Oaths and Affirmations Act 2018

The Act organises around a small set of distinct but related concepts that govern evidentiary formalities.

• Oath and affirmation. Part 2 defines the framework for oaths and affirmations, confirms that a person may choose between an oath and an affirmation (s 7), prescribes that the words must be said aloud in the presence of the administering officer unless a disability prevents this (s 9), and sets out variations for children and people with cognitive impairment (s 8(3)). Schedule 1 supplies model words for an oath and an affirmation. The Act permits use of religious texts but does not require them and permits non‑theistic formulations (s 10).

• Administering officer and authorised persons. The Act differentiates between persons who may administer an oath or affirmation and specialist roles such as authorised affidavit takers, statutory declaration witnesses and authorised certifiers. Section 12 sets out who has the power to administer oaths and affirmations, while section 19 lists those who are authorised affidavit takers for affidavits made in Victoria. Section 39 lists categories of authorised certifiers for certifying copies.

• Affidavits. Part 3 sets the procedural requirements for affidavits, including signature, jurat, attachment of exhibits, the duties of the authorised affidavit taker and special procedures for illiterate, blind or cognitively impaired deponents (ss 25-28). Electronic signatures are expressly permitted for the signing/initialling requirements (s 18A). The Act allows scanned or electronic copies to be used in certain audiovisual procedures and requires jurats to state when audio visual procedures were used (ss 26(5), 27(1A)).

• Statutory declarations. Part 4 requires statutory declarations to be in the prescribed form, to be declared in the presence of specified witnesses, and to include certain information (ss 30-30A). It allows audio visual witnessing and electronic form with additional prescribed statements about the manner of witnessing (s 30A). It criminalises knowingly making false statutory declarations (s 36).

• Certification of copies. Part 5 Division 2 establishes a scheme to certify copies of original documents as true copies. The authorised certifier must inspect both the original and the copy, ensure identity between them and apply the prescribed words, sign, date and include the certifier’s details on the copy (ss 41-42). The Division does not replace certification by registrars or keepers of official registers where other Acts already provide for that (s 40(2)-(3)).

• Non‑invalidity and judicial discretion. The Act repeatedly protects the evidentiary effect of documents and statements from inadvertent minor non‑compliance (ss 17, 29, 38, 45). It also allows courts and tribunals to admit non‑complying purported affidavits if justified in the interests of justice (s 28A).

• Offences and penalties. The Act creates a range of criminal offences for unauthorised practice (taking or purporting to take affidavits or statutory declarations without authorisation,ss 22 and 31), for false statements and false certifications (ss 36, 47, 48), and for lesser false or misleading statements concerning making or certification of declarations and copies (ss 37, 49). Penalty amounts and maximum custodial sentences are specified in the relevant provisions.

• Regulations and prescription. Section 52 grants the Governor in Council broad regulation‑making power, including prescribing procedures for electronic processes, prescribing classes of authorised persons and prescribing fees for the purposes of the Act.

These concepts form a compact statutory architecture: who can do the formal act, how the formal act must be done (including modern remote and electronic methods), what happens if formalities are not complied with, and criminal sanctions for deliberate abuse.

The Act has direct legal effect on several identifiable groups and indirect effect on users of evidence and certified documents.

• Deponents and declarants. Any person who swears an affidavit or makes a statutory declaration in Victoria is directly regulated by the procedural requirements in Parts 3 and 4. The Act prescribes signature, oral words, jurat information and the need to be in the presence, whether physically or via audio visual link, of the authorised person (ss 25(1), 25(2), 30(3)-(4)).

• Authorised affidavit takers. Section 19 lists classes of persons who are authorised affidavit takers when affidavits are made in Victoria. The list includes judicial officers, associates, honorary justices, court registrars and deputies at various courts, members and former members of state and federal parliaments, public notaries, Australian legal practitioners, police officers at or above sergeant or in charge of a station, specified public servants, senior council officers under the Local Government Act 2020, patent attorneys, fellows of the Institute of Legal Executives (Victoria) and any person acting judicially. The court or tribunal must take judicial and official notice of seals or signatures of those persons on affidavits (s 19(2)-(3)).

