Oaths, Affidavits and Statutory Declarations Act 2005

an Australian Consular Officer, or an Australian Diplomatic Officer, within the meaning of the Consular Fees Act 1955 of the Commonwealth; or

a British consul or vice consul; or

an official prescribed by the regulations to be a prescribed consular official.

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 to begin with one of the following, according to the person’s preference —

I swear by Almighty God…;

I swear by [name of a deity recognised by his or her religion]…;

I swear, according to the religion and the beliefs I profess, … .

The fact that at the time of taking an oath a person has no religious belief does not affect the validity of the oath.

Despite subsection (1) a person who has to take an oath may 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 —

the oath will bind the person’s conscience; and

the person understands the consequences of taking an oath.

An oath taken under subsection (3) has the same force and effect as an oath taken under subsection (1).

If under this Act or any other law or the exercise of the Royal Prerogative a person has to or may take an oath, the person is entitled to affirm instead.

If under this Act or any other law or the exercise of the Royal Prerogative a person has to take an oath and —

the person says that the taking of an oath is contrary to his or her religious belief or conscience; or

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; or

for any other sufficient reason the taking of an oath is found not to be appropriate,

An affirmation made instead of an oath has the same force and effect as the oath.

The form of the affirmation is as follows —

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 —

in the case of a witness before a court, by the judicial officer who is presiding in the court or by a person who is authorised to do so by that judicial officer; or

in the case of a witness before a person acting judicially, by that person or by a person who is authorised to do so by that person.

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.

Any person who may lawfully administer an oath to a person may instead take the affirmation of the person.

Subject to section 4(3), the person (A) administering an oath to another person (B) must require B, in the presence of A —

to hold or touch a religious text acceptable to B or, in the absence of such a religious text, to hold up one of B’s hands; and

to say aloud the words of the oath, either by repeating them after A or by reading them.

The person (A) taking the affirmation of another person (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.

The person (A) administering an oath or taking the affirmation of another person (B) by means of an audio link or a video link, within the meaning of those terms in the Evidence Act 1906 section 120, may do so in as nearly as practicable the same way as if B were in the presence of A.

Unless another written law provides otherwise, an affidavit for any purpose in this State must be made in accordance with this section.

The affidavit must conclude with a statement that says —

it is sworn or affirmed, as the case requires, by the person making it in the presence of an authorised witness; and

where and when it is sworn or affirmed.

The person who is making the affidavit must —

sign or personally mark the statement required by subsection (2) and each other page of the affidavit; and

sign or initial any alteration, such as an insertion or erasure, that has been made to the affidavit; and

in the presence of an authorised witness, say orally on oath or orally affirm —

that he or she is the person named as the maker of the affidavit; and

that the contents of the affidavit are true; and

that the signature or mark is his or hers; and

if necessary, that any attachment to the affidavit is the attachment referred to in it.

The requirements of subsection (3)(a) and (b) need not be complied with in the presence of an authorised witness.

After the maker has complied with subsection (3)(c), the authorised witness must —

under or near the statement required by subsection (2) —

sign or personally mark the affidavit; and

imprint or clearly write his or her name and qualification as an authorised witness;

sign or personally mark each other page of the affidavit; and

sign or initial any alteration in the affidavit that has been signed or initialled by the maker.

An authorised witness for an affidavit that is made at a place within Western Australia is —

a Justice of the Peace; or

an experienced legal practitioner, unless excluded by subsection (7); or

a public notary within the meaning of the Public Notaries Act 1979; or

any person referred to in section 6(2).

An experienced legal practitioner 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.

An authorised witness for an affidavit that is made at a place outside Western Australia is —

a judge of a court of that place, or a magistrate or justice of the peace of or for that place; or

a notary public; or

a prescribed consular official who is performing official functions at that place; or

a person who has authority under the law of that place to administer an oath to another person.

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.

In this section —

of the Supreme Court, means the Chief Justice;

of the District Court, means the Chief Judge of the court;

of the Family Court, means the Chief Judge of the court;

of the Magistrates Court, means the Chief Magistrate of the court;

of the Children’s Court, means the President of the Court;

The chief judicial officer of a court may appoint any person who 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.

The appointment must be in writing and be kept in the court’s records.

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.

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.

A person may make a statutory declaration about any matter at any time, for any purpose and without the need for any legal authority to do so other than this section.

Subsection (1) does not affect the operation of any law that requires a person to make a statutory declaration for a purpose.

Unless another written law provides otherwise, a statutory declaration for any purpose in this State must be made in accordance with this section.

The statutory declaration must be in the form in Schedule 1.

The person who is making the statutory declaration must —

sign or personally mark the statutory declaration; and

sign or initial any alteration, such as an insertion or erasure, that has been made to the statutory declaration; and

in the presence of an authorised witness declare orally —

that he or she is the person named as the maker of the statutory declaration; and

that the contents of the statutory declaration are true; and

that the signature or mark is his or hers; and

if necessary, that any attachment to the statutory declaration is the attachment referred to in it.

The requirements of subsection (3)(a) and (b) need not be complied with in the presence of an authorised witness.

After the maker has complied with subsection (3)(c), the authorised witness must —

sign or personally mark the statutory declaration; and

sign or initial any alteration in the statutory declaration that has been signed or initialled by the maker; and

imprint or clearly write his or her name and qualification as an authorised witness.

An authorised witness for a statutory declaration is —

for a statutory declaration that is made at a place in Western Australia —

any person described in the second column of Schedule 2; or

any person before whom, under the Statutory Declarations Act 1959 of the Commonwealth, a statutory declaration may be made;

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, has authority to take or receive a statutory, solemn or other declaration; or

any person before whom, under the Statutory Declarations Act 1959 of the Commonwealth, a statutory declaration may be made;

for a statutory declaration that is made at any other place —

a prescribed consular official who is performing official functions at that place;

a person who is a justice or notary public under the law of that place;

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.

Regulations may amend Schedule 2 by adding a new item to it or by deleting or amending an item in it.

If the person making an affidavit or statutory declaration is blind or illiterate, the authorised witness for the document must —

read the document aloud to the person, or cause the document to be read aloud to the person in the authorised witness’s presence; and

satisfy himself or herself that the person understood what was read aloud; and

certify on the document —

that the document was read aloud to the person; and

that the authorised witness is satisfied that the person understood what was read aloud.

Subsection (1) is additional to section 9 or 12, as the case may be.