The Act organises its subject matter around several core concepts that underpin the law of sworn statements in Western Australia. The first concept is an oath, defined functionally rather than substantively: an oath begins with a religious invocation using one of the prescribed forms set out in s 4(1), namely "I swear by Almighty God" or a variant referring to a named deity, or "I swear according to the religion and beliefs I profess". However, a person who has no religious belief may still take a valid oath (s 4(2)), and a person may adopt any form or manner that binds his or her conscience if the person before whom the oath is taken is satisfied on that point (s 4(3)). The second concept is an affirmation, which replaces the opening words of the oath with "I sincerely declare and affirm" (s 5(4)) and has the same force and effect as an oath (s 5(3)). A person is entitled to affirm instead of taking an oath (s 5(1)), and an affirmation must be accepted if the person states that taking an oath is contrary to religious belief or conscience, if it is not reasonably practicable to administer an oath in a binding manner, or if for any other sufficient reason an oath is not appropriate (s 5(2)(a)-(c)).

The third concept is an affidavit, a written statement sworn or affirmed before an authorised witness and made in accordance with the mandatory procedure in s 9. An affidavit must conclude with a statement that it was sworn or affirmed by the maker in the presence of an authorised witness, stating where and when (s 9(2)). The maker must sign or personally mark each page, initial any alterations, and in the presence of the witness say orally on oath or affirm the truth of the contents, the identity of the maker, the signature, and any attachments (s 9(3)). The witness must then sign under or near the concluding statement, imprint or write the witness’s name and qualification, sign each other page, and initial any alterations (s 9(5)). The authorised witness for an affidavit differs depending on location: within Western Australia, the witness must be a Justice of the Peace, an experienced legal practitioner (defined in s 8 as a legal practitioner of at least two years’ standing) who has not participated in preparing the affidavit or the proceedings, a public notary, or a person listed in s 6(2) (registrar, clerk of court, mining registrar). Outside Western Australia but within Australia, the witness may be a judge, magistrate, justice of the peace, notary public, prescribed consular official, or any person with authority under that place’s law to administer an oath (s 9(8)). A court authorised witness (s 10) is a person on the staff of a court who would not otherwise be an authorised witness but who is appointed in writing by the chief judicial officer and may witness affidavits for use in that court.

The fourth concept is a statutory declaration, a written statement made on the declarant’s own behalf without an oath, but declared orally before an authorised witness. The Act requires the use of the form in Schedule 1 (s 12(2)), which includes a warning that it is an offence to make a declaration knowing it is false in a material particular. The procedure is similar to that for affidavits: the maker must sign or mark the declaration, initial alterations, and in the presence of the witness declare orally the truth of the contents (s 12(3)). The witness must sign, initial alterations, and write name and qualification (s 12(5)). The authorised witnesses for statutory declarations are set out in a detailed table in Schedule 2, which includes over 40 categories such as Justices of the Peace, lawyers, police officers, doctors, nurses, accountants, bank managers, and many others (Schedule 2 items 1-44). For declarations made outside Western Australia but within Australia, the witness may be a person authorised under the law of that place or under the Commonwealth Statutory Declarations Act 1959 (s 12(6)(b)). The Act also uses the concept of a prescribed consular official (s 3), which includes Australian consular or diplomatic officers as defined in the Commonwealth Consular Fees Act 1955, British consuls or vice consuls, and any official prescribed by regulations. This concept is relevant to both affidavits (s 9(8)(c)) and statutory declarations made outside Australia (s 12(6)(c)(i)). The savings provision for substantial compliance in s 16 is a key concept: exact words are not required as long as the substance is not materially affected and the words used are not likely to mislead; procedural requirements need not be followed exactly as long as the procedure substantially complies.