• Statutory declaration witnesses. Part 4 lists who may witness statutory declarations (s 30(2)) and includes the same flexibility for witnesses made out of Victoria as exists for affidavits (s 33). People who witness statutory declarations must comply with signature, witnessing and reporting requirements (s 30(3)-(5)), and face offence sanctions if they knowingly purport to be a witness when not authorised (s 31).

• Authorised certifiers. Section 39 permits authorised affidavit takers and statutory declaration witnesses to certify copies, plus persons authorised under other Acts or prescribed classes. Authorised certifiers face duties to inspect originals and copies and to apply prescribed words and identifying details (s 41).

• Courts, tribunals and persons acting judicially. Courts retain their inherent and statutory jurisdictions and powers under s 4. Courts and tribunals take judicial notice of signatures and seals by persons listed in s 19(2) and s 21(3) and may admit non‑complying affidavits in the interests of justice (s 28A). Section 12(1)(a) expressly gives courts and persons acting judicially the power to administer oaths or affirmations to witnesses, interpreters and other persons required to take them.

• Public bodies and the Crown. The Act binds the Crown in right of Victoria and in other capacities insofar as legislative power permits (s 5). The Act also provides for certain roles (registrars, prothonotary etc.) among authorised officers, affecting public administration.

• Overseas and interstate practitioners. The Act recognises affidavits and statutory declarations made outside Victoria by Australian consular officers and other specified employees, and allows justice of the peace equivalents abroad to be sufficient where a local law so requires (ss 21 and 33). Section 13 sets a consent mechanism for persons appointed by interstate or overseas courts to take or receive evidence in Victoria, requiring Attorney‑General consent in non‑judicial cases.

• Intermediaries and assistants. Persons assisting with statutory declarations must identify themselves and state the nature of assistance on the face of the declaration (s 32), unless they are professionals preparing documents for clients, in which case s 32(3) provides an exception for certain professional preparers.

• Professionals and businesses using certified documents. Banks, conveyancers, courts, tribunals, government departments, employers and any entity relying on certified copies or sworn statements will be affected by the Act’s rules on certification (Part 5) and on the evidentiary standing of documents despite minor non‑compliance (s 45 etc). Those who require certified copies will need to ensure certifiers follow inspection and marking procedures (s 41).

• Persons with disabilities and special needs. The Act explicitly contemplates reasonable modifications for people with disability in taking oaths, affirmations and statutory declarations (ss 15 and 34) and provides special rules for illiterate, blind or cognitively impaired persons including mandatory certifications when documents were read to them (ss 28 and 35).

The Act therefore imposes duties and confers authority on public officers, legal practitioners, selected private professionals and various court officers while regulating behaviour of declarants and certifiers who supply evidence and certified copies for legal or administrative purposes.

The Act creates interlocking duties on deponents, authorised officers and certifiers, and provides rights and procedural safeguards.

Duties of deponents and declarants

• Affidavits: The deponent must sign or initial alterations, sign each page and the affidavit, sign exhibit certificates and take the oath or affirmation in the presence of an authorised affidavit taker (s 25(1)(a)-(e)). The oral element must be said aloud in the presence of the authorised affidavit taker unless disability prevents it (s 25(2)).
• Statutory declarations: The declarant must sign alterations, sign each page, sign and date the declaration, write or stamp their name and address on the declaration, and make an oral declaration aloud in the presence of the witness unless prevented by disability (s 30(3)-(4)). Where the statutory declaration is electronic or witnessed by audio visual link, an additional statement about the manner of making or witnessing and whether a scanned copy was used must be included (s 30A).

Duties of authorised affidavit takers and statutory declaration witnesses

• Affidavit takers: Must sign or initial alterations, sign each page, administer the oath or affirmation in accordance with Part 2, comply with jurat requirements and attach and sign certificates for exhibits (s 26(1)-(2), s 27). They must ensure affidavits are dated (s 26(3)). Where audio visual procedures are used and a scanned or electronic copy is used, the affidavit taker must state this in the jurat (s 27(1A)). The deponent’s disability or inability to comply triggers specific certification obligations where the affidavit was read to the deponent (s 28).
• Statutory declaration witnesses: Must sign or initial alterations, sign or initial each page, sign and date the declaration, write or stamp their qualification under s 30(5), and may be the same person who assisted the declarant if authorised (s 30(3)-(6)). They must also certify when a declarant is illiterate, blind or cognitively impaired (s 35).

