Oaths Act 1936

The Act repeatedly relies on a small set of distinct legal concepts. These are defined by text and by function in the Act. Below are the core statutory concepts with their legal mechanics and cross‑references.

• Promissory oaths. The Act defines a suite of promissory oaths used to admit or condition officeholders’ duties. The statute identifies four named forms: the oath of allegiance (s 8), the official oath (s 9), the oath of fidelity (s 10) and the judicial oath (s 11). Section 4 collects the definitions used in Part 2, so references to these names in that Part mean the forms prescribed in the cited sections.

• Affirmations. The Act permits an affirmation in lieu of any promissory oath listed, including constitutional oaths (s 13). The form of an affirmation is prescribed to mirror the oath’s substantive words, excluding words of imprecation or calling to witness, and the attestation may follow the jurat of an affidavit with “affirmed” substituted for “sworn” (s 14). Persons authorised to administer oaths are, by s 15, authorised to take affirmations.

• Statutory declarations. Part 3 brings statutory declarations under a modern South Australian regime and preserves operation of the Imperial Statutory Declarations Act 1835 except to the extent of inconsistency (s 23). Section 25 conditions the validity of a statutory declaration on compliance with regulatory requirements and the code of practice published by the Minister under s 33. Schedule 1 cl 1 lists the persons before whom a statutory declaration may be made.

• Affidavits. Part 4 regulates affidavits for use in proceedings and other contexts. Section 27A requires affidavits to comply with any regulation and the rules of the relevant court, and to be taken in accordance with the Minister’s affidavit code of practice (s 27A(1)). Where court rules and regulations conflict, court rules prevail (s 27A(2)). Schedule 1 cl 2 lists persons authorised to take affidavits; s 28 lists Commissioners for taking affidavits and provides that matters sworn before certain persons are as valid as if sworn before the Supreme Court (s 28(2)).

• Authorised persons and Schedule 1. The Act constrains who may take statutory declarations and affidavits through Schedule 1. Statutory declaration attendants include Commissioners for taking affidavits, registered conveyancers, justices of the peace, police officers other than probationary constables, notaries public, and any class prescribed by regulation (Schedule 1 cl 1). The list for affidavits (Schedule 1 cl 2) is parallel.

• Codes of practice. Section 33 gives the Minister power to publish codes of practice in the Gazette for statutory declarations and affidavits. A code may be general or limited, may vary according to stated factors, may grant exemptions, and may impose requirements as to making statutory declarations or taking affidavits (s 33(2)). Non‑compliance with a code does not itself invalidate a declaration or affidavit where the non‑compliance does not materially affect the nature of the instrument (s 33(5)).

• Criminal offences and penalties. The Act creates offences for knowingly making false statutory declarations (s 27(1)), intentional false statements in affidavits (s 30), and taking oaths, affirmations or declarations without authority or misrepresenting authority (s 35). Penalties are expressed in maximum terms or monetary amounts in the Act text.

• Saving and interaction clauses. The Act contains multiple saving provisions that preserve pre‑existing statutory and constitutional provisions. Section 21 preserves the Constitution Act 1934 and other Acts that require particular oaths or attestations. Section 22 preserves rights that would have depended on taking an oath but that are affected by substitution under the Act. Section 23 preserves the 1835 Imperial Act subject to inconsistency.

• Procedural and evidentiary mechanisms. The Supreme Court is directed to take judicial notice of signatures of authorised persons (s 31). A person authorised under Schedule 1 has immunity for honest acts or omissions carrying out functions under this Act (s 36). Section 32 preserves validity against inadvertent and minor non‑compliance.

• Delegated law and discretion. The Governor’s regulation power is broad (s 37). Regulations may be general or limited, confer discretion on the Minister or other authority (s 37(2)(c)), and make saving or transitional provisions (s 37(2)(d)). Codes of practice published by the Minister can be varied or revoked by subsequent Gazette notice (s 33(3)‑(4)). These delegated instruments therefore carry procedural effects and may alter practical duties without amending the Act.

Each of these concepts is expressed in the Act as a legal mechanism: a prescribed form (s 8-11, s 14), a statutory substitute (s 18), a mandatory administrative step (s 25, s 27A), an authorisation list (Schedule 1) and criminal or administrative enforcement (ss 27, 30, 35). Where a potential conflict between regulatory instruments and court rules exists, the Act sets a priority rule for affidavits: court rules prevail over regulations (s 27A(2)).

The Act regulates a defined set of persons by role or function, and it also imposes obligations or creates rights that affect private individuals, officeholders, authorised officers, regulators and courts. The parties affected and the statutory mechanics are as follows.

• The Governor. The Governor must take the oath of allegiance and the official oath after acceptance of office, in the presence of the Chief Justice or Acting Chief Justice (s 5). The Master of the Supreme Court or the associate to the Chief Justice tenders those oaths (s 5(2)).