The Act has a broad reach, affecting any person in Western Australia who needs to take an oath, make an affirmation, swear an affidavit, or make a statutory declaration for any purpose under WA law or the Royal Prerogative (ss 4(1), 5(1)). This includes individuals in civil litigation (deponents of affidavits), applicants for licences or permits who must provide statutory declarations, witnesses in court proceedings, persons verifying documents for administrative tribunals, and persons making statutory declarations for commercial, financial, or personal reasons. The Act also affects authorised witnesses , the extensive list of persons who may witness affidavits and statutory declarations. For affidavits, the categories are narrower: Justices of the Peace, experienced legal practitioners (s 8) who have not participated in preparing the affidavit (s 9(7)), public notaries, and court officers such as registrars and clerks (s 6(2), s 9(6)). For statutory declarations, the categories are much wider, set out in Schedule 2, and include members of academic staff at WA universities, accountants, architects, Australian consular and diplomatic officers, bailiffs, bank managers, chartered secretaries, chemists, chiropractors, company auditors and liquidators, court officers, defence force officers, dentists, doctors, electorate officers, engineers, industrial organisation secretaries, insurance brokers, Justices of the Peace, Landgate officers, lawyers, local government CEOs and councillors, loss adjusters, marriage celebrants, members of Parliament, midwives, ministers of religion, nurses, optometrists, paramedics, patent attorneys, physiotherapists, podiatrists, police officers, post office managers, psychologists, public notaries, Commonwealth and State public servants, real estate agents, settlement agents, sheriffs, surveyors, registered teachers, tribunal officers, and veterinarians (Schedule 2 items 1-44). This means a very wide cross-section of professionals and office-holders are affected by the duties imposed by s 12 (how statutory declarations must be witnessed) and s 13 (special duties towards blind or illiterate declarants). The Act also affects blind or illiterate persons and persons not sufficiently conversant with English by providing special procedural protections (ss 13, 14). Legal practitioners are particularly affected: those with less than two years’ experience cannot serve as authorised witnesses for affidavits (s 8), and those with at least two years’ experience are excluded from witnessing an affidavit if they have “participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used” (s 9(7)). Court staff who are not otherwise authorised witnesses may be appointed as court authorised witnesses under s 10, affecting their duties and the documents they may process. Courts and tribunals themselves are affected: the Act specifies who may administer oaths to witnesses appearing before them (s 6(1)) and provides that affidavits and statutory declarations made with rubber stamp signatures are not admissible in a court or before a person acting judicially (s 15(3)). Persons outside Western Australia who wish to make an affidavit or statutory declaration for use in WA must ensure the witness falls within the categories set out in s 9(8) (for affidavits) or s 12(6)(b)-(c) (for statutory declarations). Offenders are affected by s 17: a person who is not an authorised witness but pretends to be one commits an offence punishable by imprisonment for 12 months. Regulation-makers are affected by s 18, which allows the Governor to make regulations, and by s 12(7) which allows regulations to amend Schedule 2.

The Act imposes a series of distinct duties on both the maker of an oath, affirmation, affidavit or statutory declaration and on the person who administers or witnesses it. For oaths, the person administering the oath must require the oath-taker to hold or touch a religious text (or if none is available, to hold up one hand) and to say the words of the oath aloud either by repeating after the administrator or by reading them (s 7(1)). For affirmations, the procedure is the same except that there is no requirement to hold or touch a religious text; the affirmer must simply say the words aloud (s 7(2)). When an oath or affirmation is administered by audio link or video link within the meaning of the Evidence Act 1906 section 120, the administrator may do so “as nearly as practicable the same way” as if the person were physically present (s 7(3)). For affidavits, the maker has the duty to sign or personally mark the final statement and each other page, and to sign or initial any alterations (s 9(3)(a)-(b)). These acts need not be done in the presence of the witness (s 9(4)). The maker must then, in the presence of the witness, say orally on oath or affirm four specific matters: that the maker is the person named, that the contents are true, that the signature or mark is the maker’s, and (if applicable) that any attachment is the attachment referred to (s 9(3)(c)(i)-(iv)). The authorised witness for an affidavit must, after the maker has complied, sign or personally mark under or near the concluding statement, imprint or clearly write the witness’s name and qualification, sign or personally mark each other page, and sign or initial any alteration that the maker has signed or initialled (s 9(5)(a)-(c)). The witness is prohibited from acting if the witness has participated in any way in preparing the affidavit or the proceedings in which it is to be used (s 9(7)). For statutory declarations, the maker must sign or personally mark the declaration and initial any alterations (s 12(3)(a)-(b)), again not necessarily in the witness’s presence (s 12(4)). In the presence of the witness, the maker must declare orally the same four matters as for affidavits (s 12(3)(c)(i)-(iv)). The witness must then sign or personally mark the declaration, sign or initial alterations, and imprint or write the witness’s name and qualification (s 12(5)). For blind or illiterate persons, additional duties are imposed on the authorised witness: the witness must read the document aloud to the person (or cause it to be read aloud in the witness’s presence), satisfy himself or herself that the person understood, and certify on the document that this was done and that the witness is satisfied (s 13(1)). This duty is expressed to be additional to the ordinary requirements of ss 9 and 12 (s 13(2)). For persons not sufficiently conversant with English, the Act confers a right to make an affidavit or statutory declaration in another language, but the document is not admissible in court or before a person acting judicially unless it is translated into written English by a suitably qualified translator and the translator makes an affidavit stating qualifications and verifying the accuracy of the translation (s 14(1)-(2)).

