NSW AG Speakerman has already broken the seal of the confessional; as with the ministers of religion and the Oaths Act ,done in stealth, praying that no one notices.
by Ganesh Sahathevan
by Ganesh Sahathevan
While the ABC has reported in stories featuring the Attorney General Mark Speakman SC that the NSW Government has avoided the Child Abuse Royal Commission's recommendation to break the seal of the confessional, the NSW Government's offical response seems to say otherwise:
There is no exemption in the Children and Young Persons (Care and Protection) Act 1998 (NSW) for persons in religious ministry from reporting knowledge or suspicions formed, in whole or in part, on the information disclosed or in connection with a religious confession.
Some persons in religious ministry are already captured by the NSW mandatory reporting scheme if they work with children in another capacity. For example, a priest who is also a teacher at a school would be mandatorily required to make a report if they had reasonable grounds to suspect that a child is at risk of significant harm and those grounds arose during the course of their work as a teacher.
Some persons in religious ministry are already captured by the NSW mandatory reporting scheme if they work with children in another capacity. For example, a priest who is also a teacher at a school would be mandatorily required to make a report if they had reasonable grounds to suspect that a child is at risk of significant harm and those grounds arose during the course of their work as a teacher.
This is a complex issue that the NSW Government will consider further along with its response to recommendation 35 of the Criminal Justice report which relates to the new failure to report offence applying to members of the clergy.
In simple terms, and in language that can be easily manipulated by NSW civil servants, the seal of the confessional has already been broken. Speakman can as he has done in the case of the Oaths Act(see below), allow NSW civil servants to apply the law as they so wish, while pretending to maintain a SC like aloofness from the reality , even when the application of the law is incorrect, or the law is breached.As this writer says, the AG is better returned to the backbench, if not the Bar, where he can ply his trade away from the public gaze.
END
In simple terms, and in language that can be easily manipulated by NSW civil servants, the seal of the confessional has already been broken. Speakman can as he has done in the case of the Oaths Act(see below), allow NSW civil servants to apply the law as they so wish, while pretending to maintain a SC like aloofness from the reality , even when the application of the law is incorrect, or the law is breached.As this writer says, the AG is better returned to the backbench, if not the Bar, where he can ply his trade away from the public gaze.
END
Mark Speakman
As First Law Officer of the state, Mark overseesthe administration of almost 200 Acts of Parliament,
the most of any minister in the NSW Government.
This writer has recently been told that a minister of religion, even if the person is a marriage celebrant , is not an acceptable witness for the purposes of statutory declarations of good character submitted to the Legal Profession Admission Board. The Board is chaired by the Chief Justice,the and the LPAB is a division of the Department Of Justice ,which is under the purview of the Attorney General NSW, Mark Speakman SC.
Mr Speakman has been queried about the exclusion of ministers of religion, but has chosen to remain silent.The law on the matter is clear;ministers of religion are by virtue of State and Commonwealth law able to witness statutory declarations ,unless the legislation requires the declaration be witnessed by a judicial officer.
Having said that,this writer has sympathy for the AG;he does "oversees the administration of almost 200 Acts of Parliament, the most of any minister in the NSW Government.
END
References
Form 3A Statutory Declarations;which are declarations that a person is fit and proper for admission to practice in NSW.
( (For ease of reference ,located at linkhttp://www.lpab.justice.nsw.gov.au/Documents/Form%203A_31%20July%202015.pdf)
The questions that arise in the matter are these:
a) are legal practitioners and JPs the only persons who may witness a Form 3A ;and if not
b) who else can.
Form 3A is listed in the Eight Schedule of the Oaths Act 1900.
These are dealt with in Section 21 of the Act which states:
21 (1) The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary , commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her, in the form or to the effect of the form in either the Eighth or the Ninth Schedule.
The phrase " or other person by law authorised to administer an oath" is not defined anywhere in the Act.