• Members of the Executive Council. Members must, as soon as practicable after acceptance of office, take the oath of allegiance, the official oath and the oath of fidelity before the Governor in Council (s 6(1)‑(2)). Section 6(3) limits repetition, providing a person need not take the oath of allegiance or oath of fidelity more than once in the term of a Parliament.

• Ministers not members of the Executive Council and Parliamentary Secretaries. These officeholders must take the oath of allegiance and official oath before the Governor as soon as practicable after accepting office (s 6A). Section 6A(2) also limits the need to take the oath of allegiance more than once per Parliament.

• Judicial officers. Chief Justice, President, puisne judges, Masters, Judicial Registrars of the Supreme Court; Chief Judge, other Judges, Masters and Judicial Registrars of the District Court; Magistrates and Judicial Registrars of the Magistrates Court; and justices of the peace, must take the oath of allegiance and the judicial oath before discharging official duties (s 7(1)). The section specifies who is to administer these oaths depending on the judicial office (s 7(2) and following). Section 7(4) refers to the Justices of the Peace Act 1991 for the way in which justices of the peace take oaths.

• Persons seeking membership, employment or privilege that otherwise required an oath. The Act substitutes declarations for oaths in cases not otherwise provided for (s 18), so private individuals seeking admission to professional bodies, company offices or other privileges that formerly required an oath are affected by the substitution (s 18(1)‑(2)). If a person declines to make a required declaration, they face the same penalties or disabilities that would have applied to declining to take the oath (s 19).

• Persons making statutory declarations and affidavits. Any person who makes a statutory declaration must comply with regulatory requirements and the Ministerial code of practice for statutory declarations (s 25(1)(a)‑(b)). Affiants must comply with regulations, court rules and the code of practice for affidavits (s 27A(1)).

• Persons authorised to take oaths, affirmations, statutory declarations or affidavits. The Act authorises specified categories in Schedule 1 and additional classes by regulation (Schedule 1 cl 1(f), cl 2(e)). Those authorised persons gain both power and, where they act honestly under the Act, immunity from civil or criminal liability (s 36).

• Courts and court officers. The Supreme Court and its officers are required to take judicial notice of signatures of persons before whom affidavits, declarations and affirmations are authorised to be made (s 31). The rules of the relevant court prevail over inconsistent regulations for affidavits (s 27A(2)), and the Part dealing with statutory declarations does not apply to oaths in judicial proceedings (s 24).

• The Minister and the Governor. The Minister is empowered to publish codes of practice (s 33) and to grant exemptions under those codes (s 33(2)(c)). The Governor makes regulations under s 37 and may delegate or create discretionary structures in regulations (s 37(2)(c)). Both offices thus influence implementation and administrative practice.

• Employers, professional bodies, and corporations. The substitution of declarations for oaths (s 18) alters the mechanics for bodies that previously required oaths as conditions of membership, fellowship or employment. Those entities will receive declarations of equivalent legal effect instead of oaths and must accept them because s 18(2) grants the declaration the same legal effect as the former oath.

• Persons who might be prosecuted for false statements. Section 27 applies to statutory declarations made under Part 3 and creates a maximum penalty of four years imprisonment for willfully making a material false declaration. Section 30 provides a maximum penalty of seven years for intentionally making a false statement in an affidavit. Section 35 criminalises knowingly taking an affidavit, affirmation or declaration without authority, and misrepresenting authority to take them.

Overall, the Act reaches public officeholders, judicial officeholders, persons who make statutory declarations or affidavits, those authorised to administer them, the Minister and Governor as regulators, and organisations that previously conditioned membership or employment on oaths. The Schedule 1 lists categories of authorised persons and identifies mechanisms by which the class of authorised persons may be expanded by regulation, thereby affecting more actors in practice.

The Act establishes specific duties and confers rights that govern the making, administration and legal effect of oaths, affirmations, statutory declarations and affidavits. The key duties and rights are set out below with statutory references.

Duties tied to office and admission

• Take the prescribed oaths. The Governor must take the oath of allegiance and official oath after acceptance of office, in the presence of the Chief Justice or Acting Chief Justice (s 5). Members of the Executive Council must take the oath of allegiance, official oath and oath of fidelity before the Governor in Council, with the Clerk of the Executive Council tendering those oaths (s 6(1)‑(2)). Ministers not members of the Executive Council and Parliamentary Secretaries must take the oath of allegiance and official oath before the Governor (s 6A).
• Judicial officers must take the oath of allegiance and judicial oath before commencing duties (s 7(1)). The Act specifies who may administer the oath depending on judicial rank (s 7(2), s 7(4)). A person appointed to act on an auxiliary basis is exempt if they have already taken the oath under this Act (s 7(5)).