Certification duties

• Authorised certifiers must inspect the original and the copy and ensure identity before certifying, and must apply prescribed words, sign, date and provide name, qualification and address on the copy (s 41(1)-(2)). For certified copies of certified copies there is a similar duty to inspect the certified copy for apparent authenticity and to ensure the copy is identical (s 42). For multi‑page documents, specific alternative procedures are given (s 43).

Powers and rights to administer

• Courts, tribunals, judicial officers and persons acting judicially have the power to administer oaths and affirmations to appropriate persons (s 12(1)(a)). Other specified persons performing court or tribunal duties, and persons authorised by or under specific Acts or rules of court, are authorised in specified circumstances (s 12(1)(b)-(g) and s 12(2)).

Obligations regarding consent and refusal

• Administering officers must inform a person of the choice between oath and affirmation and may direct an affirmation in specified circumstances (s 7). If an administering officer forms the view that a person cannot understand the nature of an oath or affirmation, the officer must refuse to administer it (s 14).

Disability and modification rights

• Administering officers and statutory declaration witnesses are permitted to make reasonable modifications to accommodate disabilities that prevent compliance with the standard process (s 15 and s 34). Examples are supplied for hearing impaired persons or those unable to speak (Notes to ss 15 and 34).

Protections and discretionary judicial rights

• Courts and tribunals may admit a purported affidavit that does not comply with sections 25-27 if the document states the reason for non‑compliance and the court is satisfied admission is in the interests of justice (s 28A). Sections on minor non‑compliance in Parts 2-5 protect documents from invalidation caused by inadvertent non‑compliance that does not materially affect the nature of the instrument (ss 17, 29, 38, 45).

Rights to use modern means

• The Act permits oaths and affirmations to be said aloud via audio visual or audio link (s 9(2)). It permits electronic signatures and initials for those signature and initialling requirements specified in Parts 3 and 4 (ss 18A and 29A). It allows authorised affidavit takers and statutory declaration witnesses to rely on scanned or electronic copies when audiovisual witnessing is used, with accompanying jurat statements required (ss 26(5), 27(1A), 30A).

Regulatory delegation and prescription

• The Governor in Council may prescribe forms, fees, classes of authorised persons, and procedures for electronic communication and interpreter use (s 52). That power can confer discretionary authorities and impose duties, including penalties not exceeding 20 penalty units for regulation contraventions (s 52(2)(c)-(e)).

These duties and rights create an operational division of labour: declarants are required to observe formalities; authorised officers are required to verify identity, administer oaths in specified ways and record jurat details; certifiers must inspect originals; and courts retain discretion to relax compliance where justified in the interests of justice.

The Act establishes several criminal offences with specified penalties and an infringement notice regime for a narrow class of contraventions. Enforcement instruments are embedded in the text and linked to defined conduct.

Offences for unauthorised practice

• Taking affidavits without authorisation: A person who is knowingly not an authorised affidavit taker must not take an affidavit (s 22(1)). Penalty: 60 penalty units or imprisonment for 6 months or both (s 22(1)).
• Representing oneself as an authorised affidavit taker when not authorised: Penalty: 10 penalty units (s 22(2)).
• Witnessing statutory declarations without authorisation: A person who is knowingly not a statutory declaration witness must not witness a statutory declaration (s 31(1)). Penalty: 60 penalty units or imprisonment for 6 months or both. Representing oneself as a statutory declaration witness when not authorised attracts a 10 penalty unit penalty (s 31(2)).

Offences dealing with dishonesty and falsity

• False statutory declaration: Making a statement in a statutory declaration that the person knows to be untrue is a serious indictable offence (s 36). Penalty: 600 penalty units or imprisonment for 5 years or both.
• Presenting a false copy for certification: Presenting a document for certification as a true copy, knowing it is not a copy of that original, is an indictable offence (s 47). Penalty: 600 penalty units or imprisonment for 5 years or both.
• Certifying a copy when the purported original is not an original or the purported true copy is not a true copy: Offence carrying penalty 600 penalty units or imprisonment for 5 years or both (s 48). Section 48 highlights the definition of original document in s 3 when considering the scope of this offence.
• False or misleading statements as to making of statutory declarations or certification of copies: Lesser offences carrying penalties of 10 penalty units are found in s 37 (statutory declarations) and s 49 (certification statements).

