Oaths Regulations 2021

The regulations revolve around five core concepts. First, statutory declaration and affidavit are the two types of sworn or affirmed statements governed. A statutory declaration is made under section 25 of the Oaths Act 1936 and is used for non-curial purposes - for example, confirming facts to government agencies or private parties. An affidavit is sworn or affirmed before an authorised person under section 27A and is typically used in court or tribunal proceedings. Second, the declarant (s 4) and deponent (s 6) are the individuals making the statement. The regulations impose obligations on them to sign in a certain manner and under observation. Third, the authorised witness (for statutory declarations) and authorised person (for affidavits) are the individuals who witness the signing, establish identity, and execute the document. They must be drawn from the classes prescribed in regulations 5 and 7 respectively. These classes are expanded lists beyond those in the Oaths Act itself. Fourth, audio visual link is a critical concept introduced by the 2024 amendments. It permits remote witnessing where both parties can see and hear each other. The regulations require specific statements to be included in the document when remote witnessing is used, and they permit signing even if the parties are in different states or outside South Australia. Fifth, electronic signature is permitted under regulations 4(7)-(9) and 6(7)-(9). The regulations adopt a functional equivalence approach: the method must identify the person and indicate intention, and must be either as reliable as appropriate for the purpose or proven in fact to have fulfilled those functions. The document must contain a statement that it was signed electronically. Connected concepts include sighting identification - the witness must verify the declarant/deponent’s identity by inspecting identification documents, whether in person or remotely. The regulations also introduce reasonable modifications for persons with disabilities or children under 18. This allows the witness to alter the process - for example, a hearing impaired person may read the declaration instead of reciting it aloud, or a person unable to speak may nod assent. The concept of illiteracy or blindness triggers a mandatory duty for the witness to certify that the document was read to the person. Finally, assistance is regulated: if a person requires help to make the declaration or affidavit, the witness must record the helper’s name and address and the nature of assistance, unless the helper is a professional such as a legal practitioner or registered conveyancer. These concepts collectively aim to balance formal validity with accessibility and technological convenience.

The regulations have a broad operational reach, affecting at least six distinct groups. Primary Affected Parties: (1) Declarants and deponents - any individual who needs to make a statutory declaration or affidavit in South Australia. This includes parties to litigation, applicants for licences or permits, witnesses in proceedings, and persons providing evidence to government agencies. The regulations directly affect the process they must follow. (2) Authorised witnesses and authorised persons - the individuals who are statutorily empowered to witness declarations and affidavits. Regulation 5 lists over 25 classes for statutory declarations, from bank officers with five years’ service and building society officers to members of Engineers Australia, patent attorneys, teachers, and veterinary surgeons. Regulation 7 lists for affidavits a separate set including inspectors under various SA Acts (Explosives Act, Fair Work Act, Long Service Leave Act, etc.), members of the Australian Federal Police, and certain Commonwealth APS Level 6+ employees with delegated bankruptcy or PPSA functions. These people must comply with the procedural duties in regulations 4 and 6. (3) Professional intermediaries - legal practitioners and registered conveyancers are explicitly exempted from the requirement to record their name and address when assisting a declarant/deponent (regs 4(6), 6(6)). They are the default drafters of many declarations and affidavits and must ensure the document contains all prescribed statements. (4) Persons with disabilities, children, illiterate or blind persons - the regulations specifically create modified procedures for these groups. They are entitled to reasonable modifications (regs 4(3), 6(3)) and, in the case of illiteracy or blindness, to have the document read to them and certified. (5) Out-of-state parties - because regulations 4(10) and 6(10) allow remote signing even if the declarant or witness is located outside South Australia, this affects persons in other Australian states and territories, and potentially overseas, who become involved in SA declarations or affidavits. (6) Government agencies and courts - the regulations indirectly affect how these bodies receive and assess statutory declarations and affidavits. The prescribed forms and statements increase documentary consistency, but also impose burdens: an officer receiving a declaration must check that it includes the required statements, and a court may need to consider whether non-compliance affects admissibility. Secondary effects: employers of persons listed as authorised witnesses - e.g., banks, Australia Post, government departments - must ensure their employees understand their obligations. The regulations also affect the market for digital platforms that facilitate audio visual link witnessing, because they impose specific recording requirements. Compliance costs fall on all these groups. For an individual making a declaration, the cost is time and access to an authorised witness. For a professional, the cost includes ensuring software or processes comply with the electronic signature and remote witnessing rules.