Right to substitute affirmation; form and administration

• Right to affirm. Any person may make an affirmation in lieu of the promissory oaths identified in the Act, including the constitutional oath (s 13).
• Form of affirmation. Affirmations must commence “I, … do truly and solemnly affirm” and otherwise follow the words of the oath while omitting invocatory language; attestation may employ the jurat of an affidavit with “affirmed” replacing “sworn” (s 14).
• Authority to take affirmations. Persons authorised to administer oaths are also authorised to take affirmations (s 15).

Substitution of declarations

• Declarations in lieu. Where an oath is required for admission to membership, fellowship, participation or employment and the matter is not otherwise provided for in the Part, a declaration must be taken instead of the oath (s 18(1)). A declaration under s 18 has the same legal effect as the oath it replaces (s 18(2)).
• Saving of powers to alter. Where an oath would otherwise be alterable under some power, an equivalent power to alter a substituted declaration exists (s 20).

Consequences for refusing

• Vacatur or disqualification. If a person declines or neglects to take an oath or affirmation duly tendered under Part 2, they must vacate any office already entered upon and, if not yet entered, they are disqualified from entering it (s 16). The Act limits the compulsion to be once per parliamentary term for certain oaths (s 6(3), s 6A(2)).

Statutory declaration and affidavit obligations

• Statutory declaration compliance. A statutory declaration under Part 3 is valid only if it complies with requirements prescribed by regulation and with the Minister’s code of practice for statutory declarations (s 25(1)(a)‑(b)). The persons listed in Schedule 1 cl 1 may be the persons before whom statutory declarations may be made (s 25(2)).
• Affidavit compliance. Affidavits must comply with regulations and the rules of the relevant court, and must be taken in accordance with the Minister’s affidavit code of practice (s 27A(1)). If regulations and court rules conflict, the court rules prevail (s 27A(2)). Schedule 1 cl 2 lists persons authorised to take affidavits (s 27A(3)).

Fees

• Fees apply where a declaration substitutes an oath. When a declaration is made under Part 3 in lieu of an oath or affirmation, any fees that would have been payable for the oath or affirmation are payable for the declaration (s 26).

Criminal duties and prohibitions

• False statutory declarations. Intentionally making a material false declaration under Part 3 is an offence carrying a maximum penalty of four years imprisonment (s 27(1)). The Act narrows a potential defence: if a court is satisfied the defendant knew he was required to declare belief in the declaration’s truth, it is not a defence that the declaration was not duly made or did not comply with s 25 (s 27(2)).
• False affidavit statements. A person who intentionally makes a false statement in an affidavit is guilty of an offence, with a maximum penalty of seven years imprisonment (s 30).
• Unauthorised taking and misrepresentation. Knowingly taking an affidavit, affirmation or declaration without authority is an offence (s 35(1)), with prescribed maximum penalties. A person not authorised must not represent that they are authorised to take these instruments (s 35(2)).

Rights and immunities

• Immunity for authorised persons. A person authorised under Schedule 1 incurs no civil or criminal liability for an honest act or omission in carrying out or purporting to carry out functions under this Act (s 36).
• Protection for minor non‑compliance. Instruments are not invalid merely because of inadvertent and minor non‑compliance that does not materially affect their nature (s 32). Similarly, failure to comply with a code of practice does not invalidate a declaration or affidavit if non‑compliance is not material (s 33(5)).

Procedural rights and court mechanisms

• Judicial notice. The Supreme Court is required to take judicial notice of the signature of every person before whom affidavits, declarations and affirmations are authorised under the Act, if that signature is subscribed to any instrument taken under the Act (s 31).
• Priority of rules. For affidavits, where regulations and rules of the relevant court are inconsistent, court rules prevail (s 27A(2)).

Delegation and administrative rights

• Codes and regulations. The Minister may publish, vary and revoke codes of practice (s 33(1)‑(4)). The Governor may make regulations, including provisions delegating discretionary determinations to the Minister or another authority (s 37(2)(c)). Codes may grant exemptions (s 33(2)(c)).

These duties and rights define a structured process for establishing the legal validity of oath‑based acceptance of office, statutory declarations used outside courts, and affidavits used in courts. They marry statutory prescriptions with delegated administrative instruments, and they set criminal sanctions for knowing falsehoods and unauthorised acts while furnishing limited immunities for honest exercise of statutory functions.

The Act establishes several criminal offences and prescribes penalties, while also providing administrative mechanisms for enforcement and safeguards for lawful administrators. This section summarises the statutory enforcement architecture and the specific penalties.

False statutory declarations

• Section 27(1) makes it an offence to wilfully make any declaration under Part 3, knowing it to be untrue in any material particular. The maximum penalty for that offence is imprisonment for any term not exceeding four years.
• Section 27(2) reduces potential defences. Where the court is satisfied the defendant knew that he was required to declare his belief in the truth of the declaration, it is expressly not a defence that the declaration was not duly made or did not comply with s 25. This narrows procedural defences for defendants in prosecutions under s 27(1).

