Oaths Act 2001

Oaths Act 2001

This Act may be cited as the Oaths Act 2001.

This Act commences on a day to be proclaimed.

In this Act –

affidavit includes – any affirmation, statutory declaration or other declaration; and any acknowledgment, examination or attestation; and for the purpose of section 7, any deposition or statement made by an informant or a complainant;

appointed person means a person appointed under section 9 to take and receive evidence;

commissioner for declarations means a person referred to in section 12;

consular agent means – a consul-general, consul, vice-consul or consular agent; and an acting consul-general, acting consul, acting vice-consul or acting consular agent;

declared office means an office declared under section 8;

diplomatic agent means – any ambassador, envoy, high commissioner, minister, head of mission, commissioner, charge d'affaires, counsellor or secretary at any embassy, legation, high commission or commission; and a trade commissioner; and a person appointed to hold or act in a declared office in a country or place outside Australia;

judicial authority means a judge, person, court or body authorised by the law of a place outside this State to take or receive evidence on oath in that place;

oath includes an affirmation and a declaration;

relevant matter includes – age; and the capacity to hear, understand or communicate.

An affidavit of the service in this State of any process or other document to be issued out of any court may be taken before a justice.

If, under any Act, any affidavit is required to be made, or any document to be signed, before any justice, it is sufficient if the affidavit is made or document is signed before a justice in the jurisdiction in which the affidavit is made or the document is signed.

The signature of any person on any affidavit or document purporting to be that of a justice in the jurisdiction in which the affidavit is made or document is signed is evidence that – the person is a justice; and the person signed the affidavit or document; and the person has authority to take the affidavit or to attest the signature to the document.

If, under any Act, any oath, affidavit or document is required to be administered by, or made or signed before, a commissioner for taking affidavits or a justice, or if any notarial act is required to be done in any place out of this State for the purpose of being used in this State, it is sufficient if the oath, affidavit, document or notarial act is administered, made, signed or done before or by any diplomatic agent or consular agent performing functions in that place.

The signature of any person to any oath, affidavit, document or notarial act purporting to be that of a diplomatic agent or consular agent is evidence that – the person is a diplomatic agent or consular agent; and the person administered the oath or signed the affidavit, document or notarial act; and the person has authority to administer the oath, take the affidavit, attest the signature to the document or do the notarial act.

This section applies to an affidavit before a justice or an appointed person made by a person who the justice or appointed person is satisfied, having regard to any relevant matter, is not competent to take an oath.

The affidavit is – allowed as if it were taken on oath if – the justice or appointed person tells the person making it that it is important to tell the truth; and that person declares that the affidavit does not contain any lies; and not allowed if the justice or appointed person is satisfied that the person – does not understand the difference between the truth and a lie; or is not able to respond rationally to questions.

It is presumed, unless the contrary is established to the satisfaction of the justice or appointed person, that the person – understands the difference between the truth and a lie; and is able to respond rationally to questions.

This section does not make evidence admissible if it would otherwise be inadmissible.

The Minister, by order, may declare an office of the Commonwealth to be a declared office for the purpose of the definition of "diplomatic agent".

A judicial authority wishing to take evidence in this State may appoint a person to take and receive evidence in this State.

An appointed person may – take or receive evidence in this State for the judicial authority; and administer an oath for that purpose.

An appointed person appointed by a judicial authority that is not a court or judge may only take and receive evidence or administer an oath in this State with the written consent of the Attorney-General.

An affidavit is not to be taken by an appointed person unless the person receives a written certificate from a consular agent of the place to which the judicial authority belongs that he or she believes the affidavit is required for the purpose of a matter pending before or in that judicial authority.

The jurat or attestation of the affidavit is to state the name and official designation of the consular agent on whose certificate the affidavit has been taken.

An affidavit taken by an appointed person is taken to have been made in a judicial proceeding.

In any prosecution for perjury in respect of an affidavit – it is not necessary to prove that – any judicial or other proceeding was actually pending before or in a judicial authority; or the certificate referred to in section 10 was actually given; and any evidence to the contrary is not admissible.