requirements and introducing related offences.
Who is authorised to certify a copy of a document? (s. 39 of the Act)
- An authorised affidavit taker in Victoria (see s.19 of the Act). This list has not fundamentally changed
- An authorised Statutory Declaration taker listed in s. 30 of the Act. This list has expanded considerably to include persons authorised to take statutory declarations under a Commonwealth Act as well. The Statutory Declarations Regulations 2018 (Cth) includes a greater number of professionals, including full time or part time teachers at a school or tertiary education institution and nurses, engineers, occupational therapists, financial advisors, financial planners, bank officers and others.
- A person authorised or required by or under any other Act in relation to a document under that Act
- Any other prescribed person or member of a prescribed class of persons
Steps required in certifying documents (Sections 41, 42 & 43 of the Act)
An authorised certifier is required to:
- inspect the original document to ensure that it is an original
- inspect the copy to ensure it is an identical copy of the original
- write legibly or stamp the copy with the prescribed words, “I certify that this is a true and complete copy of the original”
- sign and date the copy
- write legibly or stamp the copy with the name, qualification and address (personal or professional) of the certifier
Where the copy of the document to be certified contains multiple pages an authorised certifier need only write/stamp the prescribed words, sign, date, provide address and profession on one of the pages but is required to:
- sign or initial each page of the copy; and
- number each page of the copy (example: Page 1 of 15)
Certifying a copy of a certified copy of a document
The above steps also apply to certifying a copy of a certified copy. The certifier must ensure that the certified copy is an original certified copy, its copy is identical to the certified copy and ensuring that the prescribed wording reflects the nature of the certification, “This is a true and complete copy of the original certified copy”.
What if the document is not in English?
As long as the authorised certifier is of the opinion that the copy and the original documents are identical, he or she may certify a document in accordance with the legislative requirements outlined above.
What if the certifier has failed to comply with the certification requirements?
Minor non-compliance with the certification requirements will not automatically invalidate a certified document provided that it does not substantively affect the nature of the certification. Missing pages would unlikely be considered a minor non-compliance whereas, missing a signature on a consecutively numbered document may be considered a minor non-compliance; only time will tell.
The Act introduces a number of offences in relation to certification. A person must not:
- present a document for certification as a true copy of the original if he or she knows that the copy is not a copy of that original document;
- certify a copy of an original document if he or she knows that the purported original document is not in fact an original or that the purported true copy is not in fact a true copy of the original; and
- knowingly make a false or misleading statement as to the circumstances of the making of the certification of a copy of a document or a document purporting to be a certified true copy of a document.
The first 2 offences attract 600 penalty units (currently $96,714) or imprisonment for 5 years or both and the third offence attracts 10 penalty units (currently $1,611.90).
It should be noted that although the Act establishes a scheme for certification of documents generally, it does not apply to certification requirements under any other Act unless it is expressly applied under that Act. The requirements for certifying Power of Attorney documents, for example, must continue to be met in accordance with the provisions of the Powers of Attorney Act 2014 (Vic). Certification of Powers of Attorney requires different wording for the certification on the last page from the certification on all preceding pages of the Power of Attorney.