False statements in affidavits

• Section 30 creates an offence for intentionally making a false statement, orally or in writing, in an affidavit. The maximum penalty for this offence is seven years imprisonment. The text of s 30 does not specify lesser alternatives; the maximum demonstrates the serious penal character attached to false statements in affidavits.

Unauthorised administration and misrepresentation

• Section 35(1) penalises a person who knowingly takes an affidavit, affirmation or declaration without authority, with a maximum penalty of $10,000 or six months imprisonment. The Act therefore criminalises impersonation of authorised officers or deliberate unauthorised administration.
• Section 35(2) penalises a person who is not authorised to take an affidavit, affirmation or declaration for representing that they are so authorised. The maximum penalty is $1,500. This addresses misrepresentation short of actually administering an instrument.

Administrative and evidentiary reinforcement

• Fees. Section 26 provides that fees that would have been payable for an oath or affirmation are payable when a declaration substitutes for an oath. This preserves administrative revenue or fee structures attached to formal attestation.
• Judicial notice. Section 31 requires the Supreme Court and its officers to take judicial notice of the signatures of every person authorised under the Act, if that signature is subscribed to any instrument taken under this Part. This creates evidentiary facilitation for instruments executed under the Act and streamlines court proceedings where an authorised person’s signature appears.
• Minor non‑compliance protection. Section 32 protects instruments from invalidity caused by inadvertent and minor non‑compliance that does not materially affect the nature of the instrument, reducing the scope for technical invalidation.
• Codes of practice non‑compliance. Section 33(5) extends similar protection where a declaration or affidavit fails to comply with a code of practice, again subject to materiality.

Immunity for authorised persons

• Section 36 provides that an authorised person incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out functions under the Act. This immunity reduces legal exposure for commissioners, justices of the peace, notaries and the other categories in Schedule 1 when they act honestly.

Delegated enforcement instruments

• The Governor may make regulations under s 37, and regulations may confer discretion on the Minister or another prescribed authority (s 37(2)(c)). Codes of practice may grant exemptions and may be varied by the Minister (s 33(2)(c), s 33(3)), creating administrative levers to shape enforcement and compliance expectations without further primary legislation.

Prosecutorial and practical risks created by the Act

• The Act attaches prison penalties to knowing material falsehoods in statutory declarations and affidavits (ss 27(1) and 30), which places responsibility on signatories to ensure truthfulness. It also places criminal liability on unauthorised administrators (s 35), and prevents certain procedural defences in prosecutions for false declarations (s 27(2)). At the same time, s 36 and ss 32-33(5) create protections against opportunistic or technical contestation by protecting honest administrators and instruments with minor non‑material defects.

The Act therefore couples serious criminal sanctions for intentional falsehoods and unauthorised acts with procedural and statutory protections designed to preserve the utility and finality of duly taken instruments while enabling administrative flexibility via regulations and Ministerial codes.

The Act contains several express provisions that describe its relationship to other Commonwealth, Imperial and State legislation, and it also creates mechanisms that affect statutory requirements in other Acts. The interaction rules in the text include saving clauses, conflict rules, and substitution devices.

Imperial Act and statutory declarations

• Section 23 expressly preserves the operation within the State of the Imperial Statutory Declarations Act 1835 (5 & 6 Wm. 4 c. 62), commonly called the Statutory Declarations Act 1835, except insofar as the provisions of Part 3 are inconsistent with that Imperial Act. The Act therefore does not entirely supersede the Imperial statute but yields where Part 3 diverges.

Judicial proceedings

• Section 24 expressly states that Part 3 does not apply to any oath, affirmation or affidavit that may be made or taken, or be required to be made or taken, in judicial proceedings in any court of justice, or in any proceeding for or by way of summary conviction before any justice. This creates a carve-out: the statutory declaration regime in Part 3 is not intended to govern judicial oaths and affidavits used in court proceedings.

Priority of court rules over regulations for affidavits

• Section 27A(2) provides an explicit conflict rule for affidavits: if an inconsistency exists between requirements prescribed by regulations and requirements set out in the rules of the relevant court, the court rules prevail and the regulations do not apply to the extent of the inconsistency. This gives court procedural rules primacy over subordinate regulations in relation to affidavits.

Saving of other Acts and particular forms

• Section 21 lists specific matters that the Part shall not affect, including the Constitution Act 1934 or any Act specially requiring a particular form of oath, any oath required for attesting or verifying accounts or documents under an Act, and any oath required to be taken by a juror, witness or other person pursuant to any Act or custom as preliminary to or in the course of any judicial or quasi‑judicial proceeding. The effect is that where another Act prescribes a particular oath, that prescription remains in force.

Substitution power and rights dependent on oaths

• Section 18 substitutes declarations for oaths in many private settings where an oath is required for admission to an organisation, office or employment, and s 18(2) equates the legal effect of the substituted declaration to that of the oath. Section 20 saves and preserves any power to alter the original oath such that the same power may be exercised with regard to the substituted declaration.
• Section 22 preserves rights that would have depended on taking an oath where the Act prevents fulfillment of that condition by substitution. A person who complies with the other conditions will be entitled to the office, privilege or benefit as if the oath condition had been fulfilled.