Perjury

• The Act confirms that intentionally making a false statement under oath, affirmation or in an affidavit attracts the penalties of perjury (s 50) and references s 314(2) of the Crimes Act 1958 as the applicable perjury provision.

Infringement notice scheme

• The Act enables police officers to serve an infringement notice for offences against s 20(1) (prohibition on authorised affidavit takers requesting fees) (s 51(1)). The infringement penalty for that offence is 1 penalty unit and the offence is an infringement offence under the Infringements Act 2006 (s 51(2)-(3)).

Administrative enforcement and presumptions

• Courts and tribunals must take judicial and official notice of the seals or signatures of persons listed as authorised affidavit takers and certain out‑of‑Victoria justices of the peace, creating a rebuttable presumption that the signature is genuine and that the person was authorised at the time (ss 19(2)-(3), 21(3)-(4), 33(3)-(4)). Those presumptions ease evidentiary burden but are rebuttable.

Regulatory enforcement

• Section 52(2)(e) allows regulations to impose penalties up to 20 penalty units for contraventions of regulations made under the Act. This creates an administrative enforcement lever for procedural matters addressed by subordinate instruments.

Exception and limitation notes

• Section 20(2) creates a specific exception allowing public notaries to accept fees for taking affidavits when acting for documents intended solely for use outside Australia. Otherwise, authorised affidavit takers named in s 19 are prohibited from requesting or accepting fees for administering oaths and signing affidavits (s 20(1)). The combination of s 20 and s 52 (which permits the prescription of fees) requires administrators to interpret whether specific fees can be prescribed by regulation and how s 20’s prohibition interacts with any regulatory fee structures.

Overall, the Act constructs a graded enforcement scheme: serious dishonest conduct attracts high criminal penalties and potential imprisonment; unauthorised practice attracts medium penalties; false procedural representations attract lower fines; and certain regulatory contraventions may be dealt with by infringement notices or regulation maximum penalties.

The Act is drafted to operate alongside and, where necessary, to displace provisions of earlier legislation while preserving courts’ residual powers. The text itself and the endnotes show multiple interaction points with other Acts.

Preservation of court powers and interaction with Evidence Act 2008

• Section 4 expressly protects the Supreme Court’s inherent, implied and statutory jurisdiction and preserves the statutory or implied jurisdiction of other courts and tribunals and any other powers arising from common law or other Acts. This signals that the Act is not intended to curtail a court’s procedural rules or powers to set forms and practices beyond the Act where expressly permitted.
• Part 2 is limited in application where the Evidence Act 2008 applies: only s 12 of Part 2 applies to oaths and affirmations taken by witnesses in proceedings to which the Evidence Act 2008 applies or to interpreters in those proceedings (s 6(2)). The Explanatory Note in s 6 points to Division 2 of Part 2.1 of the Evidence Act 2008 as setting out requirements for oaths and affirmations in those proceedings.

Repeals and consequential amendments

• The Act repeals named Divisions of the Evidence (Miscellaneous Provisions) Act 1958 and parts of that Act relating to attestations, notarial acts and other matters (ss 53-58). The transitional provisions in Part 7 and the endnotes record consequential amendments to the Evidence Act 2008, the Constitution Act 1975 and the Interpretation of Legislation Act 1984, indicating that the Act was intended to be the primary modern statutory source for these formalities.

Cross‑jurisdictional recognition

• The Act recognises affidavits and statutory declarations made out of Victoria by Australian consular officers and certain Commonwealth employees and allows a justice of the peace or bail justice in another jurisdiction to suffice where a local law requires such a person (ss 21(1)-(3) and 33(1)-(3)). Section 13 permits interstate and overseas judicial officers or persons authorised under foreign laws to appoint a person to take or receive evidence in Victoria, but non‑judicial appointments require the Attorney‑General’s consent.

Interaction with criminal laws

• Section 50 incorporates the perjury regime by reference to the Crimes Act 1958 s 314(2). The high penalties for false statutory declarations and for certifying false copies are also cross‑referenced in the endnotes which cite the Sentencing Act 1991 and Criminal Procedure Act 2009 for the indictable nature and procedure for those offences.

