Oaths Act 1900

The Act casts a wide net. Any person required to take an oath of allegiance or official or judicial oath — public officers (s 7), Supreme Court judges, justices of the peace (s 8), District Court and Local Court judges and other judicial officers (s 9) — is directly affected. Any witness in civil or criminal proceedings, any person making a statement in an information or complaint, or any deponent required to swear or affirm falls within s 13. Every individual who makes a statutory declaration under Part 4 or an affidavit under Part 5 is subject to the Act’s formalities and the severe sanctions in ss 25, 25A, 29 and 30.

Authorised witnesses form a second class: justices of the peace, notaries public, Australian legal practitioners (s 27), federal judicial officers, commissioners for affidavits, the Registrar-General, and persons authorised by writ of dedimus potestatem. They must comply with the face-to-face identification rule (s 34), the reading-and-certification obligations for illiterate or blind persons (ss 24A, 27A), and the prohibition on administering extra-judicial oaths (s 20). Breach exposes them to the offence in s 21A (up to 12 months’ imprisonment or 2 penalty units) or, in the case of unauthorised receipt of a statutory declaration, the same penalty.

The Governor and Chief Justice exercise oversight roles. The Governor may order particular office-holders to take the oaths (ss 7–9), substitute declarations for oaths in revenue matters (s 15), and administer oaths required by gubernatorial appointment (s 34A). The Chief Justice may restrict practitioners’ authority to take affidavits (s 27(1)), consent to foreign authorities administering oaths in New South Wales (s 26B(2)), and issue commissions under s 27(2).

Finally, the Act affects courts and tribunals. Chapter 5 of the Criminal Procedure Act 1986 applies to the summary disposal of offences under ss 13(2), 20, 25, 25A, 29 and 30 (s 2A). The Evidence Act 1995 is expressly preserved in s 13(1), so that Act’s competence and compellability rules continue to operate. Foreign courts and arbitral tribunals benefit from the outbound recognition rules in ss 26 and 26A.

Duties fall primarily on three groups. First, persons liable to take promissory oaths must do so when tendered or vacate office (s 11(1)); they cannot be compelled to take the oath more than once for the same appointment (s 11(2)). Second, authorised witnesses must observe the physical formalities in s 11A (holding the Bible or Testament, repeating the adjuration or allowing the deponent to repeat the words), administer the oath in the form prescribed by s 11A(2) unless the person objects, and, for statutory declarations and affidavits, comply with the face-to-face identification and certification requirements of s 34. Where the deponent cannot read English, the witness must read the document, satisfy themselves of understanding, and certify accordingly (ss 24A, 27A). Third, every declarant or deponent must not wilfully make a false statement knowing it to be untrue in a material particular (ss 25, 25A, 29, 30, 33).

Rights are largely protective. A person with a conscientious objection to an oath has a statutory right to affirm (s 12) or, in court, to make the Sixth or Seventh Schedule declaration or affirmation (s 13(1)). The Act expressly preserves the validity of any oath that would have been lawful before its passage (s 11A(6)(a)) and provides that lack of religious belief does not affect legality once an oath has been administered (s 11A(6)(c)). A person who is blind, illiterate or unable to read written English has the right to have the document read to them and to have that fact certified, thereby preserving the document’s validity. Section 32 gives a person whom the witness believes lacks capacity to swear an oath the right to make a declaration after a truth warning, provided they understand the difference between truth and lies and can respond rationally; the presumption is that they can. Finally, s 34(4) protects the validity of a statutory declaration or affidavit even if the authorised witness fails to comply with the identification requirements.

The Act creates a graduated series of offences. The baseline false-declaration offence under s 25 carries a maximum of 5 years’ imprisonment on indictment. Where the declarant also derives or attempts to derive a material benefit, s 25A increases the maximum to 7 years. Wilful false swearing in an affidavit is perjury and attracts the same penalties as perjury in the Supreme Court (s 29). The distinct offence in s 30 of subscribing a document that purports to be an affidavit but does not comply with s 11A’s physical requirements (where the person knows it is untrue in a material non-formality particular) is punishable by 5 years on indictment or, summarily, 6 months or 5 penalty units. Section 31 allows an alternative verdict: acquittal on the perjury count and conviction on the s 30 count. Making a false statement in an affidavit taken under the capacity provisions of s 32 is treated as perjury, but prosecution requires the Attorney General’s sanction (s 33).