Duties of the authorised witness/person. The regulations impose a series of mandatory duties on the person witnessing a statutory declaration or affidavit. Under regulation 4(1)(c) and 6(1)(ca), the witness must observe the declarant/deponent signing the document, whether in person or via audio visual link. This is an active duty: the witness cannot simply receive a pre-signed document. The witness must then sign after the declarant/deponent has signed (regs 4(1)(d), 6(1)(cb)). The witness must establish the identity of the declarant/deponent by sighting identification (regs 4(1)(e), 6(1)(cc)). Where the declarant appears illiterate or blind, the witness must certify on the face of the document that the witness read the document to the declarant (regs 4(4), 6(4)). Where a third party assists the declarant, the witness must write on the face of the document the assistant’s name, address, and the nature of assistance, subject to the professional preparer exception (regs 4(5)-(6), 6(5)-(6)). The witness may make reasonable modifications to the process if the declarant/deponent has a disability or is under 18 (regs 4(3), 6(3)). In all cases, the witness must ensure the document contains the prescribed statements, including the remote witnessing statement if applicable (regs 4(1a), 6(2)) and the electronic signature statement if applicable (regs 4(9), 6(9)). Rights of the declarant/deponent. Declarants and deponents have a right to have their document witnessed remotely if both parties have appropriate audio visual link technology. They have a right to use electronic signatures, provided the method meets the legal standard. They have a right to reasonable modifications if they have a disability or are under 18. They have a right to have a third party assist them, though the assistant’s details must be recorded unless the assistant is a legal practitioner or registered conveyancer. They also have a right to have the document signed even if they are located outside South Australia (regs 4(10), 6(10)). Duties of the declarant/deponent. They must state their name, the date, and, for statutory declarations, the statement “I, [name] do solemnly and sincerely declare” before the contents (reg 4(1)(b)). They must sign under observation. Rights of the authorised witness. The witness can rely on the savings provision in regulation 4(2): failure to state the basis of authority does not invalidate the declaration. The witness is not required to make unwarranted inquiries about the declarant’s capacity beyond what appears obvious, but must act on appearances (e.g., illiteracy). Non-compliance consequences. The regulations explicitly provide that a statutory declaration is not invalid solely for failure to state the basis of authority (reg 4(2)). No similar savings clause exists for affidavits, but the common law would likely apply a similarly pragmatic approach. However, substantial non-compliance - e.g., failure to observe signing - could render the statement irregular and potentially inadmissible or deprive it of evidentiary weight.

The regulations themselves do not create any criminal or pecuniary penalties. All penalty provisions for false statements sit in the Oaths Act 1936. Under section 25 of that Act, a person who makes a false statutory declaration is liable to prosecution for an offence similar to perjury. Similarly, the common law and other statutes provide penalties for giving false evidence on oath in an affidavit. The regulations therefore do not add or modify penalty amounts. Enforcement of the regulations is indirect: a statutory declaration or affidavit that fails to comply with the prescribed requirements may be rejected by the recipient agency, court, or tribunal, or may be challenged as invalid. The cost of that rejection falls on the party who provided it - delays, re-drafting, and potential costs in litigation. There is one explicit relief provision: regulation 4(2) states that a statutory declaration is not invalid merely because the basis of the witness’s authority is not stated on the face. This provides a limited safe harbour. For other requirements, there is no similar relief, so non-compliance may lead to invalidity. The power to enforce proper compliance lies primarily with courts and administrative decision-makers who can refuse to accept a defective declaration or affidavit. There is no inspectorate or regulator responsible for policing compliance; it is a matter of private diligence. However, professional bodies for listed authorised witnesses (e.g., professional accounting bodies, Governance Institute, Engineers Australia) may impose their own ethical or disciplinary consequences on members who fail to comply with the law when witnessing. The regulations also have implications for professional indemnity: a legal practitioner who prepares a declaration or affidavit that does not include the required statements may be exposed to a negligence claim. The 2024 amendments adding remote witnessing and electronic signatures increase the risk of non-compliance because they require specific additional statements (e.g., the remote witnessing statement in regs 4(1a), 6(2); the electronic signature statement in regs 4(9), 6(9)). An authorised witness who omits these statements may render the document non-compliant, potentially exposing the witness to civil liability if the document’s rejection causes loss. In summary, the regulatory backstop is not criminal enforcement by the state but civil risk and evidentiary consequences.