Regulatory interplay

• Section 52 allows regulations to prescribe forms, fees, classes of authorised persons and procedures for electronic processes. That power may be used to harmonise this Act with other statutory schemes that require sworn statements or certified copies, but the Act also makes clear that Division 2 of Part 5 does not apply to certification exercised by keepers of public registers or holders of official records under other Acts (s 40(2)-(3)).

Compatibility with Commonwealth law

• The Act anticipates interactions with Commonwealth provisions that confer authority to take statutory declarations and affidavits under Commonwealth legislation by permitting persons authorised by Commonwealth Acts to act as witnesses or authorised affidavit takers (ss 30(2)(c), 30(2)(b), 39(c)). It also expressly accommodates documents intended for use overseas via the public notary exception in s 20(2).

Electronic and emergency measures

• Amendments documented in the table of amendments reflect the Act’s accommodation of emergency measures (for example, COVID‑19 Omnibus regulations) and later legislative amendments to permit electronic witnessing and signatures (see ss 18A, 29A, 30A and the transitional s 60 added by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021). The transitional provision in s 60 preserves the validity of statutory declarations made under emergency electronic witnessing regulations that were in force before their revocation.

Taken together, the Act functions as a modernising overlay that preserves court power and other statutory regimes, provides for cross‑jurisdictional recognition, integrates with Commonwealth authorities, and leaves detailed procedural matters and harmonisation with other statutory schemes to regulations and rules of court where expressly permitted.

The Act was assented to on 27 February 2018 and commenced on 1 March 2019 under s 2(2). The endnotes and the table of amendments record subsequent legislative changes and consequential timing.

Key amendment milestones recorded in the Act’s published version include:

• COVID‑19 related and system enhancement amendments. The COVID‑19 Omnibus (Emergency Measures) Act 2020 (No. 11/2020) and related regulations introduced and authorised temporary measures to permit electronic witnessing and audio visual procedures; those measures were later reflected in permanent amendments. Multiple provisions were amended or inserted by later Acts to expressly accommodate electronic signatures and audio visual procedures (see insertion of ss 18A, 26(5), 27(1A), 30A and related options).
• Justice Legislation Miscellaneous Amendments Act 2020 (No. 22/2020) made changes including amendments recorded as commencing on 1 July 2020 for certain sections (table of amendments records Ss 21-23 commenced 1.7.20).
• COVID‑19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 (No. 27/2020) made further technical adjustments and amendment commencements are recorded (s 36 commenced 21.10.20).
• Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (No. 11/2021) inserted or amended provisions in April 2021 that formalised audio visual and electronic procedures and added transitional protection for certain statutory declarations made under the COVID emergency regulations (s 60). The s 69 amendments and s 69(4) repeals are recorded in the table as coming into effect on 26 April 2021.
• The Local Government Act 2020 (No. 9/2020) amendment is reflected in s 19(1)(r) as inserted items taking effect on 1 July 2021, listing senior officer of a Council under that Act among authorised affidavit takers.

The table of amendments in the endnotes lists the Acts that modified the Oaths and Affirmations Act 2018: Building Amendment (Registration of Building Trades and Other Matters) Act 2018, Local Government Act 2020, COVID‑19 Omnibus (Emergency Measures) Act 2020, Justice Legislation Miscellaneous Amendments Act 2020, COVID‑19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020, and Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021. Each amendment entry specifies assent and commencement dates and notes about current state.

Transitional provisions and repeals

• Part 7 performs explicit repeals of parts of the Evidence (Miscellaneous Provisions) Act 1958 (ss 53-58). Part 7 also contains a transitional provision added later at s 60 to preserve validity of statutory declarations made under COVID‑19 emergency regulations that were subsequently revoked.

Regulations and subordinate instruments

• Section 52 empowers the Governor in Council to prescribe forms, fees and classes of authorised persons and procedures for electronic communication and signing. That regulatory power means that some operational detail can be changed or clarified by subordinate instruments rather than by primary legislation.

The amendment history shows an initial modernising statute followed by targeted regulatory and legislative updates,particularly to authorise remote and electronic administration,together with transitional preserves for instruments executed under emergency measures. All amendment entries and commencement specifics are recorded in the Act’s endnotes and the table of amendments.

