Oaths, Affidavits and Declarations Act 2010

Who is affected and who makes the key decisions

• People required or choosing to take an oath, make an affidavit, or make a statutory or unattested declaration (see ss5, 14, 18–21). These people must follow the form and procedural steps set out in the Act (for example, signing each page, making required statements, identifying attachments) (ss14(2)–(6), 19(2)–(5)).

• Witnesses and authorised witnesses (justice of the peace, commissioner for oaths, certain out‑of‑Territory officials, consular officials, Defence Force officers, and others authorised by law) who must verify identity, witness signatures or recordings and record contact details (ss7, 15, 19(5), 20(5), 24(2)).

• The Minister decides appointments of commissioners for oaths under s23(2) and must be satisfied an appointee is "fit and proper", having regard to prior convictions and other matters the Minister considers relevant (s23(2)–(4)).

• Courts and tribunals exercise discretion in administering oaths, judging competence of witnesses who cannot understand an oath, and applying the minor non‑compliance provision where appropriate (ss8, 28, 24A).

Why this matters (claimed purpose and how it changes behaviour)

• The Act standardises language and formal steps for swearing and declaring in order to create predictable legal form and evidentiary quality (see ss5–6, 14, 18–21). It explicitly permits remote and electronic processes (audiovisual links and electronic signatures) in multiple places (e.g. ss9(2), 14(6A), 19(6), 20(4), 21A, 24(3)), which is presented in the text as an alternative to physical presence.

• Mechanically, those changes reduce the need for physical presence: authorised witnesses may observe oaths or signatures by audiovisual link (s9(2), s28A), scanned or electronic copies may be used when witnesses sign (ss14(6A), 19(6), 24(3)), and whole statutory declarations can be recorded (s20). That shifts effort and costs from in‑person logistics to ensuring audio/visual access and secure electronic handling.

Testing those claims against costs, incentives and trade‑offs (mechanical effects, not value judgements)

• Compliance costs and behaviour: The Act keeps detailed formal requirements (signatures on each page, statements of truth, witness contact details) (ss14(5)(a)–(c), 14(6)(a)–(d), 19(2)–(5)). People making affidavits or declarations still bear the administrative task of producing properly formed documents; witnesses must verify identity and sign as prescribed (ss14–15, 19). Electronic options do not remove these tasks but change how they are performed (ss14A, 21A, 24(3)).

• Incentives for remote or electronic process: Allowing audiovisual links and electronic signatures reduces the logistical burden of physical meetings for many users (ss9(2), 14A, 21A). That creates an incentive for parties to use remote technology where available. It also shifts verification duties toward witnesses (they must be satisfied the person signed/was heard; s28A(2)).

• Compliance risk and implementation burden: Remote witnessing requires reliable audio/visual equipment and practices (s28A); use of scanned or electronic copies is expressly allowed but must be disclosed in the document where required (ss14(6A)(b), 19(6)(b)). Those requirements mean parties must keep records and include statements about the manner of making the document (ss14(6A)(b)(i)–(ii), 19(6)(b)(i)–(ii), 20(3)–(5)).

• Enforcement and deterrence: The Act sets criminal penalties for intentionally or recklessly altering a sworn document so it becomes false or misleading, with distinct fault elements and maximum penalties (s27). That allocates enforcement to the criminal justice system and creates deterrent costs for intentional misconduct.

• Discretion and administrative control: The Minister holds discretion to appoint commissioners for oaths subject to a "fit and proper" test that requires consideration of convictions and other matters the Minister thinks relevant (s23(2)–(4)). This centralises appointment control while leaving the criteria broadly framed.

Concentrated benefits and diffuse costs (mechanism‑based observation)

• The procedural clarifications and acceptance of electronic and recorded forms tend to benefit people and institutions that rely on remote execution (lawyers, litigants in remote locations, agencies accepting declarations) because they lower travel/time costs (ss9, 14A, 21A, 20). The costs of adapting systems, ensuring secure witnessing and maintaining records fall on declarants, witnesses and institutions receiving documents (ss14–15, 19, 24).

Implementation risks and opportunity costs

• Institutions and individuals must adopt practices for audiovisual witnessing, maintain proof of how a document was made (required statements in ss14(6A), 19(6), 20(3)), and ensure witnesses can satisfy their visual/hearing checks (s28A(2)). These are implementation and record‑keeping costs.

• The minor‑noncompliance rule (s24A) reduces the chance that purely formal mistakes void documents, which may lower litigation over technical defects but leaves open judicial assessment of what "materially affects" the nature of the instrument.

Key sections to look at for practice

• Oath wording and choice: s5
• Content of oath and examples: s6 and Schedule 1
• Who may administer and who may witness: ss7, 15
• Affidavit form and audiovisual procedures: s14 and s14A
• Statutory declarations (written, recorded, unattested) and electronic signatures: ss18–21, s21A
• Commissioners for oaths and appointments: s23; powers and signing: s24
• Minor non‑compliance safe harbour: s24A
• Offence for altering sworn documents: s27
• Audiovisual witnessing requirements: s28A

This summary describes how the Act operates and the concrete effects it creates on behaviour, decision points and administrative burdens. It attributes the Act's enabling of electronic and remote alternatives to the relevant sections and then outlines the direct trade‑offs those alternatives introduce (verification, record‑keeping, and witness responsibilities).