1Oaths Regulations 2021

South Australia Oaths Regulations 2021 under the Oaths Act 1936

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Statutory declarations 4 Requirements for the taking of statutory declarations (section 25) 5 Classes of persons before whom statutory declarations may be made Part 3—Affidavits 6 Requirements for the taking of affidavits (section 27A) 7 Classes of person authorised to take affidavits Legislative history

Part 1—Preliminary 1—Short title These regulations may be cited as the Oaths Regulations 2021. 3—Interpretation In these regulations— Act means the Oaths Act 1936. Part 2—Statutory declarations 4—Requirements for the taking of statutory declarations (section 25) (1) For the purposes of section 25(1)(a) of the Act, the following requirements are prescribed: (a) the requirement that the statutory declaration state the following: (i) the name of the person making the declaration (the declarant); (ii) that the declaration is made under the Oaths Act 1936; (iii) the date on which the declaration is made; (iv) the name of the person witnessing the declaration (the authorised witness) and the basis on which the authorised witness is authorised to do so pursuant to section 25(2) of the Act; (b) the requirement that, before the contents of the declaration, the statutory declaration include the statement: I, [insert name of declarant] do solemnly and sincerely declare (c) the requirement that the statutory declaration be signed by the declarant under the observation of the authorised witness whether in person or remotely through an audio visual link; (d) the requirement that the authorised witness sign the statutory declaration after the declarant has signed it in accordance with paragraph (c); (e) the requirement that the authorised witness establish the identity of the declarant by sighting identification whether in person or remotely through an audio visual link. (1a) For the purposes of subregulation (1)(c), if a declaration is taken in circumstances where the authorised witness and the declarant meet remotely through an audio visual link, the declaration must include the statement: This declaration was taken remotely under the observation of the authorised witness through an audio visual link and the requirements under the Oaths Act 1936 for taking declarations by audio visual link were complied with. (2) A statutory declaration is not invalid merely because there has been a failure to comply with the requirement in subregulation (1)(a)(iv) to state the basis on which the authorised witness is authorised to witness the statutory declaration pursuant to section 25(2) of the Act. (3) The authorised witness may make or permit reasonable modifications to the process of making a statutory declaration if— (a) the declarant has a disability that prevents the person from making the declaration in accordance with the Act and these regulations; or (b) the declarant is a child under the age of 18. Example— A hearing impaired person may read and sign the oral declaration instead of saying it aloud. A person who is unable to speak may be able to listen to a statutory declaration being read and nod assent. (4) Without limiting subregulation (3), if it appears to an authorised witness that the declarant is illiterate or blind, the authorised witness must certify on the face of the statutory declaration that the statutory declaration was read to the declarant by the authorised witness. (5) If a declarant requires assistance to make a statutory declaration, the authorised witness must write on the face of the statutory declaration, the name and address of the person who provided the assistance and explain the nature of the assistance provided to the declarant. (6) The requirement referred to in subregulation (5) to write on the face of the statutory declaration the name and address of the person who provided assistance to a declarant does not apply in relation to a person who prepares or writes statutory declarations in a professional capacity, including— (a) a legal practitioner; or (b) a registered conveyancer. (7) A requirement for a declarant or an authorised witness to sign or initial a statutory declaration, annexure or other document attached to a statutory declaration is satisfied if the declarant or the authorised witness signs or initials the statutory declaration, annexure or other document by electronic means. (8) An initial or a signature is executed by electronic means for the purposes of subregulation (7) if— (a) a method is used to identify the person and to indicate the person's intention in respect of the statutory declaration; and (b) the method used was either— (i) as reliable as appropriate for the purpose for which the statutory declaration was made in all the circumstances; or (ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence. (9) A statutory declaration that is signed or initialled by electronic means in accordance with subregulation (7), must include a statement that the declaration was signed or initialled by electronic means. (10) A statutory declaration taken in circumstances where the authorised witness and the declarant meet remotely through an audio visual link in accordance with this regulation may be signed by the declarant and the authorised witness even if the declarant or witness (or both) are located outside the State. 