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This is a Bill, not an Act. For current law, see the Acts databases.


OATHS, AFFIDAVITS AND STATUTORY DECLARATIONS BILL 2003

                       Western Australia


Oaths, Affidavits and Statutory Declarations
                  Bill 2003

                         CONTENTS


      Part 1 -- Preliminary
1.    Short title                                             2
2.    Commencement                                            2
3.    Interpretation                                          2
      Part 2 -- Oaths and related matters
4.    Oaths, general form of                                  3
5.    Affirmation may be made instead of oath                 3
6.    Who may administer oaths and take affirmations          4
7.    Oaths and affirmations, how administered                4
      Part 3 -- Affidavits
8.    Definitions                                             6
9.    Affidavits, how made                                    6
      Part 4 -- Statutory declarations
10.   When a statutory declaration may be made                9
11.   Statutory declarations, how made                        9
      Part 5 -- Miscellaneous
12.   Affidavits and declarations by blind or illiterate
      people                                                 11
13.   Affidavits and declarations by people not conversant
      with English                                           11
14.   Rubber stamp signatures not to be used                 12
15.   Non-compliance with form or procedure, effect of       12
16.   Pretending to be an authorised witness, offence of     13
17.   Regulations                                            13


                           259--2B                            page i
Oaths, Affidavits and Statutory Declarations Bill 2003



Contents



            Schedule 1 -- Form of statutory
                declaration                              14

            Schedule 2 -- Authorised witnesses for
                statutory declarations                   15




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

 (As amended during consideration in detail and upon reconsideration)



   Oaths, Affidavits and Statutory Declarations
                     Bill 2003


                               A Bill for


An Act relating to oaths, affidavits and statutory declarations and
for related purposes.



The Parliament of Western Australia enacts as follows:




                                                                page 1
     Oaths, Affidavits and Statutory Declarations Bill 2003
     Part 1           Preliminary

     s. 1



                            Part 1 -- Preliminary
     1.       Short title
              This Act may be cited as the Oaths, Affidavits and Statutory
              Declarations Act 2003.

5    2.       Commencement
              This Act comes into operation on a day fixed by proclamation.

     3.       Interpretation
              In this Act, unless the contrary intention appears --
              "prescribed consular official" means --
10                 (a) an Australian Consular Officer, or an Australian
                         Diplomatic Officer, within the meaning of the
                         Consular Fees Act 1955 of the Commonwealth;
                   (b) a British consul or vice consul; or
                   (c) an official prescribed by the regulations to be a
15                       prescribed consular official.




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                            Oaths, Affidavits and Statutory Declarations Bill 2003
                                         Oaths and related matters          Part 2

                                                                                s. 4



                   Part 2 -- Oaths and related matters
     4.         Oaths, general form of
          (1)   If under this Act or any other law or the exercise of the Royal
                Prerogative a person has to take an oath, the form of the oath is
5               to begin with one of the following, according to the person's
                preference --
                  (a) I swear by Almighty God ...  ;
                  (b) I swear by [name of a deity recognised by his or her
                        religion] ...  ;
10                (c) I swear, according to the religion and the beliefs I
                        profess,  ...  .
          (2)   The fact that at the time of taking an oath a person has no
                religious belief does not affect the validity of the oath.
          (3)   Despite subsection (1) a person who has to take an oath may
15              take an oath in any form or manner that he or she wants if the
                person before whom he or she is to take the oath is satisfied
                that --
                  (a) the oath will bind the person's conscience; and
                  (b) the person understands the consequences of taking an
20                      oath.
          (4)   An oath taken under subsection (3) has the same force and
                effect as an oath taken in accordance with subsection (1).

     5.         Affirmation may be made instead of oath
          (1)   If under this Act or any other law or the exercise of the Royal
25              Prerogative a person has to or may take an oath, the person is
                entitled to affirm instead.
          (2)   If under this Act or any other law or the exercise of the Royal
                Prerogative a person has to take an oath and --
                  (a) the person says that the taking of an oath is contrary to
30                      his or her religious belief or conscience;

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     Oaths, Affidavits and Statutory Declarations Bill 2003
     Part 2           Oaths and related matters

     s. 6



                  (b)   it is not reasonably practicable, without inconvenience
                        or delay, at the time when and place where the oath has
                        to be taken, to administer to the person an oath in a
                        manner and form that will bind the person's conscience;
5                       or
                  (c)   for any other sufficient reason the taking of an oath is
                        found not to be appropriate,
                the person may be required to affirm instead.
          (3)   An affirmation made instead of an oath has the same force and
10              effect as the oath.
          (4)   The form of the affirmation is as follows --
                I sincerely declare and affirm ... ,
                which words replace those set out in section 4(1) as the
                beginning of any oath.