The Act itself does not include case law or judicial decisions. The legislation records no judicial interpretations within its text, and the endnotes contain no list of cases. Where the Act references litigation‑related statutes, it does so by cross‑reference rather than by summarising judicial treatment.

Relevant statutory cross‑references that courts may invoke when litigation arises

• The Act cross‑references the Crimes Act 1958 for perjury penalties (s 50 and note referencing s 314(2)). Courts applying the Act may therefore rely on established perjury procedures under that statute where intentional false statements are alleged under oath or affirmation.
• The Act notes in several places that the non‑compliance protections and judicial discretion provisions are subject to courts’ powers to make rules and to their residual jurisdiction (s 4 and s 18(2)). This preserves avenues for judicial interpretation and for the development of case law in relation to admissibility of non‑complying affidavits and statutory declarations.
• The Act’s heavy reliance on courts taking judicial notice of signatures and seals (s 19(2) and s 21(3)) creates factual presumptions courts will apply unless rebutted. Litigation over the validity of signatures or authorised status will therefore occur in ordinary evidentiary contexts where rebuttal evidence is proffered.

Potential litigation focal points left to courts

• Admission of non‑complying affidavits: Section 28A permits courts to admit purported affidavits that do not comply with ss 25-27 if the document states the reason for non‑compliance and admission is in the interests of justice. That statutory discretion will be a recurring issue in contested proceedings where procedural non‑compliance is relied upon by opposing parties.
• Remote and electronic witnessing: Sections authorising audio visual witnessing and electronic signatures (ss 9(2), 16, 18A, 26(5), 27(1A), 30A) create a potential stream of litigation about the sufficiency and effect of remote procedures when credibility or chain of custody is disputed. The Act requires jurat statements and additional disclosure when scanned or electronic copies are used, which will feature in evidentiary contentions.
• Certification disputes: The certification offences (ss 41-49) and the definition of “original document” in s 3 will generate matters where certifiers’ compliance and the material identity of certified copies are central factual issues. The high penalties for dishonest certification suggest prosecutors may pursue clear cases of false certification; civil litigants may also dispute authenticity of certified copies in private disputes.

No cases are cited or recorded in the Act’s text. Practitioners should expect the Act to generate applied litigation on the issues above as parties dispute evidentiary validity, but the Act gives courts explicit gates and standards that will shape judicial resolution of such disputes.

The Act contains multiple provisions that shift evidentiary practices into modern forms but also create traps for practitioners and certifiers if read or applied superficially.

1. Electronic signatures and scanned copies require procedural disclosures

• Electronic signatures and initials satisfy signature requirements under Parts 3 and 4 (ss 18A and 29A). However, where audio visual witnessing is used and a scanned or electronic copy is used rather than the original, the authorised affidavit taker must include an express jurat statement that the affidavit was signed and sworn by audio visual link and that a scanned or electronic copy was used (s 27(1A)). Similarly, s 30A requires statutory declarations made in electronic form or witnessed by audio visual link to include a statement specifying the manner of making or witnessing and whether a scanned or electronic copy was used. Failure to include these statements may not render the document invalid automatically due to s 28A and s 38 protections, but the absence of the statement creates evidentiary risk and may require judicial explanation.

2. Fee prohibition versus regulation power

• Section 20(1) prohibits authorised affidavit takers listed in s 19 from requesting or accepting a fee for administering an oath or signing an affidavit, subject to a 10 penalty unit penalty. Section 20(2) allows public notaries to accept fees for affidavits for use outside Australia. Meanwhile s 52 permits the Governor in Council to prescribe fees for the purposes of this Act. Practitioners should not assume that regulations prescribing fees will override s 20’s specific prohibition without careful reading of any regulation and the persons to whom it applies.

3. Presumption of authorised status is rebuttable

• Courts must take judicial notice of seals and signatures of persons listed in s 19(2) and of out‑of‑Victoria JPs in s 21(3) and s 33(3). This creates a presumption that the person signed and was authorised. It is rebuttable. Documents that rely on the presumption may still be open to attack with extrinsic evidence showing forgery or lack of authority.

