Oaths and Affirmations Act 1984

The Act distinguishes between an oath and an affirmation. An oath is a religious or solemn promise invoking a deity, whereas an affirmation is a secular but equally binding declaration. The Act provides that in any case where an oath is required or permitted by law, a person is entitled to make an affirmation instead (s 14(1)). This right overrides any other Territory law (s 14(2)). The Act also permits a person to be required to affirm if the administrator considers the person incompetent to take an oath, if the person is objected to on reasonable grounds, or if the person wishes to use an alternative form under s 21 and it is not reasonably practicable to accommodate that form (s 15). An affirmation has the same effect as an oath for all purposes (s 16). The Act defines forms for four categories: oath or affirmation of office (s 6, Schedule 1), oath or affirmation by a member of the Legislative Assembly (s 6A, Schedule 1A divided into Parts 1A.1 and 1A.2), oath or affirmation by a witness (s 7, Schedule 2), oath or affirmation by an interpreter (s 8, Schedule 3), and oath or affirmation by a deponent to an affidavit (s 10, Schedule 5). The forms are set out in the schedules and include the traditional wording with optional substitutions for the deity reference. The concept of “authorised person” is central: s 11 lists who may administer oaths and affirmations: in the ACT, a justice of the peace, a notary public for the ACT, or a legal practitioner; in a State or another Territory, those persons plus a justice of the peace or notary of that place or any other person authorised there; overseas, an Australian diplomatic or consular representative, a notary public for that place, or any person authorised there. An authorised person may also administer affirmations (s 11(2)). The Act also uses the concept of “foreign tribunal” for cross‑border evidence gathering (s 24). The dictionary defines “court” and “proceeding” broadly, ensuring the Act applies to tribunals and other bodies that receive evidence. The Act is subject to court rules for several procedural provisions, including ss 7, 8, 10, 11, 12, 13 and Part 5 (s 5). This means that the Supreme Court or other courts may make rules that modify how those sections operate in practice, but the underlying statutory forms and rights remain.

The Act applies to a wide range of persons operating within the ACT legal system. Members of the Legislative Assembly must take an oath or affirmation of allegiance and an oath or affirmation of service before taking their seats (s 6A), and those oaths are administered by the Chief Justice or an authorised judge of the Supreme Court (s 10A). Justices of the peace, notaries public, and legal practitioners are directly affected because they are the primary authorised administrators under s 11. They must ensure they act within their authority and comply with the manner requirements of Part 5 when administering oaths or affirmations or taking affidavits. Witnesses in any court or tribunal proceeding must take an oath or affirmation in the form set out in Schedule 2 unless another form is prescribed (s 7). Interpreters in proceedings must take an oath or affirmation using the form in Schedule 3 (s 8). Deponents to affidavits for use in proceedings must use the form in Schedule 5 (s 10). Persons who are illiterate, blind, or who do not understand English are specifically protected by certification requirements in ss 19 and 20, which impose duties on the administrator to ensure the deponent understands the affidavit. Persons who, for religious or other reasons, do not wish to swear an oath are entitled to affirm (s 14). The Act also affects foreign tribunals that seek to take evidence in the ACT: a person appointed by a foreign tribunal may administer oaths or affirmations for that purpose, but with restrictions: no authority in connection with criminal proceedings, and if the foreign tribunal is not a court or judge, the Minister’s consent is required (s 24). Any person who requires another to take an oath or administers an oath without lawful authority commits an offence (s 25), which affects private individuals who might attempt to administer oaths informally. The fee prohibition in s 27 affects any person authorised to administer an oath or affirmation under the Act: they cannot charge a fee for that service. Finally, the Act’s interaction with court rules (s 5) means that judges, magistrates, and court registrars must be aware that the procedural sections are subject to modification by rules made under the Court Procedures Act 2004.

The Act imposes several duties and confers important rights. The central right is the entitlement to make an affirmation instead of taking an oath in any case where an oath is required or permitted by law (s 14(1)). This right overrides any inconsistent Territory law (s 14(2)). The administrator also has a duty, under s 15, to require a person to affirm if the person appears incompetent to take an oath, is objected to on reasonable grounds, or wishes to take an oath in an alternative form that is not reasonably practicable. The person taking an oath or affirmation of office has a duty to sign an instrument showing the form of the oath or affirmation in the presence of the administrator, and the administrator must certify the taking and the date (s 18). For affidavits, the administrator has specific certification duties: if the deponent does not understand English, the administrator must certify that an interpreter interpreted the affidavit and oath, that the deponent seemed to understand, and that the deponent swore or affirmed (s 19). If the deponent is illiterate or blind, the administrator must certify that the affidavit was read in the administrator’s presence and that the deponent seemed to understand (s 20). The administrator also has the duty to allow the oath to be taken in a language other than English if the administrator allows it (s 17(3)), and to accommodate a person who cannot speak by allowing signs or other means (s 17(4)). A person has the right to take an oath in an alternative form and manner if they state that a different form would be binding on them (s 21). This right is subject to s 6A (members of Assembly) and s 15 (requirement to affirm). No religious text is necessary (s 21(2)). A person who takes an oath or affirmation in the prescribed form or in a form they stated to be binding is bound by it for all purposes (s 22(1)). Importantly, even if the person had no religious belief or did not regard the oath as binding, the oath remains valid (s 22(2)). The Act also provides that non‑compliance with Part 2 (forms) or Part 5 (manner) does not affect validity (s 23), which protects against technical challenges. The administrator has no right to charge a fee for administering an oath or affirmation under this Act (s 27). Finally, a person appointed by a foreign tribunal may administer oaths in the ACT but must not do so for criminal proceedings and must obtain the Minister’s consent if the tribunal is not a court or judge (s 24).