15   6.         Who may administer oaths and take affirmations
          (1)   Any person who, alone or with others, constitutes a court, and
                any person who is acting judicially, may administer an oath to
                or take the affirmation of any person who appears before the
                person as a witness.
20        (2)   Any registrar or clerk of a court, and any mining registrar
                appointed under the Mining Act 1978, may administer an oath to
                or take the affirmation of any person for any purpose.
          (3)   Any person who may lawfully administer an oath to a person
                may instead take the affirmation of the person.

25   7.         Oaths and affirmations, how administered
          (1)   The person before whom another person is to take an oath or
                make an affirmation is to --
                 (a) require the other person to hold up his or her hand and to
                       repeat after the person the words of the oath or
30                     affirmation; or

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                  Oaths, Affidavits and Statutory Declarations Bill 2003
                               Oaths and related matters          Part 2

                                                                     s. 7



       (b)   require the other person to read the oath or affirmation
             aloud.
(2)   It is not necessary for a person who is taking an oath to hold or
      touch any religious text while doing so.




                                                                  page 5
     Oaths, Affidavits and Statutory Declarations Bill 2003
     Part 3           Affidavits

     s. 8



                                 Part 3 -- Affidavits
     8.         Definitions
                In this Part --
                "experienced lawyer" means a legal practitioner who has held
5                   a practice certificate for at least 2 years and who holds a
                    current practice certificate;
                "practice certificate" has the meaning given by the Legal
                    Practice Act 2003.

     9.         Affidavits, how made
10        (1)   Unless another written law provides otherwise, an affidavit for
                any purpose in this State must be made in accordance with this
                section.
          (2)   The affidavit must conclude with a statement that says --
                 (a) it is sworn or affirmed, as the case requires, by the
15                      person making it in the presence of an authorised
                        witness; and
                 (b) where and when it is sworn or affirmed.
          (3)   The person who is making the affidavit must --
                 (a) sign or personally mark the statement required by
20                     subsection (2) and each other page of the affidavit; and
                 (b) in the presence of an authorised witness, say orally on
                       oath or orally affirm --
                          (i) that he or she is the person named as the maker
                               of the affidavit;
25                       (ii) that the contents of the affidavit are true;
                        (iii) that the signature or mark is his or hers; and
                        (iv) if necessary, that any attachment to the affidavit
                               is the attachment referred to in it.




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                       Oaths, Affidavits and Statutory Declarations Bill 2003
                                                    Affidavits         Part 3

                                                                            s. 9



     (4)   The requirements of subsection (3)(a) need not be complied
           with in the presence of an authorised witness.
     (5)   After the maker has complied with subsection (3)(b), the
           authorised witness must --
5            (a) under or near the statement required by
                   subsection (2) --
                     (i) sign or personally mark the affidavit; and
                    (ii) imprint or clearly write his or her name and
                          qualification as an authorised witness;
10                 and
             (b) sign or personally mark each other page of the affidavit.
     (6)   An authorised witness for an affidavit that is made at a place
           within Western Australia is --
            (a) a Justice of the Peace;
15          (b) an experienced lawyer, unless excluded by
                  subsection (7);
            (c) a public notary within the meaning of the Public
                  Notaries Act 1979; or
            (d) any person referred to in section 6(2).
20   (7)   An experienced lawyer who has participated in any way in
           preparing an affidavit, or in the proceedings in which an
           affidavit is intended to be used, is not an authorised witness for
           the affidavit.
     (8)   An authorised witness for an affidavit that is made at a place
25         outside Western Australia is --
             (a) a judge of a court of that place, or a magistrate or justice
                   of the peace of or for that place;
            (b) a notary public;
             (c) a prescribed consular official who is performing official
30                 functions at that place; or



                                                                       page 7
    Oaths, Affidavits and Statutory Declarations Bill 2003
    Part 3           Affidavits

    s. 9



               (d)   a person who has authority under the law of that place to
                     administer an oath to another person.
       (9)   Subsections (6), (7) and (8) do not affect any other written law
             that expressly provides for an affidavit to be made before a
5            person other than a person referred to in the subsections.




    page 8
                             Oaths, Affidavits and Statutory Declarations Bill 2003
                                              Statutory declarations         Part 4

                                                                                s. 10



                       Part 4 -- Statutory declarations
     10.         When a statutory declaration may be made
           (1)   A person may make a statutory declaration about any matter at
                 any time, for any purpose and without the need for any legal
5                authority to do so other than this section.
           (2)   Subsection (1) does not affect the operation of any law that
                 requires a person to make a statutory declaration for a purpose.