Cross‑Act compliance by using authorised persons

• Section 34 provides that if another Act requires a declaration to be made before a specified class of person or that an instrument be signed or executed in the presence of or attested by a specified class of person or authority, the requirement is taken to have been complied with if the declaration or attestation is made before, or the instrument is signed or attested in the presence of, a person specified in Schedule 1 cl 1. This permits Schedule 1 persons to satisfy formal requirements in other statutes, reducing the need to trace legacy lists of authorised officers across separate Acts.

Regulatory delegation and saving / transitional matters

• Section 37(2)(d) permits regulations to make provisions of a saving or transitional nature consequent on the enactment of amendments to this Act or on the repeal of the Evidence (Affidavits) Act 1928 or on the making of regulations under this Act. This anticipates legislative change and affords delegated law the capacity to manage transitions in formalities that other Acts reference.

Codes and ministerial instrument interaction

• Codes of practice published under s 33 carry requirements relating to making statutory declarations or taking affidavits. However, s 33(5) and s 32 protect instruments from invalidity when failure to comply with a code or a minor non‑compliance does not materially affect the nature of the declaration or affidavit. This creates a layered compliance scheme where codes can set procedural detail but substantial compliance suffices to preserve legal effect.

Amendment history and restatements

• The legislative history shows successive amendments that may have altered how this Act interacts with other laws, for example repeals of earlier Acts and substitution of provisions. Section headings and material amendments listed in the history show the Act has been the mechanism by which several prior statutes were superseded, and several amendments have updated the roster of authorised persons and procedural rules.

In short, the Act is designed to coexist with pre‑existing statutes establishing judicial and constitutional oaths, to provide a default substitution mechanism for private and corporate oath requirements, to funnel formal compliance for other Acts through Schedule 1 authorised persons, and to give court rules priority over regulations for affidavit procedure. The Act also delegates much detailed procedural specification to regulations and Ministerial codes, which may affect how other statutes’ formal requirements are met in practice.

The Act’s legislative history is explicitly recorded in the schedule of amendments within the provided text. The principal Act received assent and commenced on 3 September 1936. The Act has been amended repeatedly. This section summarises the amendments and the mechanical changes they effected as recorded in the source.

Key dates and amendments

• 1936: Oaths Act 1936 enacted, assented 3.9.1936, commenced 3.9.1936. This is the principal Act.
• 1968: Oaths Act Amendment Act 1968 (No 24), assented 5.12.1968, commenced 5.12.1968.
• 1969: Oaths Act Amendment Act 1969 (No 41), assented 13.11.1969, commenced 13.11.1969.
• 1981: Statutes Amendment (Administration of Courts and Tribunals) Act 1981 (No 34), assented 19.3.1981, some provisions commenced 1.7.1981. Section 7(1) was substituted by this Act.
• 1983: Oaths Act Amendment Act 1983 (No 53), assented 16.6.1983, some provisions commenced 1.7.1983; s 28 was substituted by this Act.
• 1984: Statutes Amendment (Oaths and Affirmations) Act 1984 (No 56), assented 24.5.1984, commenced 1.7.1984.
• 1993: Statutes Amendment (Courts) Act 1993 (No 62), assented 27.5.1993; s 7(4) commenced 1.7.1993.
• 1994: State Bank (Corporatisation) Act 1994; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (No 59), assented 27.10.1994 with commencement 1.1.1995 for relevant parts.
• 1996: Statutes Amendment (Attorney‑General's Portfolio) Act 1996 (No 67), assented 15.8.1996; ss 23 & 24 commenced 17.10.1996.
• 1997: Statutes Amendment (References to Banks) Act 1997 (No 30), assented 12.6.1997; Pt 10 (ss 12,16) commenced 3.7.1997. Statutes Amendment (Ministers of the Crown) Act 1997 (No 69), assented 11.12.1997; Pt 5 (s 10) commenced 17.12.1997. Section 6A was inserted by the 1997 Act and redesignated in 1998.
• 1998: Statutes Amendment (Attorney‑General's Portfolio) Act 1998 (No 59), assented 3.9.1998; Pt 7 (ss 11,16) commenced 13.12.1998. Section 6(3) inserted by this Act.
• 1999: Financial Sector Reform (South Australia) Act 1999, assented 17.6.1999; consequential changes noted.
• 2002: Constitution (Parliamentary Secretaries) Amendment Act 2002 (No 29), assented 7.11.2002; came into force 7.11.2002 and amended s 6A(1).
• 2003: Statute Law Revision Act 2003 (No 44), assented 23.10.2003; Sch 1 commenced 24.11.2003.
• 2004: Oaths (Judicial Officers) Amendment Act 2004 (No 44), assented 18.11.2004; amended s 7 and s 28 provisions as recorded.
• 2005: Oaths (Abolition of Proclaimed Managers) Amendment Act 2005 (No 8), assented 21.4.2005; staged commencements for provisions.
• 2006: Statutes Amendment (Justice Portfolio) Act 2006 (No 44), assented 14.12.2006; s 34 Pt 20 commenced 18.1.2007.
• 2016: Statutes Amendment (South Australian Employment Tribunal) Act 2016 (No 63), assented 8.12.2016; Pt 16 (s 121) commenced 1.7.2017.
• 2017: Statutes Amendment (Judicial Registrars) Act 2017 (No 10), assented 11.4.2017; Pt 4 (ss 30 & 31) commenced 23.5.2017.
• 2019: Supreme Court (Court of Appeal) Amendment Act 2019 (No 45), assented 19.12.2019; Sch 1 cl 69 commenced 1.1.2021.
• 2020: Statutes Amendment (Attorney‑General's Portfolio) Act 2020 (No 34), assented 1.10.2020; Pt 4 (s 10) commenced 1.10.2020.
• 2021: Oaths (Miscellaneous) Amendment Act 2021 (No 31), assented 2.9.2021; Pt 2 (ss 4 to 11) commenced 1.12.2021. Significant changes include substitution of Part 5 (s 11 indicates Pt 5 substituted by the 2021 Act) and insertion of s 27A and Schedule 1 by that Act, both commencing 1.12.2021.

