Section 61ZE - Power to take evidence on oath or affirmation

Where a person attends an examination under a notice to attend, the Office of the Victorian Information Commissioner (OVIC) can require that person to give evidence or answer questions under oath or affirmation.³ This helps to ensure the integrity of the examination by requiring the person to answer truthfully or risk paying a penalty for failing to do so.

Either the Information Commissioner, or a person authorised by the Information Commissioner (authorised officer), may administer an oath or affirmation.

Regardless of whether a person takes an oath or makes an affirmation, it is an offence to provide information to OVIC knowing that it is false or misleading in a material way.⁴

The person attending the examination may choose between taking an oath or making an affirmation.⁸ When administering the oath or affirmation, the Information Commissioner or authorised officer must let the person know that they can choose, unless it is apparent that the person already knows they have that choice.⁹

If the person attending the examination refuses to choose, or it is not appropriate for them to take the appropriate oath, OVIC may direct the person to make an affirmation.¹⁰

An oath is a promise to tell the truth, usually appealing to a god. When taking an oath, the person may hold a religious text, but they do not have to.¹⁶ Similarly, the oath does not need to refer to a god and may refer to the basis of the person’s beliefs instead.¹⁷

An affirmation has the same effect as an oath,¹⁹ except it does not refer have a connection to a person’s religion or faith.

A person who intentionally makes a false statement, whether orally or in writing, under oath or affirmation may have committed perjury. Perjury is a criminal offence when someone wilfully provides false information and says that it is true, under oath or affirmation.²²

A person who takes an oath or makes an affirmation must say the words aloud in the presence of the Information Commissioner or authorised officer. This can be done in their physical presence or by audio visual link or audio link.²⁴ A person does not need to have a Bible or other religious text or object to make an oath.

It is an offence for a person to refuse or fail to take an oath or make an affirmation when required, without a reasonable excuse.²⁷ The person administering the oath or affirmation must inform the person attending the examination that refusal or failure to take an oath or make an affirmation, without a reasonable excuse, is an offence.²⁸ If this is not done, the person will not commit an offence if they subsequently refuse or fail to take an oath or make an affirmation.

What constitutes a reasonable excuse will depend on the facts. If a person to be interviewed believes they have a reasonable excuse to not take an oath or make an affirmation, they should seek legal advice and advise the examiner when they are asked to do so.