The Act confers rights on individuals: a right to affirm instead of taking an oath (s 5(1)), a right to choose any form of oath that will bind the person’s conscience if the administrator is satisfied (s 4(3)), and a right to have an oath administered even if the person has no religious belief (s 4(2)). A person may make a statutory declaration about any matter at any time, for any purpose, without needing any legal authority beyond s 11(1) itself (though other laws may require declarations for specific purposes). The Act also provides a savings for non-compliance: the validity of an oath, affirmation, or statutory declaration is not affected merely because exact words are not used, as long as the words actually used do not materially affect the substance and are not likely to mislead (s 16(1)); similarly, the validity of an oath, affirmation, affidavit or statutory declaration is not affected merely because the required procedure is not followed exactly, as long as the procedure actually followed substantially complies (s 16(2)). This provision operates as a protective right for persons who have made good-faith efforts to comply. The Act also imposes a prohibition on using rubber or other stamps to make the signature or mark of the maker or witness on an affidavit or statutory declaration (s 15(1)); however, a stamp may be used to imprint the person’s name near the signature or mark to identify whose signature it is (s 15(2)). An affidavit or statutory declaration signed by the maker or witness with a rubber stamp is not admissible in a court or before a person acting judicially (s 15(3)).

The Act creates one express criminal offence: a person who is not an authorised witness for affidavits or for statutory declarations and who pretends to be, or asserts that he or she is, such an authorised witness in the knowledge that he or she is not, commits an offence punishable by imprisonment for 12 months (s 17). This is a relatively serious offence reflecting the importance of the integrity of the witnessing process. There is no express penalty for a person who makes a false statutory declaration; the form in Schedule 1 includes a warning that “it is an offence to make a declaration knowing that it is false in a material particular”, but that offence arises under other legislation (such as the Criminal Code (WA) or Commonwealth provisions), not under this Act. The Act does not create a specific penalty for a person who makes a false affidavit; again, such conduct would be dealt with under general criminal law (perjury or false testimony provisions) or under rules of court.

Enforcement of the procedural requirements is primarily through the consequence of invalidity or inadmissibility. An affidavit or statutory declaration made with a rubber stamp signature is not admissible in a court or before a person acting judicially (s 15(3)). A document that does not comply with the form or procedure required by the Act may be invalid if it does not substantially comply (s 16 suggests that substantial compliance saves validity, but failure to substantially comply will render the document invalid or inadmissible). For example, if an affidavit is not sworn or affirmed orally before the witness (s 9(3)(c)), or if the witness does not sign each page (s 9(5)(b)), the affidavit may be rejected by a court or other body. An affidavit witnessed by a person who is not an authorised witness under s 9(6)-(8) will be invalid. An affidavit witnessed by an experienced legal practitioner who participated in preparing the affidavit (s 9(7)) will be invalid. A statutory declaration that does not use the form in Schedule 1 (or one that substantially complies) may be rejected. There are no civil penalties or fines for the maker or witness for mere procedural non-compliance, but professional consequences may follow: a legal practitioner who knowingly witnesses an affidavit in breach of s 9(7) may face disciplinary action. A Justice of the Peace or other authorised witness who fails to perform the duties under s 13 (reading aloud to blind or illiterate persons) may be subject to removal from office or other sanctions under the enactments governing their appointment.

