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The amendments resulted from the Northern Territory Law Reform Committee (NTLRC) report in 2008 which recommended that any oath or affirmation should be in simple terms immediately understandable by a witness and that in any procedure before a court (or some other tribunal within the meaning of court) a person about to give evidence shall first be asked “Do you promise to tell the truth to this Court?”
The amendments provide a comprehensive regime –
· replacing the current oath / affirmation with a promise to tell the truth in all situations requiring an oath – ie for giving evidence in court, before tribunals, for interpreters, affidavits, and oaths of office; and
· for who can administer an oath in what circumstances (although it does allow for other Acts to make different provisions). In particular the new oath / promise will be administered by the presiding judicial officer in court. For tribunals, the current situation for the majority of tribunals will become the norm whereby any sitting member of a tribunal can administer an oath.
NOTES ON CLAUSES
Part 1 Preliminary Matters
Clause 1. Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Oaths, Affidavits and Declarations Act 2010.
Clause 2. Commencement
This clause provides that the Act will commence on a day fixed by the Administrator by notice in the Gazette.
Clause 3. Definitions
This clause defines the terms ‘commissioner for oaths’,
‘consular official’, ‘defence force officer’ and ‘tribunal’.
It is noted that the definition of tribunal refers to individuals or bodies, other than courts, authorised by law or consent of parties to take evidence on oath or otherwise gather information on oath.
Clause 4. Application of Criminal Code
This clause sets out that the criminal responsibility provisions of Part IIAA of the Criminal Code are to apply to offences committed against this Act.
This means that Part IIAA of the Criminal Code (which states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof), rather than Part II of that Code, applies to the interpretation of sections of the Act that contain offences.
For offences, see clause 25 (altering an affidavit or declaration to become false or misleading).
Part 2 Oaths
Clause 5. Form and content of oath
This clause provides for the new simpler wording of the oath in that if a person takes an oath, under a law in force in the Territory, the form of the oath must be the words "I promise …." followed by the content of the oath which is set out in subclause (2) (and Schedule 1).
If the person to take the oath is listed in Schedule 1 (including a person giving evidence in court or before a tribunal, an interpreter in court or tribunal, or a person making an affidavit) and the content of the oath is not provided in the relevant Act, the content of the oath is as set out in Schedule 1 for that person.
However if the oath is required under an Act that provides for the content of the oath, it is as provided for by that Act. In any other case, the content of the oath is as determined by the person administering the oath to be appropriate in the circumstances.
Clause 6. Who may administer oath
This clause provides for who can administer an oath. Subclause (1) provides for oaths taken in the Territory and provides that:
· if the oath is taken by a person who is in court, the oath is to be administered by the presiding officer of the court (or if it is not reasonably practicable then by a person authorised by the presiding officer). It is intended to add to the solemnity and significance of taking the oath that it is administered by the person who is adjudicating the matter. If there is more than one judge sitting, the one presiding administers the oath. For example, for the Court of Appeal, section 58 of the Supreme Court Act provides that the Chief Justice, if he is sitting, or the most senior judge who is sitting, shall preside;
· if the oath is taken by a person who is before a tribunal, the oath is administered by any sitting member of the tribunal. The majority of Acts that provide for tribunals allow for any member of the tribunal to administer the oath, so clause 6(1)(b) is simply reflecting the current position for most tribunals. The same effect of adding to the solemnity and significance of taking the oath in the case of a tribunal is achieved if a sitting member of the tribunal administers the oath;
· in any other cases, a justice of the peace or commissioner for oaths can administer an oath; or
· if an Act authorises any other person to administer the oath, that person.
Subclause (2) provides for oaths taken outside the Territory, when an oath can be administered by:
· a person who has authority, under the law of the place, to administer an oath, take an affirmation or carry out a comparable process; or
· a consular official (defined in clause 3) who is performing official functions at the place; or
· a defence force officer (defined in clause 3) if the person taking the oath is a member of the Australian Defence Force; or
· any other person authorised by an Act to administer the oath.