4. Broad regulation‑making power creates delegated discretion

• Section 52 confers regulatory power to prescribe forms, persons, procedures for electronic communication, and fees and may impose penalties up to 20 penalty units. This means operational detail may be implemented by regulations rather than primary legislation, and compliance requires monitoring subordinate instruments.

5. Serious penalties for certifiers and presenters of false documents

• Offences in ss 47 and 48 carry penalties of 600 penalty units or imprisonment for 5 years or both for presenting false copies for certification or certifying false copies. Where doubt exists about whether a document is an “original document” within the meaning of s 3, certifiers must exercise caution and follow inspection duties in s 41 and s 42.

6. Audio and audio‑visual procedures have specific limits

• Part 2 authorises audio and audio visual links for saying oaths aloud (s 9(2)) and for administering oaths to remote witnesses either via the link or by direction and on behalf of the court at the remote point (s 16). However, s 14 requires refusal to administer the oath if the administering officer considers the person cannot understand the nature of the oath or affirmation. Reasonable modifications are permitted (s 15), but the administering officer’s duty to refuse where comprehension is lacking means remote procedures may be unavailable in some disability contexts.

7. Multiple procedural safeguards for illiterate, blind or cognitively impaired persons

• Affidavits and statutory declarations by illiterate, blind or cognitively impaired persons require certification that the document was read to them by the authorised affidavit taker or the statutory declaration witness (ss 28(1) and 35). Absence of this certification bars use of the affidavit unless the court is satisfied the affidavit was read to the deponent (s 28(2)). This requirement is strict and may cause practical evidence exclusion if omitted.

8. Division 2 certification scheme does not displace register keepers

• The certification scheme in Part 5 Division 2 expressly does not apply to certification performed by keepers of registers or holders of official records for extracts or copies of those records (s 40(2)-(3)). Users who rely on certification by registrars should check whether the keeper’s certification regime applies instead.

9. Minor non‑compliance protections are limited to inadvertent, non‑material breaches

• Several provisions protect against documents being invalidated for minor inadvertent non‑compliance (ss 17, 29, 38, 45). However, these protections are limited to inadvertent and non‑material breaches. Deliberate failures or material defects remain vulnerable to exclusion and to criminal prosecution where dishonesty is present.

Practitioners should therefore pay attention to the specific form requirements that trigger extra statements when the electronic or audio visual route is used, the strict inspection duties for certifiers, the interaction between fee prohibitions and regulatory fee prescription, and the potential for high criminal liability for dishonest conduct.

This section sets out practical, source‑grounded steps for compliance with common tasks under the Act: administering oaths/affirmations, taking affidavits, witnessing statutory declarations, and certifying copies.

Administering oaths and affirmations (Part 2)

• Before administering, confirm authority. A person must not administer an oath or affirmation unless authorised by or under this Act or another Act or by convention, except in narrow circumstances explicitly listed (s 12(3)). Check that you are an administering officer under s 12 or under regulations made pursuant to s 52.
• Inform of choice. Administrating officers must inform the person that they may choose between an oath or an affirmation unless satisfied the person already knows (s 7(2)). If the person refuses to choose or cannot reasonably take an appropriate oath, the officer may direct an affirmation (s 7(3)).
• Use the form. Use Schedule 1 or a similar form; for children and persons with cognitive impairment, the simplified words “I promise to tell the truth.” are treated as a similar form (s 8(1)-(3), Sch 1).
• Require oral recitation unless disability prevents it. The words must be said aloud in the presence of the administering officer; audio or audio visual link is permitted (s 9(1)-(2)). If the person cannot understand the nature of an oath or affirmation, the officer must refuse (s 14). Reasonable modifications are permitted for disability (s 15). Keep a record when a modification is used.