The Act does not create a system of enforcement officers or inspectors. Enforcement relies on the parties who receive the affidavit or statutory declaration (courts, tribunals, government departments, financial institutions) to check compliance and reject documents that do not meet the requirements. The offence under s 17 would be investigated and prosecuted by police or other law enforcement agencies. Regulations made under s 18 may prescribe further offences, but the Act itself does not specify any penalty for those potential regulations; the Interpretation Act 1984 (WA) would govern penalties in regulations. The uncommenced provisions table notes that the Evidence Act 2025 s 492(2) (when proclaimed) may affect this Act, but the content of that amendment is not provided. Practitioners should be aware that non-compliance, even if saved by s 16, may still lead to the document being challenged and the cost and delay of re-execution.

The Act is part of a broader legal framework governing oaths, affidavits and statutory declarations in Western Australia. Its operation is expressly subject to other written laws in certain circumstances. For affidavits, s 9(1) provides that its requirements apply “unless another written law provides otherwise”. This means that if a specific statute (such as the Evidence Act 1906, the Rules of the Supreme Court, or a particular industry Act) prescribes different requirements for making an affidavit, those requirements will prevail. Similarly, s 9(9) states that subsections (6), (7) and (8) (which set out who may be an authorised witness) “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”. For example, the Mining Act 1978 already provides that a mining registrar may administer oaths; s 6(2) of this Act independently confirms that power for any purpose. For statutory declarations, s 12(1) similarly provides “unless another written law provides otherwise”. The Act also cross-references the Commonwealth Statutory Declarations Act 1959: persons who may witness declarations under that Commonwealth Act are authorised witnesses for WA declarations made in Western Australia (s 12(6)(a)(ii)) and for declarations made outside WA but within Australia (s 12(6)(b)(ii)). This creates a reciprocal interaction between State and Commonwealth regimes.

The Act interacts with the Evidence Act 1906 (WA) in relation to audio link and video link. Section 7(3) of this Act provides that an oath or affirmation may be administered by such means “as nearly as practicable the same way as if B were in the presence of A”, and it adopts the definitions of “audio link” and “video link” from the Evidence Act 1906 section 120. If the Evidence Act 1906 section 120 is amended or replaced (as the uncommenced Evidence Act 2025 may do), the operation of s 7(3) will be affected. The Act also interacts with the Criminal Code (WA) and other laws that create offences for false statements; as noted, Schedule 1 of the Act refers to the offence of making a false declaration knowing it to be false in a material particular, but that offence is not created by this Act. The Act interacts with the Marriage Act 1961 (Cth) by cross-referencing authorised celebrants and ministers of religion registered under Part IV Division 1 of that Act as authorised witnesses for statutory declarations (Schedule 2 items 24 and 26). It interacts with the Health Practitioner Regulation National Law (Western Australia) by listing persons registered under that Law in various professions as authorised witnesses (Schedule 2 items 9, 10, 11? (doctor, dentist, etc.)). It interacts with the Corporations Act 2001 (Cth) by including company auditors and liquidators as authorised witnesses (Schedule 2 item 11). The Act interacts with the Industrial Relations Act 1979 and the Workplace Relations Act 1996 (Cth) by including secretaries of registered organisations (Schedule 2 item 17). The Act also interacts with the Universities Legislation (various Acts) by including academic staff (Schedule 2 item 1). These cross-references mean that changes to those underlying Acts (such as the renaming of a university or the introduction of a new registration board) will indirectly affect who may serve as an authorised witness under this Act. The Act also has a temporary interaction history with the COVID-19 Response and Economic Recovery Omnibus Act 2020, which modified s 9 for the period up to 31 December 2021 (unless postponed). That modification has now ceased, so the original s 9 applies. The uncommenced Evidence Act 2025 s 492(2) will likely amend this Act or its references, but its provisions are not yet in force. The Act does not interact with the Oaths and Affirmations Act 2018 (Cth), which governs oaths for Commonwealth purposes. The two regimes operate in parallel: the Commonwealth Act applies to federal matters and uses Commonwealth officers, while the WA Act applies to State matters and uses a different list of authorised witnesses, though the Commonwealth statutory declaration witnesses are also recognised for WA declarations (s 12(6)(a)(ii)). The savings provision in s 16 preserves the validity of documents that substantially comply, which may interact with court rules that require strict compliance; in such cases, s 16 would likely prevail as a general provision, but a specific court rule made under another written law might override it (s 9(1), s 12(1)). Practitioners should always check the specific rules of the court or tribunal in which the affidavit or declaration is to be used.