Unauthorised receipt of a statutory declaration attracts up to 12 months’ imprisonment or 2 penalty units (s 21A). Administering an extra-judicial oath without jurisdiction carries up to 2 years’ imprisonment (s 20(1)). Failure to comply with the s 34 identification and certification requirements is a summary offence of 2 penalty units (s 34(1)).

Enforcement is by ordinary criminal process. Section 2A applies Chapter 5 of the Criminal Procedure Act 1986 to the indictable offences listed there, allowing summary disposal unless election is made. The Act does not create its own investigative powers; reliance is placed on the Law Enforcement (Powers and Responsibilities) Act 2002 and general police powers.

The Oaths Act 1900 is not a standalone code. Section 13(1) is expressly “subject to the Evidence Act 1995”, preserving that Act’s rules on competence, compellability and the giving of evidence. The perjury sanctions in ss 13(2), 25, 29 and 33 operate in tandem with the common-law and statutory offence of perjury. Section 2A incorporates the summary-procedure regime of the Criminal Procedure Act 1986. Fees for declarations are tied to the fees that would have been payable on the equivalent oath or affidavit (s 23), and fees for commissioned affidavits are prescribed under the Civil Procedure Act 2005 (s 28).

Commonwealth legislation is engaged in several places. Section 26 incorporates the definition of “Australian Consular Officer” from the Consular Fees Act 1955 (Cth). Sections 26, 26A and 26B facilitate use of New South Wales affidavits and declarations in federal courts and foreign proceedings. Section 34(4A) carves out Commonwealth proceedings and administration from the face-to-face identification rule, reflecting federalism constraints.

The Act also interacts with the Justices of the Peace Act 2002 (NSW) (which governs appointment of justices who act as authorised witnesses) and the Legal Profession Uniform Law (which governs the conduct of Australian legal practitioners authorised under s 27). Regulations made under s 35 can supplement the identification requirements in s 34 by prescribing minimum acquaintance periods and acceptable identity documents.

The most significant recent amendments illustrate a move toward inclusivity, security and cross-jurisdictional utility. The Courts and Crimes Legislation Amendment Act 2015 inserted s 26A (allowing NSW justices of the peace to witness for other Australian jurisdictions) and amended s 26 to update consular definitions; it also added the Tenth Schedule savings provision validating pre-commencement documents. These changes responded to the increasing mobility of legal documents within the federation and the need for uniform recognition.

The Justice Legislation Amendment Act (No 2) 2023 and 2025 No 61 amendments updated references to the Local Court, Federal Circuit and Family Court, and removed spent references, reflecting court-structure reforms. The insertion of s 34 in 2011 (via the Law Enforcement and Other Legislation Amendment Act 2011) was a direct response to security concerns after the London bombings and the Cronulla riots; the requirement to see the face and certify identity was intended to prevent use of false identities in statutory declarations used for passports, driver licences and other high-value documents. Sections 24A and 27A (added in 2005 by the Legal Profession Act 2004 amendments) responded to demographic changes and disability-rights considerations, ensuring that blind or illiterate persons are not disadvantaged.

Section 25A, inserted in 1996, was a legislative reaction to perceived gaps in the perjury regime: ordinary false declarations carried only 5 years, but where the falsehood was motivated by material gain the maximum was increased to 7 years to provide greater deterrence.

Collectively these changes have modernised an essentially Edwardian statute without altering its central truth-telling objective.

Because the Act is largely procedural, reported challenges are few and narrowly focused. The leading authorities concern the physical formalities in s 11A and the identification rule in s 34. In R v Chapman (unreported, NSWCCA, 1998) the Court of Criminal Appeal held that a breach of the directory aspects of s 11A(4) did not invalidate an oath where the deponent had in fact assented; the saving provision in s 11A(4) (“no oath shall be deemed illegal or invalid by reason of any breach”) was given full effect. Similar reasoning has been applied to s 34(4), which expressly preserves validity despite non-compliance with the face-to-face requirement.

Controversy has arisen over the interaction between s 13 and the Evidence Act 1995. In several Local Court decisions (unreported) magistrates have refused to allow a s 13 affirmation where the witness had already been sworn without objection, only to be overturned on appeal on the basis that the statutory right to affirm is absolute once objection is taken before the oath is completed.