     11.         Statutory declarations, how made
           (1)   Unless another written law provides otherwise, a statutory
10               declaration for any purpose in this State must be made in
                 accordance with this section.
           (2)   The statutory declaration must be in the form in Schedule 1.
           (3)   The person who is making the statutory declaration must --
                  (a) sign or personally mark the statutory declaration; and
15                (b) in the presence of an authorised witness declare
                        orally --
                           (i) that he or she is the person named as the maker
                               of the statutory declaration;
                          (ii) that the contents of the statutory declaration are
20                             true;
                         (iii) that the signature or mark is his or hers; and
                         (iv) if necessary, that any attachment to the statutory
                               declaration is the attachment referred to in it.
           (4)   The requirements of subsection (3)(a) need not be complied
25               with in the presence of an authorised witness.
           (5)   After the maker has complied with subsection (3)(b), the
                 authorised witness must --
                   (a) sign or personally mark the statutory declaration; and



                                                                              page 9
     Oaths, Affidavits and Statutory Declarations Bill 2003
     Part 4           Statutory declarations

     s. 11



                (b)   imprint or clearly write his or her name and qualification
                      as an authorised witness.
        (6)    An authorised witness for a statutory declaration is --
                (a) for a statutory declaration that is made at a place in
5                     Western Australia -- any person described in the second
                      column of Schedule 2;
                (b) for a statutory declaration that is made at a place outside
                      Western Australia but within Australia -- any person
                      who under the law of that place, or under the Statutory
10                    Declarations Act 1959 of the Commonwealth, has
                      authority to take or receive a statutory, solemn or other
                      declaration;
                (c) for a statutory declaration that is made at any other
                      place --
15                       (i) a prescribed consular official who is performing
                             official functions at that place;
                        (ii) a person who is a justice or notary public under
                             the law of that place;
                       (iii) a person who has authority under the law of that
20                           place to administer an oath to another person or
                             to take, receive or witness a statutory, solemn or
                             other declaration.
        (7)    Regulations may amend Schedule 2 by adding or deleting or
               amending any item in it.




     page 10
                             Oaths, Affidavits and Statutory Declarations Bill 2003
                                                     Miscellaneous           Part 5

                                                                               s. 12



                             Part 5 -- Miscellaneous
     12.         Affidavits and declarations by blind or illiterate people
           (1)   If the person making an affidavit or statutory declaration is
                 blind or illiterate, the authorised witness for the document
5                must --
                   (a) read the document aloud to the person, or cause the
                         document to be read aloud to the person in the
                         authorised witness's presence;
                   (b) satisfy himself or herself that the person understood
10                       what was read aloud; and
                   (c) certify on the document --
                            (i) that the document was read aloud to the person;
                                  and
                           (ii) that the authorised witness is satisfied that the
15                                person understood what was read aloud.
           (2)   Subsection (1) is additional to section 9 or 11, as the case may
                 be.

     13.         Affidavits and declarations by people not conversant with
                 English
20         (1)   If the person making an affidavit is not sufficiently conversant
                 with English to be able to make the affidavit in English, the
                 person may make the affidavit in another language but the
                 affidavit is not admissible in a court or by a person acting
                 judicially unless --
25                 (a) the affidavit is translated into written English by a
                         suitably qualified translator; and
                   (b) the translator makes an affidavit --
                            (i) that sets out his or her qualifications as a
                                  translator;
30                         (ii) that says the English translation is accurate; and
                          (iii) that has the English translation attached to it.

                                                                            page 11
     Oaths, Affidavits and Statutory Declarations Bill 2003
     Part 5           Miscellaneous

     s. 14



           (2)   Subsection (1), with any necessary changes, applies to and in
                 respect of a statutory declaration as if each reference in the
                 subsection to "affidavit" were a reference to "statutory
                 declaration".