The Act was originally enacted as the Oaths, Affidavits and Statutory Declarations Act 2005 (No. 23 of 2005), assented to on 2 December 2005. Sections 1 and 2 (short title and commencement) commenced on assent, and the remainder of the Act commenced on 1 January 2006 by proclamation published in the Gazette on 23 December 2005. The Act has been amended by a series of later Acts and regulations.

Two sets of regulations amended Schedule 2 by inserting or altering authorised witness categories: the Oaths, Affidavits and Statutory Declarations (Act Amendment) Regulations 2006 (r. 3, gazetted 9 June 2006) and the Oaths, Affidavits and Statutory Declarations (Act Amendment) Regulations 2007 (r. 4, gazetted 21 December 2007, effective 22 December 2007). The Acts Amendment (Justice) Act 2008 (No. 5 of 2008) Part 17, which commenced on 30 September 2008, amended ss 6 and 7 of the Act to add mining registrars as persons who may administer oaths (s 6(2)) and to permit the administration of oaths by audio or video link (s 7(3)). The Legal Profession Act 2008 (No. 21 of 2008) s 684, which commenced on 1 March 2009, inserted the definition of “experienced legal practitioner” as s 8, amended s 9 (altering subsections (3) and (4)), and amended Schedule 2. The Medical Practitioners Act 2008 (No. 22 of 2008) Schedule 3 clause 39, which commenced on 1 December 2008, amended Schedule 2 to update references to the medical profession. A reprint of the Act as at 9 January 2009 incorporated the amendments listed above except those in the Legal Profession Act 2008.

The Health Practitioner Regulation National Law (WA) Act 2010 (No. 35 of 2010) Part 5 Division 38, which commenced on 18 October 2010, amended Schedule 2 to replace references to health profession-specific Acts with references to the National Law. The Oaths, Affidavits and Statutory Declarations (Act Amendment) Regulations 2011 (r. 4, gazetted 9 December 2011, effective 10 December 2011) further amended Schedule 2. The Teacher Registration Act 2012 (No. 16 of 2012) s 165, which commenced on 7 December 2012, added item 42 (registered teacher) to Schedule 2. The Oaths, Affidavits and Statutory Declarations (Act Amendment) Regulations 2014 (r. 4, gazetted 17 April 2014, effective 18 April 2014) amended Schedule 2 again. A reprint of the Act as at 4 December 2015 incorporates all amendments listed to that date. The Universities Legislation Amendment Act 2016 (No. 32 of 2016) Part 7 Division 6 amended Schedule 2 commencing 2 January 2017. The Health Practitioner Regulation National Law (WA) Amendment Act 2018 (No. 4 of 2018) s 115, commencing 1 December 2018, amended Schedule 2 to add items for the midwife and paramedic professions. The Veterinary Practice Act 2021 (No. 19 of 2021) s 233, commenced 18 June 2022, added item 44 (veterinarian) to Schedule 2. The Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022) s 424, commenced 1 July 2022, amended s 8 (definition of experienced legal practitioner) and also amended Schedule 2. The COVID-19 Response and Economic Recovery Omnibus Act 2020 temporarily modified s 9 (affidavits) from a date in 2020 until 31 December 2021 (unless postponed); that modification has now expired and the original s 9 applies.

An uncommenced amendment is noted: the Evidence Act 2025 (No. 15 of 2025) s 492(2) is to be proclaimed and may affect the Act. Practitioners should monitor the commencement of this amendment.