Mechanics of notable substantive amendments as recorded in the notes

• Section 6A was inserted by the Statutes Amendment (Ministers of the Crown) Act 1997 and redesignated in 1998; it created a specific duty for Ministers not members of the Executive Council and Parliamentary Secretaries to take oaths before the Governor (s 6A(1)).
• Section 7 has been the subject of multiple substitutions and amendments (1981, 1996, 2004, 2017 and 2019 amendments recorded) modifying who must take oaths and the procedures for taking them, including adding Judicial Registrars and altering who may administer oaths.
• Section 25 was substituted by the 2021 Act (s 5 of that amending Act), altering the statutory declaration mechanics and linking them expressly to the code of practice published by the Minister (s 25(1)(b)).
• Part 4 (affidavits) saw the insertion of s 27A by the 2021 Act (s 8), adding a formalised statutory framework tying affidavits to regulations, court rules and a Ministerial code of practice, and setting a conflict rule where court rules prevail (s 27A(2)).
• Schedule 1 was inserted by the 2021 Act (s 11) and now provides the contemporary list of authorised persons for statutory declarations and affidavits.

The legislative history contained in the provided text shows extensive incremental updates to align the Act with changes in court organisation, the list of authorised persons, and the administrative delegation to Ministers. Each amendment record in the source ties to precise substitution or insertion dates; the Act’s present structure and the presence of s 27A and Schedule 1 reflect the 2021 amendments that modernised the affidavit/statutory declaration regime and the delegation to codes of practice.

The provided statute text does not include citations of court decisions that interpret or apply the Oaths Act 1936. The legislative text records amendments and historical versions but does not record case law. The statutory provisions that anticipate judicial involvement and give courts evidential tasks are, however, present and relevant to litigation.

Relevant judicial interaction embedded in the Act

• Exclusion from Part 3 for judicial proceedings. Section 24 states that Part 3 does not apply to any oath, affirmation or affidavit made or required in judicial proceedings. This clause limits the direct operation of the statutory declaration provisions where judicial procedure governs the oath or affidavit.
• Priority of court rules. Section 27A(2) provides that, for affidavits, if an inconsistency exists between requirements prescribed by regulations and requirements set out in the rules of the relevant court, the court rules prevail. This establishes a statutory preference for court procedural rules in judicial contexts and would be a central provision in any litigation concerning affidavit form or procedure.
• Judicial notice of signatures. Section 31 directs the Supreme Court and its officers to take judicial notice of the signature of every person before whom affidavits, declarations and affirmations are authorised to be made, if the signature is subscribed to any instrument taken under this Act. This provision has a direct evidentiary consequence in litigation where the signature of an authorised person appears on an affidavit or statutory declaration.

Absence of case law in source

• The provided text contains no cases, citations or summaries of judicial interpretation. The Act does not list appellate or trial decisions applying or construing its provisions in the legislative history section. Therefore, from the source alone, no litigation history can be recited.

Practical implication for litigators and researchers

• Because the Act expressly defers to court rules for affidavits (s 27A(2)) and requires courts to take judicial notice of authorised signatures (s 31), litigation concerning affidavit admissibility, form, or authenticity is likely to turn on court rules, procedural practice and evidence law. Any authoritative judicial construction of the Act’s criminal provisions (ss 27, 30, 35) or of the scope of Schedule 1 authorisations would be found in court decisions, but those are not included in this source. Users should therefore consult contemporaneous case law and court rules of the relevant jurisdiction to see how courts have treated affidavits, statutory declarations and the Act’s offences in specific factual scenarios.