5—Classes of persons before whom statutory declarations may be made For the purposes of Schedule 1 clause 1(f) of the Act, the following are prescribed as classes of persons before whom a statutory declaration may be made for the purposes of section 25(2) of the Act: (a) an agent of the Australian Postal Corporation in charge of an office supplying postal services to the public; (b) an Australian Consular Officer or an Australian Diplomatic Officer within the meaning of the Consular Fees Act 1955 of the Commonwealth; (c) a bailiff; (d) a bank officer who has 5 or more years of continuous service; (e) a building society officer who has 5 or more years of continuous service; (f) a chief executive officer of a Commonwealth court; (g) a clerk of a court; (h) a credit union officer who has 5 or more years of continuous service; (i) an employee of the Australian Trade and Investment Commission who is— (i) in a country or place outside Australia; and (ii) authorised under paragraph 3(d) of the Consular Fees Act 1955 of the Commonwealth; and (iii) exercising their function in that place; (j) an employee of the Commonwealth who is— (i) in a country or place outside Australia; and (ii) authorised under paragraph 3(c) of the Consular Fees Act 1955 of the Commonwealth; and (iii) exercising their function in that place; (k) a fellow of the National Tax and Accountants' Association; (l) a registered health practitioner; (m) a finance company officer who has 5 or more years of continuous service; (n) a marriage celebrant registered under Part IV Division 1 Subdivision C of the Marriage Act 1961 of the Commonwealth; (o) a member of the Governance Institute of Australia; (p) a member of Engineers Australia, other than at the student grade; (q) a member of the Association of Taxation and Management Accountants; (r) a member of the Australasian Institute of Mining and Metallurgy; (s) a member of the Australian Defence Force who is— (i) an officer; or (ii) a non-commissioned officer within the meaning of the Defense Force Discipline Act 1982 of the Commonwealth who has 5 or more years of continuous service; or (iii) a warrant officer within the meaning of the Defense Force Discipline Act 1982 of the Commonwealth; (t) a member of the Institute of Chartered Accountants in Australia, CPA Australia or the Institute of Public Accountants; (u) a Member of— (i) the Parliament of the Commonwealth; or (ii) the Parliament of a State; or (iii) a Territory legislature; or (iv) a local government authority of a State or Territory; (v) a minister of religion registered under Part IV Division 1 Subdivision A of the Marriage Act 1961 of the Commonwealth; (w) a patent attorney or a trade marks attorneys; (x) a permanent employee of the Australian Postal Corporation who has 5 or more years of continuous service who is employed in an office supplying postal services to the public; (y) a permanent employee of— (i) the Commonwealth or a Commonwealth authority; or (ii) a State or Territory or a State or Territory authority; or (iii) a local government authority, with 5 or more years of continuous service who is not specified in another item in this list; (z) a Senior Executive Service employee of— (i) the Commonwealth or a Commonwealth authority; or (ii) a State or Territory or a State or Territory authority; (za) a sheriff; (zb) a sheriff's officer; (zc) a teacher employed on a full-time basis at a school or tertiary education institution; (zd) a veterinary surgeon. Part 3—Affidavits 6—Requirements for the taking of affidavits (section 27A) (1) For the purposes of section 27A(1)(a)(I) of the Act, an affidavit must comply with the following requirements: (a) that the affidavit state the name of the person making the affidavit (the deponent); (b) that the affidavit state the place at, and date on, which the affidavit is made; (c) that the affidavit state the name of the person authorised to witness the affidavit pursuant to section 27A(3) of the Act (the authorised person); (ca) that the affidavit be signed by the deponent under the observation of the authorised person whether in person or remotely through an audio visual link; (cb) that the authorised person sign the affidavit after the deponent has signed it in accordance with paragraph (ca); (cc) that the authorised person establish the identity of the deponent by sighting identification whether in person or remotely through an audio visual link; (d) that the affidavit state that the contents of the affidavit are sworn or affirmed (as the case may be); (e) if the affidavit includes an