Taking affidavits (Part 3)

• Verify authorised status. Ensure you are an authorised affidavit taker under s 19 or by regulation under s 52. Taking an affidavit when knowingly not authorised is an offence (s 22(1)).
• Prescribed form and signature. Use the prescribed form where required (s 23). The deponent must sign alterations, sign each page and sign the affidavit itself in the presence of the authorised affidavit taker; electronic signatures suffice per s 18A (s 25(1)(a)-(c), s 18A).
• Administer the oath and complete jurat. Administer the oath/affirmation in accordance with Part 2 and complete the jurat stating where and when the affidavit was sworn or affirmed, sign it and write/print the authorised affidavit taker’s name, address and capacity (s 26(1)(c) and s 27(1)(a)-(c)). If audio visual procedures and scanned copies were used, include the additional jurat statements required by s 27(1A).
• Exhibits and certificates. If the affidavit refers to documents, attach certificates identifying exhibits and sign/date those certificates noting the details required by s 27(1)(c). Part 5 does not apply to these certificates (s 26(4)).
• Special procedures for illiterate, blind or cognitively impaired deponents. If the deponent cannot read, you must certify in or below the jurat that the affidavit was read to the deponent (s 28(1)). Absent that certification, the affidavit may be inadmissible unless the court is satisfied it was read (s 28(2)).
• Electronic processes. When using audio visual links and scanned copies, follow s 26(5) and include the jurat statement under s 27(1A). Maintain copies of original documents if practicable and note in the jurat where a scanned copy was used.

Witnessing statutory declarations (Part 4)

• Confirm witness authority. Witness statutory declarations only if you are an authorised affidavit taker, a person authorised under any other Act, an authorised Commonwealth official, or a prescribed person (s 30(2)). Knowingly acting when not authorised is an offence (s 31).
• Use the prescribed form and follow signing steps. Ensure the statutory declaration is in the prescribed form (s 30(1)). The declarant and witness must sign alterations and each page, the witness must sign and date the declaration and write or stamp their qualification under s 30(5), and the declarant must make the oral declaration aloud in the presence of the witness unless prevented by disability (s 30(3)-(5)).
• Assistants. If you assist a declarant with reading or translation, record your name and address and the type of assistance on the face of the document unless you are a professional preparer exempted by s 32(3).
• Electronic and audio visual witnessing. For declarations made electronically or witnessed by audio visual link, use a scanned or electronic copy if needed (s 30A(1)). The declaration must include a statement identifying the manner of making or witnessing and whether a scanned copy was used (s 30A(2)). Keep contemporaneous records of the audio visual session and the scanned copies used.

Certifying copies (Part 5 Division 2)

• Confirm authorised certifier status. Only authorised certifiers may certify copies (s 39). Check that you fall within s 39 categories or are prescribed under regulations.
• Inspect original and copy. Before certifying a copy, inspect the original to ensure it is an original document, and inspect the copy to ensure it is identical (s 41(1)). The Act defines “original document” for this purpose (s 3).
• Apply the prescribed words and provide identity details. Legibly write or stamp the prescribed words on the copy, sign and date the copy and legibly write or stamp your name, qualification and address (s 41(2)). For multiple page documents, follow the alternative procedure in s 43.
• Certified copies of certified copies. When certifying a copy of a certified copy, inspect the certified copy for apparent authenticity and confirm the copy is identical to the certified copy. Then apply the required words and details (s 42).
• Language and translation. You may certify documents in languages other than English if you are satisfied the copy and original are identical (s 44). For foreign language documents, consider whether a separate certified translation is required by the receiving body.
• Beware of strict offences. Do not certify a copy you know to be false or present a false copy for certification; these are serious offences (ss 47-48).

Record keeping and disclosure

• Maintain contemporaneous records of remote sessions, scanned copies used, and jurat statements for audio visual witnessing per ss 26(5), 27(1A) and 30A(2). Where the law requires a certificate that a document was read to a deponent or declarant, ensure that certification appears on the face of the document (ss 28 and 35).

Regulatory compliance

• Monitor regulations under s 52 for prescribed forms, classes of authorised persons and procedures for electronic communication and interpreter use. Regulations may prescribe additional procedural requirements or fees relevant to compliance.

Avoiding criminal risk

• Do not act outside your authorised role. Knowingly taking affidavits or witnessing declarations when you are not authorised risks the medium to high penalties in ss 22 and 31.
• Exercise due diligence on originals. When certifying, ensure you have examined the original and genuinely verified identity between original and copy to avoid contravening ss 47-48.

Following these procedural steps, closely referencing the relevant sections of the Act, and keeping records of any electronic or audio visual procedures will materially reduce compliance risk and align practice with the statutory requirements set out in the Oaths and Affirmations Act 2018.