In sum, the statute itself sets out the legal interface with courts, but the provided text contains no recorded litigation history. Any interpretation questions or disputes about application in concrete cases would need to be informed by decisions and court practice, which are outside the immediate content of the Act as supplied.

The Act contains several technical features and potential traps for users who rely on oaths, declarations and affidavits. Below are concrete points to watch for when operationalising or litigating under the Act, with precise statutory references.

Archaic phrasing in prescribed forms and substitution

• The prescribed oath forms in ss 8-11 refer in text to "His Majesty, King Edward the Eighth". Section 12 resolves this by requiring substitution of the name of the Sovereign for the time being "as occasion requires" (s 12). Practitioners should not mechanically copy the printed forms without applying s 12; failure to update the Sovereign’s name could create questions about literal compliance with the prescribed form.

Limited compulsion to re‑swear in a Parliament

• Sections 6(3) and 6A(2) provide that certain oaths (oath of allegiance, oath of fidelity) need not be taken more than once during the term of any Parliament. This limits repetition but may be overlooked where officeholders change portfolios or roles within the same Parliament. The Act does not make identical concessions for other oaths; ensure which oath is in question before assuming the repeat‑taking rule applies.

Substitution applies widely but not universally

• Section 18 substitutes declarations for oaths "in any case not otherwise provided for by this Part" where an oath is required for membership, fellowship or employment. However, s 21 preserves the Constitution Act 1934 and "any Act specially requiring any particular form of oath to be taken." Where another Act prescribes a particular form, substitution is not automatic. Users must check relevant statutes to confirm whether the other Act's requirement is "special" and thus preserved by s 21.

Effect of refusing to take an oath or declaration

• Section 16 provides that a person who declines or neglects to take an oath or affirmation must vacate that office if already entered on it and is disqualified from entering on it if not yet in office. This is a rigid mechanical consequence. A person who prefers not to adopt the prescribed religious invocation must rely on s 13 (affirmation in lieu) rather than refusal; otherwise they risk vacatur or disqualification.

Criminal risk attached to declarations and affidavits

• The Act places severe penalties on material falsehoods: up to four years imprisonment for a wilful, materially false statutory declaration (s 27(1)), and up to seven years for intentional falsehood in an affidavit (s 30). Section 27(2) further restricts defences by ruling that, where the court is satisfied the defendant knew of the requirement to declare belief in the truth of the declaration, it is not a defence that the declaration was not duly made or did not comply with s 25. The message is that signatories face substantial criminal exposure for deliberate material falsehoods and that procedural defects in how the declaration was taken may not be an effective defence.

Regulatory and code of practice complexity

• Statutory declarations must comply with regulatory requirements and the Minister’s code of practice (s 25(1)(a)‑(b)). Affidavits must comply with regulations, court rules and the Minister’s affidavit code (s 27A(1)). The Act contemplates potential inconsistencies between regulations and court rules and resolves them by preferring court rules (s 27A(2)). Practitioners must check not only primary legislation but also current regulations, the Minister’s codes as published in the Gazette, and relevant court rules to ensure compliance. A code of practice may grant exemptions (s 33(2)(c)), which introduces administrative discretion to the compliance landscape.

Schedule 1 and delegated expansions

• Schedule 1 lists persons before whom statutory declarations may be made and persons authorised to take affidavits (Schedule 1 cl 1 and cl 2). But both clauses include "any other person of a class prescribed by regulation" (Schedule 1 cl 1(f) and cl 2(e)). The class of authorised persons is therefore expandable by regulation. Reliance on an authorised person requires checking the current regulations to confirm whether a given person remains authorised.

Evidentiary presumptions and reliance

• Section 31 mandates the Supreme Court take judicial notice of an authorised person’s signature when subscribed to an instrument taken under this Part. However, that judicial notice applies to the Supreme Court and its officers; other courts may not be subject to the same statutory directive. Practitioners should not assume identical presumptions in other fora without checking applicable rules.

Minor non‑compliance and materiality tests

• Sections 32 and 33(5) protect instruments against invalidity caused by inadvertent or minor non‑compliance, or failure to comply with a code of practice, provided the non‑compliance does not materially affect the nature of the instrument. The Act leaves "materiality" unresolved; that factual and legal test can create litigation risk where an opponent argues non‑compliance was material. Users should therefore document steps taken to achieve compliance and, where possible, cure defects promptly.

Authority to take and representation offences

• Section 35 creates two distinct offences: knowingly taking an instrument without authority (s 35(1)) and representing to be authorised when not (s 35(2)). A person who is authorised under a particular Act but not authorised under the Oaths Act may risk exposure by taking instruments if they have not ensured their authority aligns with Schedule 1 or regulations. Conversely, representing authority when none exists carries a lesser monetary penalty but still creates criminal exposure.