annexure or exhibit, the identification of the annexure or exhibit is clear and corresponds to the reference given to the annexure or exhibit in the affidavit; (f) that the affidavit contains a clause that provides for the signature of the authorised person and the date on which the affidavit was sworn or affirmed before the authorised person. (2) For the purposes of subregulation (1)(ca), if an affidavit is taken in circumstances where the authorised person and the deponent meet remotely through an audio visual link, the affidavit must include the statement: This affidavit was witnessed remotely under the observation of the authorised person through an audio visual link and the requirements under the Oaths Act 1936 for taking affidavits by audio visual link were complied with. (3) The authorised person may make or permit reasonable modifications to the process of taking an affidavit if— (a) the deponent has a disability that prevents the person from making the affidavit in accordance with the Act and these regulations; or (b) the deponent is a child under the age of 18. (4) Without limiting subregulation (3), if it appears to an authorised person that the deponent is illiterate or blind, the authorised person must certify on the face of the affidavit that the affidavit was read to the deponent by the authorised person. (5) If a deponent requires assistance to take an affidavit, the authorised person must write on the face of the affidavit the name and address of the person who provided the assistance and explain the nature of the assistance provided to the deponent. (6) The requirement referred to in subregulation (5) to write on the face of the affidavit the name and address of the person who provided assistance to a deponent does not apply in relation to a person who prepares or writes affidavits in a professional capacity, including— (a) a legal practitioner; or (b) a registered conveyancer. (7) A requirement for a deponent or an authorised person to sign or initial an affidavit, annexure or other document attached to an affidavit is satisfied if the deponent or the authorised person signs or initials the affidavit, annexure or other document by electronic means. (8) An initial or a signature is executed by electronic means for the purposes of subregulation (7) if— (a) a method is used to identify the person and to indicate the person's intention in respect of the affidavit; and (b) the method used was either— (i) as reliable as appropriate for the purpose for which the affidavit was made, in all the circumstances; or (ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence. (9) An affidavit that is signed or initialled by electronic means in accordance with subregulation (7) must include a statement that the affidavit was signed or initialled by electronic means. (10) An affidavit taken in circumstances where the authorised person and the deponent meet remotely through an audio visual link in accordance with this regulation may be signed by the deponent and the authorised person even if the deponent or the authorised person (or both) are located outside the State. 7—Classes of person authorised to take affidavits For the purposes of Schedule 1 clause 2(e) of the Act, the following are prescribed as classes of persons authorised to take an affidavit for the purposes of section 27A(3) of the Act: (a) any person empowered, authorised or permitted by or under any Act or rules of a court or tribunal to take affidavits; (b) a member or special member of the Australian Federal Police; (c) a person engaged under the Public Service Act 1999 of the Commonwealth at classification APS Level 6 or higher to whom investigative or enforcement functions or powers of the Inspector-General of Bankruptcy have been delegated under the Bankruptcy Act 1966 of the Commonwealth or to whom investigative or enforcement functions or powers of the Registrar have been delegated under the Personal Property Securities Act 2009 of the Commonwealth; (d) an authorised officer appointed under the Dangerous Substances Act 1979; (e) an authorised officer appointed under the Petroleum Products Regulation Act 1995; (f) an inspector appointed under the Employment Agents Registration Act 1993; (g) an inspector appointed under the Explosives Act 1936; (h) an inspector appointed under the Fair Work Act 1994; (i) an inspector appointed under the Long Service Leave Act 1987; (j) an inspector appointed under the Mines and Works Inspection Act 1920; (k) an inspector appointed under the Shop Trading Hours Act 1977. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of these regulations (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or . Principal regulations and variations New entries appear in bold. Year No Reference Commencement 2021 175 Gazette 25.11.2021 p4164 1.12.2021: r 2 2024 87 Gazette 22.8.2024 p2937 22.8.2024 except rr 3 to 5—1.1.2025: r 2 Provisions varied New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1