COVID-19 and the temporary amendments to the Oaths and Affirmations Act (Vic) 2018

With onerous social distancing restrictions imposed by federal and state governments as a response to the COVID-19 pandemic, many practitioners have had to grapple with the logistics of being able to issue and/or persist with court proceedings and relevant legislative requirements, whilst ensuring they remain compliant with the new wave of measures imposed to reduce the spread of the virus.

Although most courts have published various updates on the response taken by them to the COVID-19 pandemic, clear guidance can be now be found in the COVID-10 Omnibus (Emergency Measures) Act 2020 which commenced on 25 April 2020 (‘the Act’).

The purpose of the Act, as outlined in Part 1 Section 1, is to:

temporarily amend certain Acts, and to temporarily empower the making of regulations, to modify the application of the law of Victoria in certain respects for the purpose of responding to the COVID-19 pandemic.

Amendments to the Oaths and Affirmations Act (Vic) 2018

Although many amendments to various pieces of legislation are found within the Act, relevant to many practitioners (and self-represented litigants) are the amendments to the Oaths and Affirmations Act (Vic) 2018 (‘the OA Act’).

Section 39 of the Act temporarily inserts a new ‘Part 5A’ into the OA Act which provides that:

1. Deponents or authorised affidavit takers may sign or initial an affidavit, jurat or other documents by electronic means, such as an electronic signature (section 49B);
2. The requirement that a thing be done in the presence of another may now be satisfied by audio link or audio visual link, adopting the same definitions as the in the Evidence (Miscellaneous Provisions Act) 1958 (section 49C). This definition generally covers all things used by practitioners such as ‘Zoom’ or ‘Webex’;
3. The requirement that an authorised affidavit taker sign or initial the original copy of an affidavit, jurat or other document may be satisfied by signing or initially a scanned hard copy or electronic copy of the document (section 49D).

It is important to note that section 49E of the Act requires that if a thing is done electronically or by means of audio link or audio visual link, the relevant document must state clearly the means by which it was undertaken (i.e. by video link, a scanned copy or with an electronic signature).

The Act also gives a court discretion to admit a purported affidavit if they are satisfied that:

1. compliance with the requirements of the OA Act, including the abovementioned modifications to same, was not practicable; and
2. if the purported affidavit states why compliance was not reasonably practical (section 49F).

We recommend reviewing the updates on the individual court websites for further information published in respect of changes in their operations during the COVID-19 pandemic. Many courts have made additional allowances to those stipulated in the Act, to assist parties with the conduct of their proceedings. An example of this is the Magistrates’ Court of Victoria allowing for personal service in civil proceedings to be effected by registered post.

The Law Institute of Victoria has a webpage dedicated to the various court operations during the COVID-19 pandemic, which serves as a helpful resource for practitioners and litigants and can be accessed here: https://www.liv.asn.au/Professional-Practice/Supporting-You/COVID-19-Hub/Information-from-Courts.

If you require assistance with a legal matter, Robinson Gill Lawyers continues to service the needs of our clients whilst ensuring that we have a number of policies in place to protect the health of our staff and clients. Please do not hesitate to contact us on 03 9890 3321 to speak with a solicitor and find out how we may assist you further.