5    14.         Rubber stamp signatures not to be used
           (1)   A person who is the maker of, or the witness to, an affidavit or a
                 statutory declaration must not use a rubber or other stamp to
                 make the person's signature or personal mark.
           (2)   Subsection (1) does not prevent a person from using a rubber or
10               other stamp on an affidavit or statutory declaration to imprint
                 the person's name near the person's signature or mark to
                 identify whose signature or mark it is.
           (3)   An affidavit or statutory declaration that is signed by the maker
                 or witness with a rubber stamp is not admissible in a court or by
15               a person acting judicially.

     15.         Non-compliance with form or procedure, effect of
           (1)   The validity of an oath, affirmation or statutory declaration is
                 not affected by the fact that the person taking or making it does
                 not use the exact words required as long as the words actually
20               used do not materially affect the substance of the exact words
                 and are not likely to mislead.
           (2)   The validity of an oath, affirmation, affidavit or statutory
                 declaration is not affected by the fact that the required
                 procedure for taking or making it is not followed exactly as long
25               as the procedure actually followed substantially complies with
                 the required procedure.




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                       Oaths, Affidavits and Statutory Declarations Bill 2003
                                               Miscellaneous           Part 5

                                                                           s. 16



     16.   Pretending to be an authorised witness, offence of
           If a person who is not an authorised witness for affidavits or for
           statutory declarations pretends to be, or asserts that he or she is,
           such an authorised witness in the knowledge that he or she is
5          not, the person commits an offence.
           Penalty: Imprisonment for 12 months.

     17.   Regulations
           The Governor may make regulations prescribing all matters that
           are required or permitted by this Act to be prescribed or are
10         necessary or convenient to be prescribed for giving effect to the
           purposes of this Act.




                                                                       page 13
     Oaths, Affidavits and Statutory Declarations Bill 2003



     Schedule 1       Form of statutory declaration



               Schedule 1 -- Form of statutory declaration
                                                                                 [s. 11]
               I,
               [name, address and occupation of person making the declaration]
5              sincerely declare as follows:
               [insert content of the statutory declaration; use numbered paragraphs
               if content is long]
               This declaration is true and I know that it is an offence to make a
               declaration knowing that it is false in a material particular.
10             This declaration is made under the Oaths, Affidavits and Statutory
               Declarations Act 2003 at [place] on [date] by --
               [Signature of person making the declaration]
               in the presence of --
               [Signature of authorised witness]
15             [Name of authorised witness and qualification as such a witness]




     page 14
                    Oaths, Affidavits and Statutory Declarations Bill 2003



             Authorised witnesses for statutory declarations        Schedule 2



     Schedule 2 -- Authorised witnesses for statutory
                     declarations
                                                                    [s. 11(6)(a)]


Item Formal description                                 Informal
                                                        description
1.   A member of the academic staff of an institution   Academic
     established under any of the following Acts --      (post-secondary
      •  Curtin University of Technology Act 1966;       institution)
      •  Edith Cowan University Act 1984;
      •  Murdoch University Act 1973;
      •  University of Notre Dame Australia
         Act 1989;
      •  University of Western Australia Act 1911;
      •  Vocational Education and Training Act 1996.
2.   A member of any of the following bodies --          Accountant
      •  Association of Taxation and Management
         Accountants (ACN 002 876 208);
      •  CPA Australia (ACN 008 392 452);
      •  The Institute of Chartered Accountants in
         Australia (ARBN 084 642 571);
      •  National Institute of Accountants
         (ACN 004 130 643);
      •  National Tax & Accountants' Association
         Limited (ACN 057 551 854).
3.   A person who is registered under the Architects    Architect
     Act 2003.
4.   An Australian Consular Officer within the          Australian Consular
     meaning of the Consular Fees Act 1955 of the       Officer
     Commonwealth.
5.   An Australian Diplomatic Officer within the        Australian
     meaning of the Consular Fees Act 1955 of the       Diplomatic Officer
     Commonwealth.
6.   A bailiff appointed under the Civil Judgments      Bailiff
     Enforcement Act 2003.