The Act itself has generated relatively little reported litigation, which is typical for a procedural statute that sets clear requirements and contains a substantial compliance savings provision. No cases are named in the source text, and the Act’s provisions have generally been applied without significant controversy. The main areas where litigation could arise include challenges to the validity of affidavits or statutory declarations on the ground that they did not comply with the requirements of ss 9 or 12, with the court then determining whether substantial compliance under s 16 has been achieved. For instance, a party might argue that the witness’s failure to sign each page of an affidavit (s 9(5)(b)) renders it invalid, while the opposing party would rely on s 16(2) that the procedure “substantially complied”. The outcome would depend on the facts: if the witness signed the jurat page but omitted one or more continuation pages, a court might accept substantial compliance if the missing signatures did not affect the integrity of the document. Similarly, if the maker did not orally swear or affirm in the presence of the witness (s 9(3)(c)), that may go to the very heart of the procedure and could not be cured by s 16.

Another potential area of litigation is the interpretation of “experienced legal practitioner” under s 8 and the exclusion in s 9(7). A legal practitioner who has been admitted for fewer than two years might attempt to witness an affidavit, raising the question of whether the definition is strictly based on time since admission or whether it requires active practice. The Act defines the term only as “a person who is, and has been for at least 2 years, a legal practitioner” (s 8). The meaning of “legal practitioner” in turn depends on definitions in the Legal Profession Act 2008 (as amended) or the Legal Profession Uniform Law Application Act. Disputes could arise about whether a period of non-practice (such as a career break) breaks the continuity. The exclusion in s 9(7) , “participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used” , may be litigated to determine whether mere administrative assistance (such as formatting or filing) constitutes participation. The phrase “in any way” is broad, but a court might distinguish between substantive legal work and purely clerical tasks.

Litigation could also arise under s 17 (pretending to be an authorised witness). That provision creates a criminal offence, and any prosecution would test the meanings of “pretends to be” and “asserts that he or she is” an authorised witness. For example, a person who is not on the list in Schedule 2 but who holds themselves out as a witness might argue that they believed in good faith that they were authorised. The offence requires knowledge that they are not authorised, so mental state would be in issue.

The interaction between s 16 and court-specific rules may also generate litigation. If a court’s rules require an affidavit to be in a particular format (e.g., with specific margins or font size), and the affidavit uses a different format but is otherwise sworn correctly, a question arises as to whether the court rule is “another written law” that provides otherwise (s 9(1)) and thus overrides the substantial compliance provision. The outcome may depend on whether the court rule is considered procedural rather than substantive. No decided cases are recorded in the Act’s notes, and the uncommenced Evidence Act 2025 may bring changes that generate fresh litigation. Overall, the Act has been applied with relatively little judicial interpretation, and practitioners should rely on its plain words and the principle of substantial compliance.

Several less obvious provisions in the Act can trap unwary practitioners. The rubber stamp prohibition under s 15 is frequently overlooked. Section 15(1) states that “a person who is the maker of, or the witness to, an affidavit or statutory declaration must not use a rubber or other stamp to make the person’s signature or personal mark”. This means that even if a person habitually uses a signature stamp for convenience, it must not be used on affidavits or statutory declarations. Section 15(2) allows a stamp to be used only to imprint the person’s name near the signature or mark to identify whose signature it is. Section 15(3) makes any affidavit or statutory declaration signed by the maker or witness with a rubber stamp inadmissible in a court or before a person acting judicially. This consequence applies regardless of whether the document is otherwise valid. A person may sign with a personal mark (such as an X or a unique symbol), but that mark must be made personally, not by a stamp.

Another trap concerns legal practitioners who witness affidavits. Section 9(7) excludes from being an authorised witness 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”. The phrase “participated in any way” is broad and covers not only drafting the affidavit but also instructing the deponent, reviewing the content, suggesting amendments, or even being the solicitor on the record in the proceedings. Many firms have a policy of having a different solicitor (or a Justice of the Peace) witness affidavits. The same practitioner cannot both prepare and witness. A breach of s 9(7) likely renders the affidavit invalid (unless saved by s 16, but that is risky). Legal practitioners with fewer than two years’ experience are not authorised witnesses at all for affidavits (s 8).