The regulations sit under the Oaths Act 1936 (SA), section 25 (statutory declarations) and section 27A (affidavits). They are subordinate legislation and must be consistent with the parent Act. Where the Act itself sets out a requirement - for example, the list of persons before whom a statutory declaration may be made in Schedule 1 - the regulations add to that list. Regulation 5 prescribes additional classes for the purposes of section 25(2), and regulation 7 prescribes additional classes for the purposes of section 27A(3). The regulations do not purport to override the Act. The regulations also interact with a range of other South Australian and Commonwealth legislation. For example, the persons authorised to take affidavits under regulation 7 include inspectors appointed under the Employment Agents Registration Act 1993, the Explosives Act 1936, the Fair Work Act 1994, the Long Service Leave Act 1987, and the Mines and Works Inspection Act 1920. Those inspectors gain an additional function under the Oaths framework. Similarly, regulation 5 lists agents of the Australian Postal Corporation, employees of the Commonwealth in foreign countries, and members of the Australian Defence Force, all drawing on definitions from Commonwealth Acts (e.g., Consular Fees Act 1955, Marriage Act 1961, Defence Force Discipline Act 1982). The regulations therefore create a web of cross-jurisdictional referencing. For persons located outside South Australia executing declarations or affidavits remotely under regulations 4(10) and 6(10), the interaction with the law of the place where the declarant or witness is physically present becomes relevant. The regulations do not purport to authorise an act that would be illegal under that other jurisdiction’s law; they only say that the document may be signed even if the parties are located outside the State. This raises potential conflicts of law if, for instance, a witness in another state is not ordinarily authorised under that state’s laws to witness a South Australian declaration. However, the Oaths Act 1936 and the regulations are directed at the form and validity of the document under South Australian law; the location of the signatory is not ordinarily a barrier. The electronic signature provisions (regs 4(7)-(9), 6(7)-(9)) adopt a standard similar to the Electronic Transactions Act (SA) and the Electronic Transactions Act 1999 (Cth). The functional equivalence test - method as reliable as appropriate or proven in fact - is consistent with the general law of electronic signatures. There is no direct override of other electronic transactions laws, but the regulations fill a gap: the Oaths Act itself does not specifically permit electronic signatures, so the regulations provide the necessary authorisation and conditions. The reasonable modifications provisions (regs 4(3), 6(3)) interact with anti-discrimination laws (e.g., Disability Discrimination Act 1992 (Cth), Equal Opportunity Act 1984 (SA)) by providing a lawful framework for accommodation. The regulations do not confer a right to demand modifications; they merely permit the witness to make them. If a witness unreasonably refuses modifications, the declarant may have recourse under discrimination law.

The Oaths Regulations 2021 were initially made on 25 November 2021 (Gazette 2021, No. 175) and commenced on 1 December 2021. The regulations replaced previous regulations under the Oaths Act. The current version reflects amendments made by the Oaths (Miscellaneous) Variation Regulations 2024 (No. 87 of 2024), gazetted on 22 August 2024, with a staged commencement. Most provisions of the 2024 amendment came into effect on 22 August 2024, but the significant changes to Parts 2 and 3 (regulations 3, 4 and 5 of the amending instrument) were deferred to 1 January 2025. Specifically, regulation 1 of the amending instrument (short title) and regulation 2 (commencement) set out this staged timing. The amendment to regulation 7 (which added new classes of persons authorised to take affidavits) took effect on 22 August 2024. The amendments to regulation 4 (statutory declaration requirements) - including the insertion of subregulation (1a) (remote witnessing statement) and subregulations (3)-(10) (modifications, electronic signing, cross-border) - took effect on 1 January 2025. Similarly, the amendments to regulation 6 (affidavit requirements) - the insertion of subregulations (2)-(10) - took effect on 1 January 2025. The legislative history also notes that regulation 2 (commencement) was omitted under the Legislation Revision and Publication Act 2002 on 22 August 2024, likely because it was spent after the initial regulation commenced. The original 2021 version of regulation 4 and 6 was much shorter: they only contained the basic content requirements (name, date, etc.) and did not address remote witnessing, electronic signatures, modifications or cross-border execution. The 2024 amendments were thus substantial, effectively introducing modern execution methods that had become standard practice during the COVID-19 pandemic and were later codified. The amendment also updated the lists of authorised persons: for example, regulation 5 was amended to add new classes (e.g., see the list now includes a bank officer with 5+ years, building society officer, credit union officer, and others - though these may have been in the original 2021 version; the amendment may have added or tweaked specific entries). The historical versions available (22.8.2024) show the regulations as they stood before the 1 January 2025 changes took effect. Practitioners need to be aware of this staged commencement: for any statutory declaration or affidavit made between 22 August 2024 and 31 December 2024, the old version of regulations 4 and 6 applies, without the remote witnessing and electronic signature provisions. From 1 January 2025, the full new requirements apply. This transitional landscape is important for compliance.