The Act contains one criminal offence provision. Section 25 provides that a person shall not, unless authorised by or under a law in force in the ACT, require another person to take an oath or make an affirmation, or administer an oath or affirmation to another person. Subsection (2) provides that a person who wilfully contravenes subsection (1) commits an offence. The maximum penalty is 50 penalty units, imprisonment for 6 months, or both. At the republication date of 26 September 2022, the value of a penalty unit is $160 for an individual and $810 for a corporation, as specified in the republishing information. Therefore, the maximum fine for an individual is $8,000. For a corporation, the maximum fine would be $40,500, though the imprisonment component does not apply to corporations. The offence is one of “wilful” contravention, meaning that mere inadvertence may not suffice; the prosecution must prove that the accused knowingly and intentionally acted without authority. The Act does not create any other specific enforcement mechanisms such as infringement notices or civil penalties. The s 25 offence is the primary enforcement tool to ensure that oaths and affirmations are administered only by properly authorised persons (as listed in s 11 and s 10A). The prohibition applies to “requiring” as well as “administering”, so even putting pressure on someone to take an oath without authority could be captured. There are no private rights of action created by the Act; enforcement would be a matter for the Director of Public Prosecutions or other prosecuting authority. The Act also provides a saving provision for authorised persons: s 26 provides that if an oath, affirmation, or affidavit is required or permitted by a foreign law (defined as a law of a place outside the ACT), nothing in the Act makes it an offence for an authorised person to administer the oath or affirmation or take the affidavit for that purpose. This ensures that an ACT‑authorised person who acts under s 26 is not guilty of an offence under s 25 when assisting with foreign law requirements, subject to the limitation in s 24(2) regarding non‑court foreign tribunals requiring Ministerial consent.

The Act contains several provisions that expressly recognise its interaction with other laws. Section 5 states that specific sections (s 7, 8, 10, 11, 12, 13, and Part 5) are subject to rules made, and forms approved, under the Court Procedures Act 2004. This means that the Supreme Court, Magistrates Court, and other courts can make procedural rules that modify how those sections operate, such as prescribing alternative forms for witness oaths or setting out who can administer affidavits. However, the Court Procedures Act rules cannot override the substantive rights (such as the entitlement to affirm under s 14) because s 14(2) provides that it has effect despite any other Territory law. The Evidence Act 2011 (ACT) may also be relevant: the dictionary definition of “court” was amended by the Evidence (Consequential Amendments) Act 2011 to align with that Act. The Self-Government Act (Cwlth) is referenced in s 6A(2), which provides that the requirement for members of the Assembly to take oaths has effect despite the Commonwealth Self‑Government Act s 9(1). The Legislation Act 2001 is referenced in several ways: the Act’s notes are explanatory and not part of the Act (s 3, citing s 127 of the Legislation Act); the dictionary is part of the Act (s 2); and the Legislation Act provides definitions for terms used but not defined in this Act (dictionary note). The Consular Fees Act 1955 (Cwlth) is referenced in the definition of “Australian diplomatic or consular representative” in s 11(3). The Court Procedures Amendment Act 2018 (A2018‑9) made minor amendments to s 5 and other provisions, and that amending Act is the most recent substantive amendment. The Act also interacts with any law that prescribes a form of oath or affirmation: s 6 provides that if another ACT law prescribes a form of oath of office, that form prevails; otherwise the Schedule 1 form is used. Similarly for witness and deponent oaths (ss 7, 10). The Act’s provision on affirmations overrides other Territory laws (s 14(2)). For foreign tribunal evidence, the Act interacts with the law of the requesting jurisdiction, and s 24 imposes conditions that may not be present in other Australian jurisdictions. The fee prohibition in s 27 interacts with any other law that might allow a fee for such services; the Act prohibits a fee for oaths taken in accordance with this Act, but if another law requires an oath to be administered in a different manner, it may not be covered. Finally, the Act’s reliance on “court rules” means that practitioners must check the current rules under the Court Procedures Act 2004 to see if any modifications apply to the conduct of oaths and affidavits in particular courts.