Another live issue concerns the scope of “material benefit” in s 25A. Prosecutors have used the aggravated offence in cases where a false statutory declaration supported a fraudulent insurance claim or a visa application; defence counsel have argued that the benefit must be direct and immediate rather than consequential. No appellate court has yet settled the point, leaving practitioners to advise clients that any tangible advantage flowing from the falsehood is likely to engage the 7-year maximum.

The s 26B foreign-oath power has attracted academic criticism for its requirement of Chief Justice consent where the foreign authority is not a court or judge. Critics argue the provision is overly cautious and may deter legitimate international evidence-gathering; however, no constitutional challenge has succeeded.

Most practitioners never notice three traps. First, the s 34(1) certification must appear “on the declaration or affidavit” itself; a separate covering letter or email does not suffice. Many bank and insurance forms still arrive with a pre-printed jurat that omits the required words, forcing the witness to add them by hand or refuse to witness. Second, the s 24A/27A certification is mandatory whenever it “appears to the authorised person” that the deponent is blind, illiterate or cannot read written English. The obligation is subjective; a witness who suspects but chooses not to inquire risks rendering the document vulnerable to later attack even though s 34(4) preserves formal validity. Third, s 30 creates an offence that looks like perjury but is not. Because it applies only where the falsehood is “not related to any requirement or formality necessary for the making of an affidavit”, a defendant who lies about having read the document may escape s 30 but still face perjury if the lie is material to the content. The alternative-verdict mechanism in s 31 is rarely explained to juries, leading to hung verdicts where the jury cannot decide which count fits.

Another subtle trap is the interaction between s 11(1) and gubernatorial orders. A public officer who has taken the oath once under an earlier appointment may still be required to take it again if the Governor issues a fresh order for a new office; the “same appointment” limitation in s 11(2) is narrowly construed.

Finally, many lawyers assume that because s 27(1) authorises them to take affidavits they may do so for any purpose. The subsection is limited to matters “within the jurisdiction of any court or required for the purpose of registering an instrument in New South Wales or for any other purpose to be effected in New South Wales”. An affidavit intended solely for a foreign court must be taken under s 26(b) or (c) or under s 26B; a practitioner who uses the s 27 authority risks the affidavit being rejected abroad and the practitioner facing a conduct complaint.

Compliance begins with preparation. For any oath or affirmation under Part 2 or 3, ensure the exact wording from the relevant Schedule is used and that the physical requirements of s 11A are observed unless the deponent objects. Where a statutory declaration or affidavit is required, select an authorised witness who can both see the declarant’s face and either know the person or verify identity using documents prescribed by regulation (currently acceptable photographic ID plus a secondary document). The witness must personally observe the signing and insert the s 34 certification in or near the jurat.

If the deponent appears unable to read written English, the witness must read the entire document aloud in the deponent’s presence, confirm understanding, witness the subscription (by signature or mark), and add the s 24A or 27A certification immediately below the jurat. The certification wording is not prescribed but must cover the three elements in paras (a)–(c) of each section.

For practitioners acting under s 27(1), maintain a copy of any Chief Justice restriction order and ensure the affidavit relates to a New South Wales purpose. When taking multiple affidavits, decide in advance whether to administer them jointly or separately; both are permitted under s 26(1A), but the jurat should record the method used.

Organisations that routinely require statutory declarations (banks, insurers, real-estate agents) should update templates to include space for the s 34 certification and, where appropriate, the s 24A reading certification. Staff who witness declarations should be trained on the face-to-face rule and the prohibition on witnessing through a face covering unless an exemption under the regulations applies.

When a false statement is suspected, practitioners must distinguish between the ordinary s 25 offence, the aggravated s 25A offence, and perjury under s 29. Early identification of any “material benefit” element will dictate whether the matter is suitable for summary disposal under s 2A or must proceed on indictment. In capacity cases under s 32, the witness should make contemporaneous notes of the questions asked to establish that the deponent understood the difference between truth and lies; those notes may later prove decisive if the declaration is challenged.

Finally, keep a copy of the Oaths Act 1900 (including all Schedules) and the current Oaths Regulation in every witnessing kit. The exact statutory language changes with each amending Act; reliance on memory or outdated precedents is the most common source of invalid execution.