Delegated discretion and potential uncertainty

• Regulations may confer discretionary determinations to the Minister or another prescribed authority (s 37(2)(c)) and codes of practice may provide exemptions (s 33(2)(c)). These delegated powers mean administrative practice can change independently of primary legislation, creating potential uncertainty for practitioners relying on previously settled administrative rules.

Absence of litigation guidance in the source

• The Act text provided contains no cases or judicial interpretations. Questions about the application of the “materiality” standard, the scope of immunity under s 36, the boundary between instruments governed by s 24 and those governed by Part 3, or how courts have applied ss 27 and 30 will require searching case law beyond the text of the statute.

In summary, the practical pitfalls are: literal reliance on the printed oath forms without applying s 12; the risk of vacatur or disqualification from office for refusal to take an oath without using s 13 affirmations; criminal exposure for knowing falsehoods; the need to check current regulations and Ministerial codes because the Act delegates significant detail; and the possibility of disputes about materiality of non‑compliance where the Act protects instruments that are only substantially compliant.

This section provides a practical, source‑grounded checklist for entities and individuals who must rely on, administer, or accept oaths, affirmations, statutory declarations or affidavits under the Act. Each step is tied to the relevant statutory provision.

1. Identify applicable instrument and statutory regime

• Determine whether the instrument required is a promissory oath (Part 2), a statutory declaration (Part 3) or an affidavit (Part 4). If the instrument is required in judicial proceedings, note that Part 3 does not apply to judicial oaths and affidavits (s 24).

2. Use the correct form and update the Sovereign reference

• For promissory oaths, use the substance of the prescribed forms in ss 8-11, but apply s 12 to substitute the current Sovereign’s name. Do not replicate the archival reference to King Edward the Eighth without substitution.

3. Offer and accept affirmation where appropriate

• If the person objects to taking an oath, offer an affirmation instead as permitted by s 13 and apply the form in s 14, which mirrors the substantive words of the oath but omits invocatory language. Ensure persons authorised to administer oaths are performing the affirmation (s 15).

4. Confirm who must take which oath and when

• Check whether the person’s office is covered by s 5 (Governor), s 6 (Executive Council members), s 6A (Ministers not in Executive Council and Parliamentary Secretaries), s 7 (judicial officers). Observe the timing requirements: "as soon as may be" or "as soon as practicable" after acceptance of office (ss 5, 6, 6A). Note the one‑time per Parliament limitation for selected oaths (s 6(3), s 6A(2)).

5. For statutory declarations, follow regulations and code of practice

• Section 25 requires a statutory declaration to comply with any regulatory requirements and the Minister’s statutory declarations code of practice. Before accepting a statutory declaration, check the current regulations and the latest Gazette notice publishing the Minister’s code under s 33(1)(a). Where the code imposes specific steps, ensure they are performed, or look for an applicable exemption granted under s 33(2)(c).

6. For affidavits, follow court rules, regulations and code of practice

• Section 27A requires affidavits to comply with regulations, the rules of the relevant court and the Minister’s code of practice for affidavits. Crucially, if regulations and court rules conflict, the court rules prevail (s 27A(2)). Practitioners preparing affidavits must therefore check applicable court rules first, then regulations, and then the Minister’s code.

7. Use authorised persons from Schedule 1 and current regulations

• Statutory declarations must be made before persons listed in Schedule 1 cl 1 (s 25(2)), and affidavits must be taken by persons in Schedule 1 cl 2 (s 27A(3)). Both clauses include a residual “any other person of a class prescribed by regulation” (Schedule 1 cl 1(f) and cl 2(e)), so confirm whether a person’s class has been added or removed by regulation. Do not assume a person’s continuing authority without checking current regulations.

8. Maintain documentary and signature records

• Because the Supreme Court must take judicial notice of signatures of authorised persons (s 31), preserve original signed documents and confirm the authorised person’s signature. This supports evidentiary reliability and reduces challenges based on signature authenticity.

9. Fee handling

• If a declaration substitutes for an oath or affirmation, collect any fees that would have been payable for the oath or affirmation (s 26). Ensure a transparent fee record consistent with any administrative practice.

10. Prevent and detect false statements

• Communicate the criminal penalties for materially false statutory declarations (s 27(1)) and intentionally false statements in affidavits (s 30). Implement verification steps where declarations or affidavits are material to decisions. Remember s 27(2) limits certain procedural defences in prosecutions for false statutory declarations.

11. Avoid unauthorised taking or misrepresentation

• Ensure that anyone purporting to take an affidavit, affirmation or declaration is authorised under Schedule 1 or by regulation. Section 35 makes it an offence to knowingly take such instruments without authority and to represent that one is authorised when not. Train local staff and contracted providers accordingly.

12. Use codes of practice and seek exemptions where necessary

• Codes published by the Minister (s 33) may impose procedural requirements