The Act originated as a Commonwealth ordinance, the Oaths and Affirmations Ordinance 1984 No 79, notified on 19 December 1984. It became an ACT enactment on 11 May 1989 (self‑government day) under the Self‑Government (Citation of Laws) Act 1989. The first amendments were made by the Self‑Government (Consequential Amendments) Ordinance 1989, which commenced on 11 May 1989 and removed a reference to the Seat of Government (Administration) Ordinance 1930. Subsequent amendments reflect changes in terminology and penalties. The Statute Law Revision (Penalties) Act 1994 updated penalty provisions, including amending s 25 to its current penalty of 50 penalty units and/or 6 months imprisonment. The Oaths and Affirmations (Amendment) Act 1995 inserted the requirement for members of the Assembly to take oaths or affirmations (new s 6A) and the authority for the Chief Justice or a judge to administer them (s 10A), and also amended s 11 to include references to legal practitioners and amended s 21 regarding alternative forms. The Legal Practitioners (Consequential Amendments) Act 1997 removed the term “barrister and solicitor” from the definitions. The Legislation (Consequential Amendments) Act 2001 omitted the original dictionary and notes and restructured the endnotes. The Court Procedures (Consequential Amendments) Act 2004 substituted the heading of s 5 to refer to the Court Procedures Act 2004. The Justice and Community Safety Legislation Amendment Act 2005 (No 2) re‑inserted a dictionary and made other adjustments. The Statute Law Amendment Act 2005 (No 2) substituted s 1 (name of Act) and s 6A, and made minor amendments to s 18. The Statute Law Amendment Act 2007 (No 2) amended the dictionary definitions of “court” and “proceeding”. The Evidence (Consequential Amendments) Act 2011 further amended the dictionary definitions to align with the Evidence Act 2011. The Courts Legislation Amendment Act 2015 amended s 17(0) (renumbering the section heading). The most recent substantive amendment is the Courts and Other Justice Legislation Amendment Act 2018 (A2018‑9), which commenced on 26 April 2018. That amendment made several important changes: it omitted section 9 (oath or affirmation by interpreter of signs) and Schedule 4 (oath and affirmation by interpreter of statements made by means of signs), reflecting that sign language interpreters are now covered by the general interpreter provisions. It also substituted the forms in Schedules 1, 1A, 2, 3, and 5 to update the wording (notably changing references from “Her Majesty” to “His Majesty King Charles the Third” in Schedule 1A). It also amended s 8 (interpreter oath) and s 21 (alternative form) and made a minor amendment to s 5. The Act has been republished 11 times, with the latest republication on 26 September 2022 incorporating all amendments.

The source text of the Act does not reference any specific litigation or case law. The Act contains no provisions that cite judicial decisions, and the endnotes provide only amendment history, not references to court cases. However, the Act’s provisions on validity and non‑compliance are clearly drafted to pre‐empt certain types of challenges. Section 22(2) expressly provides that an oath is valid even if the person had no religious belief or did not regard it as binding, which likely responds to historical arguments that an oath was invalid if the taker lacked belief in a deity. Section 23 provides that non‑compliance with the form or manner requirements of Part 2 or Part 5 does not affect validity, which would be relevant in any challenge to an affidavit or witness statement based on a technical defect in the wording. The Act’s broad affirmation right (s 14) has likely been the subject of practice, but no case is listed. The offence under s 25 might arise in prosecutions where a person without authority administers an oath, but again, no reported cases are cited. The interaction with court rules (s 5) may have been litigated if a party argued that a court rule conflicted with the Act, but the source does not provide any such examples. The definition of “court” and “proceeding” in the dictionary has been amended over time, possibly to resolve interpretive disputes, but no case law is mentioned. It is possible that the Act has been cited in passing in other cases (for example, concerning the validity of an affidavit), but the republication does not include any judicial consideration. Therefore, a deep dive must note that the Act itself provides no litigation references. Practitioners should be aware that the Act’s curative provisions (ss 22, 23) are strong and should be cited if a technical challenge arises to an oath or affirmation. The absence of reported case law may also indicate that the Act operates smoothly in practice, with few disputes reaching court.

