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Authorised witnesses

Changes to the Oaths Act 1936

The Oaths (Miscellaneous) Amendment Act 2021 (the Amendment Act) amends the Oaths Act 1936 to:

  • provide for the permanent expansion of the classes of people permitted to witness statutory declarations, following the temporary extension by the COVID-19 Emergency Response (Section 16) Regulations 2020 (Section 16 Regulations) and including now also registered conveyancers;
  • remove the requirement for police officers to be proclaimed under the Oaths Act before being authorised to witness affidavits or statutory declarations;
  • consolidate provisions relating to the taking of affidavits currently in the Evidence (Affidavits) Act 1928 into the Oaths Act;
  • provide, by regulation, for requirements for statutory declaration and affidavit documents; and
  • provide, in Codes of Practice, for procedures to be followed by declarants/ deponents and witnesses in the making of statutory declarations and affidavits.  

The Amendment Act commenced on 1 December 2021 to ensure a smooth transition once the Section 16 Regulations cease on expiry of section 16 of the COVID-19 Emergency Response Act 2020 on 1 December.

The Oaths Regulations 2021 and Codes of Practice to commenced on 1 December 2021 maintain the status quo in terms of requirements and procedures for statutory declarations and affidavits. This includes:

  • permanently expanding the class of persons permitted to take statutory declarations in line with the existing provision in the Section 16 Regulations; and
  • continuing the provision for affidavits to be sworn and witnessed remotely via audio visual link.

It is intended to consult later on long-term changes to the requirements for statutory declarations and affidavits contained in the Oaths Regulations and Codes of Practice under the Oaths Act 1936 (as amended), including for greater consistency with other Australian jurisdictions.

Legislation and instruments
Authorised affidavit witnesses 
List of authorised affidavit witnesses under Oaths Act 1936 (SA) from 1 December 2021:

•    a Commissioner for taking affidavits in the Supreme Court

•    a justice of the peace

•    a police officer, other than a police officer who is a probationary constable

•    persons admitted and enrolled as a notary public of the Supreme Court

•    any person empowered, authorised or permitted by or under any Act or rules of a court or tribunal to take affidavits.

 
Authorised statutory declaration witnesses  
List of authorised statutory declaration witnesses under Oaths Act 1936 (SA) from 1 December 2021:

•    a Commissioner for taking affidavits in the Supreme Court

•    a person who is registered as a conveyancer under the Conveyancers Act 1994

•    a justice of the peace

•    a police officer, other than a police officer who is a probationary constable

•    persons admitted and enrolled as a notary public of the Supreme Court

•    an agent of the Australian Postal Corporation in charge of an office supplying postal services to the public

•    an Australian Consular Officer or an Australian Diplomatic Officer within the meaning of the Consular Fees Act 1955 of the Commonwealth

•    a bailiff

•    a bank officer who has 5 or more continuous years of service

•    a building society officer who has 5 or more years of continuous service

•    a chief executive officer of a Commonwealth court

•    a clerk of a court

•    a credit union officer who has 5 or more years of continuous service

•    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

•    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

•    a fellow of the National Tax and Accountants' Association

•    a registered health practitioner

•    a finance company officer who has 5 or more years of continuous service

•    a marriage celebrant registered under Part IV Division 1 Subdivision C of the Marriage Act 1961 of the Commonwealth

•    a member of the Governance Institute of Australia

•    a member of Engineers Australia, other than at the student grade

•    a member of the Association of Taxation and Management Accountants 

•    a member of the Australasian Institute of Mining and Metallurgy

•    a member of the Australian Defence Force who is— 

(i) an officer; or 

(ii) a non-commissioned officer within the meaning of the Defence 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 Defence Force Discipline Act of the Commonwealth

•    a member of the Institute of Chartered Accountants in Australia, CPA Australia (Certified Public Accountants) or the Institute of Public Accountants

•    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

•    a minister of religion registered under Part IV Division 1 Subdivision A of the Marriage Act 1961 of the Commonwealth

•    a patent attorney or a trade marks attorney

•    a permanent employee of the Australian Postal Corporation who has 5 or more years of continuous service who are employed in an office supplying postal services to the public

•    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 are not specified in another item in this list

•    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

•    a sheriff

•    a sheriff's officer

•    a teacher employed on a full-time basis at a school or tertiary education institution 

•    a veterinary surgeon.

 
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