Oaths and Affirmations (NSW)

In New South Wales, when a person gives evidence either orally or in writing, they are required to take an oath or make an affirmation that they will tell the truth. Oaths and affirmations are governed by the Oaths Act 1900 and play a crucial role in maintaining the integrity of the NSW legal system. This page deals with oaths and affirmations in New South Wales, including their legal requirements, procedures, and consequences for breach.

Understanding the distinction between oaths and affirmations is essential for anyone participating in legal proceedings, whether as a witness, party to litigation, or in the preparation of sworn documents. These solemn declarations form the foundation of truthful testimony in NSW courts and legal processes.

Oaths

Religious Declarations and Their Significance

An oath is a religious declaration that calls on God to bear witness to the truthfulness of the evidence being given. A religious oath can be taken in keeping with a number of religions, with different oaths being used by members of different religions. The oath represents a sacred promise made before a divine witness, carrying both legal and spiritual weight.

Biblical and Christian Oaths

Under section 11A of the Oaths Act 1900, an oath on the bible or Old Testament should be taken while the witness holds the scripture in their hand if they are capable of doing so. The witness says, "I swear by Almighty God as I shall answer to God at the Great Day of Judgment that I will speak the truth, the whole truth, and nothing but the truth."

This traditional form of oath has been used in NSW courts for over a century and remains the most common religious oath administered. The physical act of holding the holy book while reciting the oath emphasizes the solemnity of the commitment being made.

Multi-Faith Accommodations

A Muslim, Buddhist or Chinese oath will also be accepted. The NSW legal system recognizes the diverse religious backgrounds of its population and accommodates various faith traditions. Islamic oaths may be sworn on the Quran, while Buddhist and other religious traditions have their own prescribed forms that are equally valid in law.

Affirmations

Non-Religious Alternatives

An affirmation is the non-religious equivalent of an oath. Under section 12 of the Oaths Act 1900, any person who objects to taking an oath may instead make a solemn affirmation. This involves stating that the witness 'solemnly, sincerely and truly declares and affirms' rather than swearing before God.

Affirmations serve the same legal purpose as oaths and carry identical legal consequences. They provide an inclusive option for individuals who may be atheist, agnostic, or simply prefer not to invoke religious elements in their legal commitments.

Legal Equivalence

Both an oath and an affirmation involve making a solemn promise to tell the truth. A person who knowingly gives false testimony either under oath or affirmation may be found guilty of an offence. The choice between oath and affirmation is entirely personal and does not affect the legal weight or credibility of the testimony provided.

When is an oath or affirmation made?

Written Documents and Declarations

A person signing a statutory declaration or affidavit must take an oath or make an affirmation. This must be administered by a qualified person. A statutory declaration may be witnessed by a range of professionals including doctors, pharmacists and lawyers. In New South Wales, an affidavit must be witnessed by a legal practitioner or by a Justice of the Peace.

Court Proceedings

An oath or affirmation must also be taken when a person is:

• being sworn in as a witness in a criminal or civil court proceeding
• being sworn in as a juror in a criminal or civil trial
• being sworn in as an interpreter in a court proceeding

These requirements ensure that all participants in NSW court proceedings understand their obligation to provide truthful information and face serious consequences if they fail to do so.

Child witnesses

Age-Appropriate Procedures

When a young child is called to give evidence in court, they may be asked to make a promise to tell the truth to the court rather than taking a formal oath or affirmation. This promise can be given in any form that is appropriate to the age and level of maturity of the child.

NSW courts recognize that traditional oath and affirmation language may be too complex for young witnesses to understand fully. The simplified promise format ensures children comprehend their duty to tell the truth while maintaining the legal integrity of their testimony.

Administration and Witnessing Requirements

Qualified Administrators

Under the Oaths Act 1900, only certain qualified individuals can administer oaths and affirmations. These include judicial officers, registrars, justices of the peace, commissioners for declarations, and legal practitioners. The person administering the oath must ensure the witness understands the nature and consequences of the commitment they are making.

Proper Procedures

The administration of oaths and affirmations must follow prescribed procedures to ensure validity. This includes using the correct wording, ensuring the witness can hear and understand the oath, and completing any required documentation. Failure to follow proper procedures may invalidate the sworn statement or testimony.

Interstate and Federal Recognition

Cross-Jurisdictional Validity

Oaths and affirmations taken in NSW are generally recognized across Australian jurisdictions under the principle of interstate recognition. However, specific requirements may vary between states and territories. The Evidence Act 1995 (NSW) provides framework for the recognition of interstate sworn documents and testimony.

Commonwealth Proceedings

In federal court proceedings conducted in NSW, both state and Commonwealth oath requirements may apply. The Oaths Act 1900 (NSW) works alongside federal legislation to ensure appropriate procedures are followed in all circumstances.

Perjury and other offences

Statutory Declaration Offences

Under section 25 of the Oaths Act 1900, a person who knowingly makes a false statutory declaration commits an offence punishable by five years imprisonment.

Under section 25A of the Oaths Act 1900, a person who wilfully and corruptly makes a false statutory declaration and derives or attempts to derive a material benefit from this commits an offence punishable by seven years imprisonment.

Perjury Charges

Under section 33 of the Oaths Act 1900, a person who wilfully and knowingly makes a false statement in an affidavit is guilty of the offence of perjury.

Under section 327 of the Crimes Act 1900, a person who makes a false statement under oath or affirmation is guilty of perjury, which is punishable by imprisonment for 10 years.