The form of statutory declarations must be in the form in Schedule 1 (s 12(2)). Although s 16 allows substantial compliance, practitioners should note that the Schedule 1 form includes specific elements: the declarant’s name, address and occupation, the declaration content, a warning that it is an offence to make a false declaration knowing it to be false in a material particular, the place and date, the signature of the declarant, and the signature, name and qualification of the authorised witness. Omitting the warning or the declarant’s occupation may be risky if a court decides that such omission materially affects the substance or is likely to mislead. Practitioners should use the exact form, with only necessary content additions.

The oral declaration requirement for both affidavits and statutory declarations is easily overlooked. For affidavits, the maker must say orally on oath or affirm the four matters in s 9(3)(c). For statutory declarations, the maker must declare orally (s 12(3)(c)). The Act does not permit a silent signing; the words must be spoken aloud in the presence of the witness. Using a video link is permitted for oaths and affirmations under s 7(3), but only if it constitutes an audio link or video link within the meaning of the Evidence Act 1906 s 120. A telephone call or a simple video call may not satisfy that definition.

The requirement that the maker sign or mark each page of an affidavit (s 9(3)(a)) and that the witness also sign each page (s 9(5)(b)) is often missed in practice. Some practitioners only sign the jurat page. If the witness fails to sign each continuation page, the affidavit may be challenged. Section 16(2) may save it, but reliance on savings provisions is not advisable. The witness must also sign or initial any alterations (s 9(5)(c)), and the maker must have already signed or initialled them (s 9(3)(b)).

Blind or illiterate persons require special treatment under s 13. The witness must read the document aloud, satisfy himself or herself that the person understood, and certify on the document that the document was read aloud and that the witness is satisfied. If the certification is not placed on the face of the document, the affidavit or declaration may be invalid. The duty is additional to the ordinary requirements; the witness cannot skip the certification even if satisfied.

For persons not conversant with English, s 14 provides that an affidavit made in another language is not admissible unless a suitably qualified translator provides an English translation and makes an affidavit verifying qualifications and accuracy. The affidavit in the foreign language is the original, but it cannot be used until the translator’s affidavit is attached. This means the translator’s affidavit itself must comply with s 9, including having an authorised witness.

The definition of “prescribed consular official” includes British consuls or vice consuls (s 3(b)). This may extend beyond Australian officials, which could be relevant for documents made in countries where only British consuls are available.

The court authorised witness under s 10 must be appointed in writing and the appointment kept in the court’s records. If the appointment is not in writing, the person is not an authorised witness. The appointment ceases when the person ceases to be on the court’s staff or when cancelled. A person relying on such an appointment should verify that the appointment is current and in writing.

The non-compliance savings in s 16 are not a guarantee. Exact words must not materially affect the substance and must not be likely to mislead. Procedures must “substantially comply”. If the departure is significant (e.g., no oral declaration, no witness signature), the document is likely invalid. Section 16 does not apply to rubber stamp signatures because s 15(3) expressly makes such documents inadmissible regardless of any other provision.

Finally, the offence provision under s 17 (pretending to be an authorised witness) applies only where the person knows they are not authorised. However, a person who is on a list but not for the specific purpose (e.g., a person authorised for statutory declarations but not for affidavits, who purports to witness an affidavit) may not commit the offence if they are a genuine authorised witness for that type of document. But if they are not on any list and hold themselves out, they risk prosecution and imprisonment for 12 months.

Compliance with the Act requires attention to the specific requirements for each type of document: oath, affirmation, affidavit, or statutory declaration. The following steps are derived directly from the Act.

For oaths and affirmations made other than in the context of an affidavit: determine whether the person taking the oath wishes to swear by Almighty God, by a named deity, or according to profession of belief (s 4(1)). If the person prefers to avoid a religious form, they are entitled to affirm (s 5(1)). The person may use any form that binds their conscience if the administrator is satisfied (s 4(3)). The administrator must require the person to hold or touch a religious text (or if none is available, to hold up one hand) and say the words aloud (s 7(1)-(2)). For remote administration, use an audio or video link that satisfies the Evidence Act 1906 s 120, and follow the same procedure as nearly as practicable (s 7(3)). The administrator must be a judicial officer presiding (or a person authorised by that officer) for court witnesses, or a registrar, clerk, or mining registrar for any purpose (s 6).

