Oaths and Affirmations (Vic)

In Victoria, the laws governing oaths and affirmations are set out in the Oaths and Affirmations Act 2018. This comprehensive legislation replaced the previous Oaths and Affirmations Act 2006 and establishes the legal framework for how oaths and affirmations must be administered and taken across Victoria. This page deals with how oath and affirmations are taken in Victoria and provides essential information for individuals who need to swear or affirm documents or give sworn testimony.

An oath or affirmation is required to be made in a range of situations including when a person is giving oral evidence, when a person is signing a statutory declaration or an affidavit, when a person is being sworn into a public office, or when a person is certifying a copy of a document. These legal declarations serve as a formal guarantee that the information provided is truthful and accurate to the best of the deponent's knowledge and belief.

Who may administer an oath or affirmation?

When a person takes an oath or makes an affirmation, they must do so in the presence of a suitably qualified person. In Victoria, this may be a legal practitioner, a Justice of the Peace, judicial officer, public notary, court registrar or police officer.

Authorised Officers Under the Act

The Oaths and Affirmations Act 2018 provides a comprehensive list of authorised officers who may witness oaths and affirmations. These include members of the legal profession holding a current practising certificate, commissioners for taking affidavits, bailiffs, and certain government officials. The Act also recognises interstate and commonwealth officials in specific circumstances, ensuring that documents sworn in other jurisdictions can be recognised in Victoria.

Requirements for Witnessing

The authorised officer must be physically present when the oath or affirmation is taken and must verify the identity of the deponent before proceeding. They are responsible for ensuring that the deponent understands the nature and consequences of making the declaration and that the oath or affirmation is administered correctly according to the prescribed forms.

Oaths

An oath is a religious declaration where the deponent swears before God that they will tell the truth to the best of their ability. An oath may be made in accordance with the religion of the deponent's choice.

When a deponent makes an oath, they say, 'I swear by Almighty God that…'

An oath should generally be spoken but it is not necessary to use a copy of a scripture. If the deponent is unable to speak aloud, the oath may be made in a modified form.

Religious Considerations

Victoria's legislation recognises the diverse religious backgrounds of its population. Deponents may swear according to their religious beliefs, whether Christian, Islamic, Jewish, Hindu, or any other faith tradition. The Act accommodates various religious practices and allows for the use of religious texts or symbols if the deponent requests them, though they are not mandatory for the validity of the oath.

Modified Forms of Oaths

For individuals with disabilities or special circumstances, the Act provides flexibility in how oaths may be administered. This includes provisions for sign language interpretation, written acknowledgments where speech is not possible, and other reasonable accommodations to ensure all Victorians can participate fully in legal proceedings.

Affirmations

An affirmation is the non-religious equivalent of an oath, where a deponent makes a solemn declaration that they will tell the truth rather than swearing to do so before God.

When a deponent makes an affirmation, they say, 'I solemnly and sincerely declare and affirm that…'

A person may elect to take an affirmation rather than an oath because they are not religious or for any other reason. An affirmation has the same effect as an oath.

Legal Equivalence

Under Victorian law, affirmations carry exactly the same legal weight and consequences as oaths. Courts, government agencies, and other institutions must treat affirmed statements with identical gravity to sworn statements. This equality ensures that non-religious individuals are not disadvantaged in legal proceedings or administrative processes.

Child witnesses

If a child or a person with an intellectual disability is called as a witness in a court proceeding, or makes a statutory declaration or affidavit, they may make an informal promise to tell the truth rather than taking a formal oath or affirmation.

Age and Capacity Considerations

The Act recognises that children and individuals with cognitive impairments may not fully understand the concept of oaths or affirmations. Courts have discretion to determine appropriate alternative promises that are meaningful to the individual while still emphasising the importance of truthfulness. This approach balances legal requirements with practical considerations of comprehension and development.

Electronic and Remote Witnessing

Technology in Oath Administration

Recent amendments to Victorian legislation have recognised the increasing role of technology in legal processes. Under certain circumstances, oaths and affirmations may be witnessed electronically or via video conference, particularly where physical presence is impractical or impossible. However, strict security and identity verification requirements must be met to ensure the integrity of the process.

COVID-19 and Emergency Provisions

The pandemic highlighted the need for flexible witnessing arrangements. Victoria introduced temporary provisions allowing remote witnessing of certain documents, with specific safeguards including audio-visual recording requirements and enhanced identity verification procedures. These provisions have informed ongoing discussions about permanently expanding electronic witnessing options.

Statutory Declarations and Affidavits

Common Uses in Legal Practice

Statutory declarations are frequently required for administrative purposes including insurance claims, lost document replacements, and various government applications. Affidavits, on the other hand, are primarily used in court proceedings to present evidence in written form. Both documents must be properly sworn or affirmed to be legally valid.

Proper Completion Requirements

The Act specifies exact requirements for completing these documents, including proper identification of all parties, clear statements of fact, appropriate witnessing procedures, and correct dating and signing. Failure to follow these requirements can invalidate the document and potentially expose parties to legal consequences.

Offences

Under section 37 of the Act, a person who knowingly makes a false or misleading statement in a statutory declaration is guilty of an offence punishable by a fine of 10 penalty units.

Under section 50 of the Act, a person who intentionally makes a false statement under oath or affirmation is guilty of an offence punishable by imprisonment for 15 years.

Under section 47 of the Act, a person who presents a document for certification knowing it is not a true copy of the original commits an offence punishable by a fine of 600 penalty units or imprisonment for five years, or both.

Perjury and False Declarations

These offences reflect the serious nature of sworn statements in Victoria's legal system. The severe penalties, particularly the 15-year maximum imprisonment for perjury, demonstrate the importance placed on truthfulness in legal proceedings. Prosecution of these offences requires proof of intent to deceive, not merely negligent inaccuracy.

Frequently Asked Questions

Can I choose between taking an oath or making an affirmation?

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