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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Oaths, Affidavits and Statutory Declarations
Bill 2005
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. Oaths and affirmations, who may administer 4
7. Oaths and affirmations, how administered 5
Part 3 -- Affidavits
8. Definitions 6
9. Affidavits, how made 6
10. Court authorised witness may witness affidavit for use
in court 8
Part 4 -- Statutory declarations
11. When a statutory declaration may be made 10
12. Statutory declarations, how made 10
Part 5 -- Miscellaneous
13. Affidavits and declarations by blind or illiterate
people 13
14. Affidavits and declarations by people not conversant
with English 13
15. Rubber stamp signatures not to be used 14
16. Non-compliance with form or procedure, effect of 14
004--2 page i
Oaths, Affidavits and Statutory Declarations Bill 2005
Contents
17. Pretending to be an authorised witness, offence of 15
18. Regulations 15
Schedule 1 -- Form of statutory
declaration 16
Schedule 2 -- Authorised witnesses for
statutory declarations 17
Defined Terms
page ii
Western Australia
LEGISLATIVE COUNCIL
Oaths, Affidavits and Statutory Declarations
Bill 2005
A Bill for
An Act about 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 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Oaths, Affidavits and Statutory Declarations
Act 2005.
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.
page 2
Oaths, Affidavits and Statutory Declarations Bill 2005
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 under 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;
page 3
Oaths, Affidavits and Statutory Declarations Bill 2005
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. Oaths and affirmations, who may administer
(1) When a person appears as a witness before a court or a person
acting judicially, any oath or affirmation the witness has to take
or make may be administered or taken --
(a) in the case of a witness before a court, by the judicial
20 officer who is presiding in the court or by a person on
the staff of the court or of the judicial officer who is
authorised to do so by the judicial officer; or
(b) in the case of a witness before a person acting judicially,
by that person.
25 (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.
page 4
Oaths, Affidavits and Statutory Declarations Bill 2005
Oaths and related matters Part 2
s. 7
7. Oaths and affirmations, how administered
(1) Subject to section 4(3), the person ("A") administering an oath
to another person ("B") must require B, in the presence of A --
(a) to hold or touch a religious text acceptable to B or, in
5 the absence of such a religious text, to hold up one of
B's hands; and
(b) to say aloud the words of the oath, either by repeating
them after A or by reading them.
(2) The person ("A") taking the affirmation of another person
10 ("B") must require B, in the presence of A, to say aloud the
words of the affirmation, either by repeating them after A or by
reading them.
page 5
Oaths, Affidavits and Statutory Declarations Bill 2005
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;
(b) sign or initial any alteration, such as an insertion or
erasure, that has been made to the affidavit; and
(c) in the presence of an authorised witness, say orally on
oath or orally affirm --
25 (i) that he or she is the person named as the maker
of the affidavit;
(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
30 is the attachment referred to in it.
page 6
Oaths, Affidavits and Statutory Declarations Bill 2005
Affidavits Part 3
s. 9
(4) The requirements of subsection (3)(a) and (b) need not be
complied with in the presence of an authorised witness.
(5) After the maker has complied with subsection (3)(c), 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 (b) sign or personally mark each other page of the affidavit;
and
(c) sign or initial any alteration in the affidavit that has been
signed or initialled by the maker.
(6) An authorised witness for an affidavit that is made at a place
15 within Western Australia is --
(a) a Justice of the Peace;
(b) an experienced lawyer, unless excluded by
subsection (7);
(c) a public notary within the meaning of the Public
20 Notaries Act 1979; or
(d) any person referred to in section 6(2).
(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
25 the affidavit.
(8) An authorised witness for an affidavit that is made at a place
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;
30 (b) a notary public;
page 7
Oaths, Affidavits and Statutory Declarations Bill 2005
Part 3 Affidavits
s. 10
(c) a prescribed consular official who is performing official
functions at that place; or
(d) a person who has authority under the law of that place to
administer an oath to another person.
5 (9) Subsections (6), (7) and (8) do not affect any other written law
that expressly provides for an affidavit to be made before a
person other than a person referred to in the subsections.
10. Court authorised witness may witness affidavit for use in
court
10 (1) In this section --
"chief judicial officer" --
(a) of the Supreme Court, means the Chief Justice;
(b) of the District Court, means the Chief Judge of the
court;
15 (c) of the Family Court, means the Chief Judge of the
court;
(d) of the Magistrates Court, means the Chief Magistrate
of the court;
(e) of the Children's Court, means the President of the
20 Court;
"court staff" of a court, includes any person employed as an
associate, orderly or other assistant to a judicial officer of
the court.
(2) The chief judicial officer of a court may appoint any person who
25 is on the court's staff but who, under section 9(6), is not an
authorised witness for affidavits, to be a court authorised
witness for the court, and may at any time cancel such an
appointment.
(3) The appointment must be in writing and be kept in the court's
30 records.
page 8
Oaths, Affidavits and Statutory Declarations Bill 2005
Affidavits Part 3
s. 10
(4) A person's appointment as a court authorised witness ceases
when the person ceases to be on the court's staff or when it is
cancelled by the chief judicial officer of the court, whichever
happens first.
5 (5) For the purposes of section 9, a court authorised witness is an
authorised witness for any affidavit that is made for use in the
court for which the officer is appointed and section 9, with any
necessary changes, applies accordingly.
page 9
Oaths, Affidavits and Statutory Declarations Bill 2005
Part 4 Statutory declarations
s. 11
Part 4 -- Statutory declarations
11. 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.