Several provisions in the Act may surprise lawyers, practitioners, or members of the public if not carefully read. First, s 14(2) provides that the entitlement to affirm “has effect notwithstanding anything contained in any other Territory law.” This means that even if another ACT Act specifically requires an oath, a person can still affirm. Many practitioners assume that certain statutory declarations or court forms must be sworn, but the right to affirm is absolute under this Act. Second, s 15 allows the administrator to require a person to affirm if the person appears incompetent to take an oath. This is a potentially sensitive power: the administrator’s subjective opinion that the person is incompetent to take an oath can override the person’s wish to swear. The administrator must have reasonable grounds, but the provision could be used inappropriately. Third, s 21 allows an alternative form if the person states that a different form would be binding on them. This is broad: it does not require the alternative form to be from any particular religion or culture; it simply requires the person’s statement. However, it is subject to s 6A (members of Assembly must use prescribed forms) and s 15 (requirement to affirm). Fourth, s 22(2) says an oath is valid even if the person had no religious belief. This is a strong curative provision, but it does not require the administrator to inform the person of that fact. If a person takes an oath under pressure without understanding the effect, the validity may still stand. Fifth, s 23 says non‑compliance with Part 2 or 5 does not affect validity. This means that even if the wrong form from the schedule is used, or if the manner is defective (e.g., the person did not say the words aloud but only nodded), the oath or affirmation remains valid. This can be a trap for litigants seeking to attack an affidavit on technical grounds. Sixth, s 27 states that no fee is payable in respect of an oath taken or affirmation made in accordance with this Act. This applies to authorised persons such as JPs and legal practitioners. However, a legal practitioner may still charge for professional services that include the swearing of an affidavit (e.g., as part of a broader retainer), but the Act prohibits a fee solely for the oath itself. Seventh, s 5 provides that several sections are subject to court rules. This means that a court may have made rules that, for example, require a specific form of jurat or specify who can administer an affidavit in that court. Practitioners should always check the current rules, because the Act itself is not the final word on procedures. Eighth, s 24 allows a foreign tribunal to administer oaths in the ACT but imposes two critical limitations: no authority for criminal proceedings, and if the foreign tribunal is not a court or judge, the Minister’s consent is required. Acting without Ministerial consent where required could potentially lead to the evidence being inadmissible and could also breach s 25 (offence). Ninth, the definition of “court” includes a tribunal or person authorised to receive evidence by consent of parties. This means that private arbitrations or mediations where parties consent may fall within the Act’s scope, and the forms may be used. Tenth, the Act’s offence provision (s 25) is one of “wilful” contravention, but the term “wilfully” is not defined in the Act. This could lead to argument over whether recklessness suffices.

Compliance with the Oaths and Affirmations Act 1984 requires attention to the specific provisions that apply to each situation. For an administrator (such as a justice of the peace, notary public, or legal practitioner), the first step is to confirm they are authorised under s 11 for the location where the oath or affirmation will be administered. For in‑person administration within the ACT, the administrator must be a JP, notary, or legal practitioner. For oaths taken outside the ACT, the administrator must check whether the person falls within the expanded categories. If an administrator is acting under a court rule that modifies these provisions (s 5), they must comply with the rule. The administrator must always offer the person the option to affirm rather than swear an oath, and must not pressure the person to swear (s 14). If the person wishes to affirm, the administrator must use the appropriate affirmation form from the relevant schedule, with the necessary variation of the jurat for affidavits (s 13, s 10(2)). For an oath of office, the administrator must ensure the person signs the instrument in their presence and must certify the taking and the date (s 18). For an affidavit, the administrator must administer the oath or affirmation using the form in Schedule 5 (s 10) and must complete the jurat correctly. If the deponent does not understand English, the administrator must arrange for an interpreter and must certify on the affidavit that the interpreter interpreted the contents and the oath, that the deponent seemed to understand, and that the deponent swore or affirmed (s 19). If the deponent is illiterate or blind, the administrator must read the affidavit to the deponent in the administrator’s presence and certify that fact (s 20). The administrator should also ensure the deponent is aware of the content. For a witness in a proceeding, the form in Schedule 2 is used, and the administrator must say the words with the witness (s 17). If the witness is incapable of speaking, signs or other means are permissible (s 17(4)). The administrator should confirm whether the witness wishes to swear or affirm. If a person states that an alternative form would be binding on them (s 21), the administrator may allow it unless the person is a member of the Assembly (s 6A) or the administrator considers it not reasonably practicable (s 15). For members of the Assembly, the oath or affirmation must be taken before the Chief Justice or a judge authorised by the Chief Justice (s 10A), using the forms in Schedule 1A. The member must take both parts (Part 1A.1 and Part 1A.2) before taking their seat (s 6A). For a foreign tribunal, the person appointed by the tribunal must not administer oaths in connection with criminal proceedings (s 24(3)), and if the foreign tribunal is not a court or judge, the person must obtain the Minister’s consent before administering the oath (s 24(2)). The administrator must never require another person to take an oath or administer an oath without being authorised under a law in force in the ACT, or risk an offence under s 25. Finally, no fee may be charged for the oath or affirmation itself (s 27), though professional charges for other services are not prohibited. Practitioners should keep a copy of the Act and the current court rules readily available and train staff on these requirements.