Neither is the terms "authorised witness", which is , the primary question in this matter.
However, Section 21 does provide us an answer in the negative to the question:
are legal practitioners and JPs the only persons who may witness a Form 3A .
However, Section 34 provides :
34 IDENTIFICATION OF PERSON MAKING STATUTORY DECLARATION OR AFFIDAVIT
(1) A person who takes and receives a statutory declaration or affidavit in this State (an
"authorised witness " )
(a) must see the face of the person making the declaration or affidavit, and
(b) must know the person who makes the declaration or affidavit or confirm the person's identity in accordance with the regulations, and
(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.
Reading Sections 21 and 34 together it does appear that Form 3A and other Eight Schedule declarations may be witnessed by " other person(s) by law authorised to administer an oath".
The Act and the related regulations do not define or provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.
The Act and the related regulations do not define nor provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.
In fact, with regards marriage the Commonwealth recognizies ministers of religion registered pursuant to the laws of the states and territories:
The Commonwealth Attorney General's chambers says on its website:
Under Australian law, only an authorised celebrant can legally solemnise marriages within Australia. The department maintains a list of all authorised marriage celebrants in Australia; this is referred to as the Register of Marriage Celebrants. The Register of Marriage celebrants can be used to search for authorised celebrants in your state or territory and can be broken down by type of authorisation.
Ministers of religion
These celebrants are regulated by state and territory registries of births, deaths and marriages and their respective religious organisation as listed in the Marriage (Recognised Denominations) Proclamation 2007.
The department maintains a list of all Ministers of religion of recognised denominations who perform religious ceremonies.
Form 3A Statutory Declarations;which are declarations that a person is fit and proper for admission to practice in NSW.
( (For ease of reference ,located at linkhttp://www.lpab.justice.nsw.gov.au/Documents/Form%203A_31%20July%202015.pdf)
The questions that arise in the matter are these:
a) are legal practitioners and JPs the only persons who may witness a Form 3A ;and if not
b) who else can.
Form 3A is listed in the Eight Schedule of the Oaths Act 1900.
These are dealt with in Section 21 of the Act which states:
21 (1) The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary , commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her, in the form or to the effect of the form in either the Eighth or the Ninth Schedule.
The phrase " or other person by law authorised to administer an oath" is not defined anywhere in the Act.
Neither is the terms "authorised witness", which is , the primary question in this matter.
However, Section 21 does provide us an answer in the negative to the question:
are legal practitioners and JPs the only persons who may witness a Form 3A .
However, Section 34 provides :
34 IDENTIFICATION OF PERSON MAKING STATUTORY DECLARATION OR AFFIDAVIT
(1) A person who takes and receives a statutory declaration or affidavit in this State (an
"authorised witness " )
(a) must see the face of the person making the declaration or affidavit, and
(b) must know the person who makes the declaration or affidavit or confirm the person's identity in accordance with the regulations, and
(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.
Reading Sections 21 and 34 together it does appear that Form 3A and other Eight Schedule declarations may be witnessed by " other person(s) by law authorised to administer an oath".
The Act and the related regulations do not define or provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.
The Act and the related regulations do not define nor provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.
In fact, with regards marriage the Commonwealth recognizies ministers of religion registered pursuant to the laws of the states and territories:
The Commonwealth Attorney General's chambers says on its website:
Under Australian law, only an authorised celebrant can legally solemnise marriages within Australia. The department maintains a list of all authorised marriage celebrants in Australia; this is referred to as the Register of Marriage Celebrants. The Register of Marriage celebrants can be used to search for authorised celebrants in your state or territory and can be broken down by type of authorisation.
Ministers of religion
These celebrants are regulated by state and territory registries of births, deaths and marriages and their respective religious organisation as listed in the Marriage (Recognised Denominations) Proclamation 2007.
The department maintains a list of all Ministers of religion of recognised denominations who perform religious ceremonies.
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