                                                                        page 15
Oaths, Affidavits and Statutory Declarations Bill 2003



Schedule 2      Authorised witnesses for statutory declarations



Item Formal description                                     Informal
                                                            description
7.    A person appointed to be in charge of the head        Bank manager
      office or any branch office of an authorised
      deposit-taking institution carrying on business in
      the State under the Banking Act 1959 of the
      Commonwealth.
8.    A member of Chartered Secretaries Australia           Chartered secretary
      Limited (ACN 008 615 950).
9.    A pharmaceutical chemist within the meaning of        Chemist
      the Pharmacy Act 1964.
10.   A chiropractor within the meaning of the              Chiropractor
      Chiropractors Act 1964.
11.   A person registered as an auditor or a liquidator     Company auditor or
      under the Corporations Act 2001 of the                liquidator
      Commonwealth.
12.   A judge, master, magistrate, registrar or clerk, or   Court officer
      the chief executive officer, of any court of the
      State or the Commonwealth.
13.   A member of the Australian Defence Force who          Defence force
      is --                                                  officer
       •  an officer within the meaning of the Defence
           Force Discipline Act 1982 of the
           Commonwealth;
       •  a non-commissioned officer within the
           meaning of that Act with 5 or more years of
           continuous service; or
       •  a warrant officer within the meaning of that
           Act.
14.   A dentist within the meaning of the Dental            Dentist
      Act 1939.
15.   A medical practitioner within the meaning of the      Doctor
      Medical Act 1894.
16.   A member of the Institution of Engineers,             Engineer
      Australia, other than at the grade of student.




page 16
                      Oaths, Affidavits and Statutory Declarations Bill 2003



               Authorised witnesses for statutory declarations          Schedule 2



Item Formal description                                    Informal
                                                           description
17.   The secretary of an organisation of employees or     Industrial
      employers that is registered under one of the        organisation
      following Acts --                                     secretary
       •  the Industrial Relations Act 1979;
       •  the Workplace Relations Act 1996 of the
           Commonwealth.
18.   A member of the National Insurance Brokers           Insurance broker
      Association of Australia (ACN 006 093 849).
19.   A Justice of the Peace.                              Justice of the Peace
20.   A legal practitioner within the meaning of the       Lawyer
      Legal Practice Act 2003.
21.   The chief executive officer or deputy chief          Local government
      executive officer of a local government.             CEO or deputy CEO
22.   A member of the council of a local government        Local government
      within the meaning of the Local Government           councillor
      Act 1995.
23.   An authorised celebrant within the meaning of the    Marriage celebrant
      Marriage Act 1961 of the Commonwealth.
24.   A member of either House of Parliament of the        Member of
      State or of the Commonwealth.                        Parliament
25.   A minister of religion registered under Part IV      Minister of religion
      Division 1 of the Marriage Act 1961 of the
      Commonwealth.
26.   A nurse within the meaning of the Nurses             Nurse
      Act 1992.
27.   A registered patent attorney under the Patents       Patent attorney
      Act 1990 of the Commonwealth.
28.   A physiotherapist within the meaning of the          Physiotherapist
      Physiotherapists Act 1950.
29.   A podiatrist within the meaning of the Podiatrists   Podiatrist
      Registration Act 1984.
30.   A police officer.                                    Police officer
31.   The person in charge of an office established by,    Post office manager
      or conducted by an agent of, Australia Post within
      the meaning of the Australian Postal Corporation
      Act 1989 of the Commonwealth.
32.   A registered psychologist within the meaning of      Psychologist
      the Psychologists Registration Act 1976.


                                                                           page 17
Oaths, Affidavits and Statutory Declarations Bill 2003



Schedule 2      Authorised witnesses for statutory declarations



Item Formal description                                  Informal
                                                         description
33.   A public notary within the meaning of the Public Public notary
      Notaries Act 1979.
34.   An officer of the Commonwealth public service. Public servant
                                                         (Commonwealth)
35.   A person who is employed under the Public          Public servant
      Sector Management Act 1994 Part 3.                 (State)
36.   The holder of a licence under the Real Estate and Real estate agent
      Business Agents Act 1978.
37.   The holder of a licence under the Settlement       Settlement agent
      Agents Act 1981.
38.   The Sheriff of Western Australia and any deputy Sheriff or deputy
      sheriff appointed by the Sheriff of Western        sheriff
      Australia.
39.   A licensed surveyor within the meaning of the      Surveyor
      Licensed Surveyors Act 1909.
40.   A person employed as a member of the teaching Teacher
      staff within the meaning of the School Education
      Act 1999 or as a teacher of a non-government
      school within the meaning of that Act.
41.   A member, registrar or clerk, or the chief         Tribunal officer
      executive officer, of any tribunal of the State or
      the Commonwealth.
42.   A registered veterinary surgeon within the         Veterinary surgeon
      meaning of the Veterinary Surgeons Act 1960.




page 18

 


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