For affidavits: ensure that the maker signs or personally marks each page and initials any alterations (s 9(3)(a)-(b)). This can be done outside the witness’s presence (s 9(4)). Prepare the concluding statement (s 9(2)) stating that it is sworn or affirmed in the presence of the authorised witness, with place and date. The maker must then appear before an authorised witness. For an affidavit made in Western Australia, the witness must be a Justice of the Peace, an experienced legal practitioner (of at least two years’ standing) who has not participated in preparing the affidavit or the proceedings (s 9(7)), a public notary, or a registrar/clerk of court or mining registrar (s 9(6)). For an affidavit made outside WA but within Australia, the witness may be a judge, magistrate, justice of the peace, notary public, prescribed consular official, or a person with authority under that place’s law (s 9(8)). For affidavits made outside Australia, the witness must be a prescribed consular official performing official functions at that place (s 9(8)(c)). The maker must then say orally on oath or affirm the four specified matters: identity, truth of contents, signature, and attachments (s 9(3)(c)(i)-(iv)). After that, the witness must sign or personally mark under or near the concluding statement, imprint or write their name and qualification, sign each other page, and initial any alterations that were initialled by the maker (s 9(5)(a)-(c)). The witness must not use any form of rubber stamp for their signature (s 15(1)).

For statutory declarations: use the form set out in Schedule 1 (s 12(2)). The form must include the declarant’s name, address and occupation, the declaration content, the warning about false declarations, and the place and date. The maker must sign or personally mark the declaration and initial alterations (ss 12(3)(a)-(b)). This can be done outside the witness’s presence (s 12(4)). The maker must then appear before an authorised witness. The witness must be a person listed in Schedule 2 (for declarations made in WA), or a person authorised under the Commonwealth Statutory Declarations Act 1959 (s 12(6)(a)). For declarations made outside WA but within Australia, the witness may be a person authorised under the law of that place or under the Commonwealth Act (s 12(6)(b)). For declarations made outside Australia, the witness must be a prescribed consular official, a justice or notary under the law of that place, or a person with authority to take declarations under that place’s law (s 12(6)(c)). The maker must declare orally the same four matters as for an affidavit (s 12(3)(c)(i)-(iv)). After that, the witness must sign or personally mark the declaration, initial any alterations that were initialled by the maker, and imprint or write their name and qualification (s 12(5)). The witness must not use a rubber stamp for signature (s 15(1)).

Additional compliance steps for special cases: if the maker is blind or illiterate, the witness must read the document aloud to the person (or cause it to be read aloud in the witness’s presence), satisfy himself or herself that the person understood, and certify on the document that this was done and that the witness is satisfied (s 13(1)). This certification must appear on the affidavit or declaration itself. If the maker is not sufficiently conversant with English, the affidavit or declaration may be made in another language, but it will not be admissible in court or before a person acting judicially unless a suitably qualified translator provides an English translation and makes an affidavit stating qualifications and verifying accuracy, and that translator’s affidavit is attached (s 14). For affidavits witnessed by a court authorised witness, verify that the appointment is in writing and kept in the court’s records (s 10(2)-(3)). Ensure the appointment has not been cancelled and that the witness is still on the court’s staff (s 10(4)).

Record-keeping is not mandated by the Act but is prudent. Organisations that regularly receive statutory declarations (such as government departments or financial institutions) should maintain a current list of authorised witnesses from Schedule 2 and check that the witness’s qualification matches one of the listed categories. Any alterations to the document must be initialled by both the maker and the witness. The witness’s name and qualification should be legibly written or imprinted; a business card stapled to the document may not suffice if it is not written or imprinted on the document itself. After witnessing, the document should be retained in the required form; no further steps are needed under this Act. The parties should be aware that the Act does not require the witness to keep a register or report the execution to any authority. However, the Act does not prevent a witness from keeping a record for their own protection.