Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.
Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.
Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:
- provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
- the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).
As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.
In Myers v Satheeskumar & Ors (Judicial Review)  VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:
I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.
It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.
The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.