The source does not provide any case law or litigation history. As delegated legislation that only came into operation in December 2021, with major amendments delayed to January 2025, there is no recorded judicial consideration of these specific regulations. The provisions on remote witnessing and electronic signatures are very recent and have not been tested in South Australian courts. However, similar provisions in other Australian jurisdictions have been litigated or subject to interpretive guidance. For example, the question of whether a statutory declaration made via video link without the prescribed statement of remote witnessing is valid could arise. The savings clause in regulation 4(2) is narrow and applies only to the failure to state the witness’s basis of authority. For other failures - e.g., failing to include the remote witnessing statement - the regulation does not provide a savings provision, so a court could find the document invalid. Litigation could also arise around the “reasonable modifications” provisions: what modifications are considered reasonable, and whether a witness’s refusal to modify amounts to unlawful discrimination. The regulations give the witness discretion, but a court could be called upon to assess whether the exercise of that discretion was proper. Another potential area of dispute is the electronic signature provisions: the requirement that the method be “as reliable as appropriate for the purpose” (reg 4(8)(b)(i)) introduces a standard that may be contested in cases where the integrity of the signature is challenged. Also, the cross-border provisions (regs 4(10), 6(10)) may conflict with the laws of other states or countries that require physical presence. While the regulations purport to allow signing even if the parties are outside SA, a court in another jurisdiction might not recognise the validity of such a document for its own purposes. Until a case arises, cautious practitioners should ensure strict compliance with all prescribed statements and processes.

Several less obvious traps exist in the regulations that practitioners and witnesses should watch for. Gotcha 1 - the remote witnessing statement is mandatory but easily overlooked. Regulations 4(1a) and 6(2) require that if the declaration or affidavit is taken via audio visual link, the document must contain a specific statement reciting that fact. The exact wording is prescribed in the regulations. If this statement is omitted, the document is non-compliant, and there is no savings clause for this omission. Even if the witnessing was properly conducted remotely, the absence of the statement could lead to rejection. Gotcha 2 - electronic signature requires an additional statement. Under regulations 4(9) and 6(9), if the document is signed or initialled electronically, it “must include a statement that the declaration was signed or initialled by electronic means”. Again, no savings clause. This means a document that is electronically signed but does not contain that note is arguably defective. Gotcha 3 - the basis of authority is recommended but not fatal. Regulation 4(1)(a)(iv) requires the declaration to state the basis on which the authorised witness is authorised. However, regulation 4(2) says failure to state that basis does not invalidate the declaration. This creates a disconnect: the form requires it, but the consequence of omission is waived. Practitioners might be tempted to omit it, but doing so may still cause procedural delays if the receiving party questions the witness’s authority. It is safer to always include it. Gotcha 4 - the assistance recording requirement has a narrow professional exception. If a third party helps the declarant or deponent, the witness must record the assistant’s name and address and the nature of assistance (regs 4(5), 6(5)). The exception only applies if the assistant “prepares or writes statutory declarations in a professional capacity” and is a legal practitioner or registered conveyancer. This does not cover accountants, real estate agents, or other professionals who might routinely draft such documents. The exception is narrower than some expect. Gotcha 5 - the five-year continuous service requirement for certain classes. Several classes in regulation 5 require “5 or more years of continuous service” - e.g., bank officer, building society officer, credit union officer, finance company officer, Australia Post permanent employee with five years, and the catch-all permanent employee of a government authority. A person who has worked for four years and nine months is not authorised, even if otherwise competent. Gotcha 6 - the illiteracy or blindness certification is mandatory. If it appears to the witness that the declarant is illiterate or blind, the witness must certify on the face that the document was read to the declarant (regs 4(4), 6(4)). Failure to do so when the fact is apparent could render the witness’s acknowledgment unreliable. Gotcha 7 - electronic signature must be as reliable as appropriate or proven in fact. The two-part test in regulation 4(8) is not a simple click-and-sign. The witness must consider whether the method is appropriate given the purpose. For a high-value statutory declaration, a simple typed name in an email may not be reliable enough. A digital signature with cryptographic verification likely suffices. Gotcha 8 - cross-border signing is allowed, but only for remote audio visual link cases. Regulations 4(10) and 6(10) provide that the document may be signed even if the parties are outside the State, but only when the taking was done via audio visual link in accordance with the regulation. If the declaration is taken in person and one party is physically outside SA, the regulations do not address that scenario. Gotcha 9 - the definition of “audio visual link” is not defined in the regulations, only implied. The regulations refer to “audio visual link” without defining it. This leaves open the question of what quality or latency is acceptable. A one-way video call may not suffice because the witness must “observe” the signing. Gotcha 10 - the regulation 5 list is exhaustive for statutory declarations, but regulation 7 list for affidavits is partially open-ended. Regulation 7(a) includes “any person empowered, authorised or permitted by or under any Act or rules of a court or tribunal to take affidavits”. This is a catch-all that picks up all other legislation, whereas regulation 5 does not contain a similar catch-all for statutory declarations; it only lists specific classes.