12. 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;
15 (b) sign or initial any alteration, such as an insertion or
erasure, that has been made to the statutory declaration;
and
(c) in the presence of an authorised witness declare
orally --
20 (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
true;
(iii) that the signature or mark is his or hers; and
25 (iv) if necessary, that any attachment to the statutory
declaration is the attachment referred to in it.
(4) The requirements of subsection (3)(a) and (b) need not be
complied with in the presence of an authorised witness.
page 10
Oaths, Affidavits and Statutory Declarations Bill 2005
Statutory declarations Part 4
s. 12
(5) After the maker has complied with subsection (3)(c), the
authorised witness must --
(a) sign or personally mark the statutory declaration;
(b) sign or initial any alteration in the statutory declaration
5 that has been signed or initialled by the maker; and
(c) 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
10 Western Australia --
(i) any person described in the second column of
Schedule 2; or
(ii) any person before whom, under the Statutory
Declarations Act 1959 of the Commonwealth, a
15 statutory declaration may be made;
(b) for a statutory declaration that is made at a place outside
Western Australia but within Australia --
(i) any person who, under the law of that place, has
authority to take or receive a statutory, solemn or
20 other declaration; or
(ii) any person before whom, under the Statutory
Declarations Act 1959 of the Commonwealth, a
statutory declaration may be made;
(c) for a statutory declaration that is made at any other
25 place --
(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;
30 (iii) a person who has authority under the law of that
place to administer an oath to another person or
to take, receive or witness a statutory, solemn or
other declaration.
page 11
Oaths, Affidavits and Statutory Declarations Bill 2005
Part 4 Statutory declarations
s. 12
(7) Regulations may amend Schedule 2 by adding a new item to it
or by deleting or amending an item in it.
page 12
Oaths, Affidavits and Statutory Declarations Bill 2005
Miscellaneous Part 5
s. 13
Part 5 -- Miscellaneous
13. 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 12, as the case may
be.
14. 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 13
Oaths, Affidavits and Statutory Declarations Bill 2005
Part 5 Miscellaneous
s. 15
(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 15. Rubber stamp signatures not to be used
(1) A person who is the maker of, or the witness to, an affidavit or
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.
16. 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.
page 14
Oaths, Affidavits and Statutory Declarations Bill 2005
Miscellaneous Part 5
s. 17
17. 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.
18. 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 15
Oaths, Affidavits and Statutory Declarations Bill 2005
Schedule 1 Form of statutory declaration
Schedule 1 -- Form of statutory declaration
[s. 12]
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 2005 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 16
Oaths, Affidavits and Statutory Declarations Bill 2005
Authorised witnesses for statutory declarations Schedule 2
Schedule 2 -- Authorised witnesses for statutory
declarations
[s. 12(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 2004.
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 2004.
page 17
Oaths, Affidavits and Statutory Declarations Bill 2005
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 18
Oaths, Affidavits and Statutory Declarations Bill 2005
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
· Industrial Relations Act 1979;
· 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. A member of the Australasian Institute of Loss adjuster
Chartered Loss Adjusters (ACN 074 804 167).
24. An authorised celebrant within the meaning of the Marriage celebrant
Marriage Act 1961 of the Commonwealth.
25. A member of either House of Parliament of the Member of
State or of the Commonwealth. Parliament
26. A minister of religion registered under Part IV Minister of religion
Division 1 of the Marriage Act 1961 of the
Commonwealth.
27. A nurse within the meaning of the Nurses Nurse
Act 1992.
28. A registered optometrist within the meaning of Optometrist
the Optometrists Act 1940.
29. A registered patent attorney under the Patents Patent attorney
Act 1990 of the Commonwealth.
30. A physiotherapist within the meaning of the Physiotherapist
Physiotherapists Act 1950.
31. A podiatrist within the meaning of the Podiatrists Podiatrist
Registration Act 1984.
32. A police officer. Police officer
page 19
Oaths, Affidavits and Statutory Declarations Bill 2005
Schedule 2 Authorised witnesses for statutory declarations
Item Formal description Informal
description
33. 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.
34. A registered psychologist within the meaning of Psychologist
the Psychologists Registration Act 1976.
35. A public notary within the meaning of the Public Public notary
Notaries Act 1979.
36. An officer of the Commonwealth public service. Public servant
(Commonwealth)
37. A person who is employed under the Public Public servant
Sector Management Act 1994 Part 3. (State)
38. The holder of a licence under the Real Estate and Real estate agent
Business Agents Act 1978.
39. The holder of a licence under the Settlement Settlement agent
Agents Act 1981.
40. The Sheriff of Western Australia and any deputy Sheriff or deputy
sheriff appointed by the Sheriff of Western sheriff
Australia.
41. A licensed surveyor within the meaning of the Surveyor
Licensed Surveyors Act 1909.
42. 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.
43. A member, registrar or clerk, or the chief Tribunal officer
executive officer, of any tribunal of the State or
the Commonwealth.
44. A registered veterinary surgeon within the Veterinary surgeon
meaning of the Veterinary Surgeons Act 1960.
page 20
Oaths, Affidavits and Statutory Declarations Bill 2005
Authorised witnesses for statutory declarations Schedule 2
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
chief judicial officer ...................................................................................10(1)
court staff...................................................................................................10(1)
experienced lawyer........................................................................................... 8
practice certificate ............................................................................................ 8
prescribed consular official............................................................................... 3
page 21
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