Compliance with the Oaths Regulations 2021 requires careful attention to both substance and form at each step of making a statutory declaration or affidavit. Step 1 - Determine which rules apply. Check the date the document is made. If before 1 January 2025, the old regulations (without remote witnessing and electronic signature provisions) apply. From 1 January 2025, the new rules are in force. For cross-border remote documents, ensure they are made after 1 January 2025 if using those provisions. Step 2 - Select an authorised witness or person. For a statutory declaration, choose a person who falls within one of the classes listed in regulation 5. Verify the person meets any service length requirement (e.g., 5 years continuous service). For an affidavit, choose a person within regulation 7, or a person authorised under another Act or court rule. Record the basis of authority in the document (even though omission does not invalidate a statutory declaration, it is best practice). Step 3 - Prepare the document with the required statements. For a statutory declaration, ensure it includes: the declarant’s name; a statement that it is made under the Oaths Act 1936; the date; the witness’s name and basis of authority; before the contents, the phrase “I, [name] do solemnly and sincerely declare”. For an affidavit, include: deponent’s name; place and date; authorised person’s name; a clause providing for signature of the authorised person and the date sworn or affirmed; clear identification of any annexures. Step 4 - If using audio visual link, add the prescribed statement. Include the exact statement from regulation 4(1a) for statutory declarations or regulation 6(2) for affidavits, reciting that the document was taken remotely and that requirements were complied with. Step 5 - If using electronic signature, add a statement to that effect. Under regulations 4(9) and 6(9), state that the document was signed or initialled by electronic means. Ensure the electronic signature method satisfies the test in regulations 4(8)/6(8) - it must identify the person and indicate intention, and be as reliable as appropriate or proven in fact. Step 6 - Conduct the witnessing properly. In person or via audio visual link, the witness must observe the declarant/deponent sign. The witness then signs after. The witness must sight identification and be satisfied as to identity. Keep a note of the identification method used for due diligence. Step 7 - Handle disability or illiteracy appropriately. If the declarant has a disability or is under 18, the witness may make reasonable modifications. Document the modifications. If the person is illiterate or blind, the witness must certify on the face that the document was read to them. If a third party assists, write that person’s name, address, and nature of assistance on the face, unless the assistant is a legal practitioner or registered conveyancer. Step 8 - Retain evidence of compliance. While the regulations do not mandate record-keeping, the witness should retain a copy of the identification sighted, the signed document, and any notes on modifications or assistance. This may be crucial if the document’s validity is later challenged. Step 9 - For cross-border remote documents, confirm the other jurisdiction’s position. Although the regulations permit signing even if the parties are outside SA, the witness should consider whether the other jurisdiction’s laws prohibit such action. Step 10 - Review the final document for completeness. Check that all required statements are present and that the document is signed and initialled in the correct sequence. Ensure any annexures are clearly marked and cross-referenced. If in doubt, seek legal advice. Compliance is largely a matter of form and process, not of approval by any authority. A well-compliant document will be accepted without challenge; a non-compliant one may cause delay, cost, and evidentiary risk.