Section 85 of the Criminal Code makes it an offence for any person, who does not have lawful authority, to assume to act as a person authorised to administer an oath etc (penalty is 3 years imprisonment).
Clause 7. How oath to be administered in court or tribunal
This clause provides for the manner as to how an oath is to be administered in a court or tribunal; namely that the person administering the oath asks the person: Do you promise to tell the truth to this court / tribunal / board etc. and the person gives an unconditional affirmative answer. If that person gives any other answer, or refuses to answer, he/she is taken to have refused to take the oath (subclause (3)).
As recommended by the NTLRC, this promise replaces any other form of oath or affirmation for giving evidence before a court, save for the discretion in clause 10 to devise a procedure considered more appropriate for the particular circumstances.
The NTLRC also recommended that the failure or refusal of a person to answer the question affirmatively should constitute prima facie contempt of court. It is noted that this offence already exists under other legislation (section 26 of the Justices Act and section 34 of the
Local Court Act). Whilst the Supreme Court Act does not provide for contempt, Order 75 of the Supreme Court Rules covers the procedure and provides that the Court may punish for contempt by committal to prison or fine, or both.
Clause 8. How oath to be administered in other cases
This clause provides for the manner as to how an oath is to be administered to a person who is not in court or before a tribunal, in which case the person taking the oath, in the presence of the person administering it, must say the words of the oath aloud, either by repeating them or by reading them.
It is noted that if the person taking the oath is unable to say the words aloud, the oath may be administered in a different way under clause 10.
Clause 9. Other Acts may provide for form and administration of oath
This clause provides that the clauses providing for form (including content) of an oath, who may administer an oath and how, do not affect any other legislation which expressly provides for such matters, except if the oath is required to be taken in a form that involves a reference to God, or otherwise has religious connotations, in which case the person has a choice, ie is entitled to take the oath in the form provided by clause 5(1) instead. Sub-clause (2) is a catch all clause. Although Territory legislation will be consequentially amended to provide for a promise instead of a religious oath, there may be other legislation which still provides for a religious oath, eg uniform national schemes.
Subclause (3) provides that if the other Act provides for a different form of oath but does not provide how it is to be administered, it is to be administered as nearly as practicable in a way provided by clauses 7 or 8 (as appropriate).
Clause 10. Alternative form and administration of oath
This clause provides that despite the clauses providing for form (including content) of an oath and how it should be administered, the person taking the oath can take it in any form or manner provided the person administering it is satisfied they understand the consequences of taking an oath and are taking it honestly and in good faith intending to be bound by it.
This clause has no application regarding who may administer an oath or where another Act expressly provides for the form and manner.
The NTLRC stated that in rare cases a court could use its discretion to determine if there was a genuine objection to the words, and if so, formulate a different procedure. There may also be cases where the person cannot speak or a religious oath is appropriate.
Clause 11. Minor non-compliance does not affect validity
This clause provides that inadvertent non-compliance with formal requirements (defined as form, content or the way in which an oath is administered) do not affect the validity of the oath.
Part 3 Affidavits
Clause 12. How affidavit to be made
This clause provides for how an affidavit is to be made. This is a new provision as the current Oaths Act does not include any details about how affidavits are actually made. These details have been loosely based on the WA Oaths Affidavits and Statutory Declarations Act 2005 and existing NT court rules.
Subclause (2) provides that an affidavit must set out the full name of the person making it.
Subclause (3) provides that an affidavit must conclude with a statement that the affidavit is made in the presence of an authorised witness
(see clause 13) and that sets out the place where, and the date when, the affidavit is made.
Subclause (4) provides that an attachment to an affidavit must include on its front page a statement identifying it as an attachment.
Subclause (5) provides that the person making the affidavit must sign the affidavit immediately after the statement in (3), sign each other page and sign or initial any alteration and, in the presence of an authorised witness, must orally say the matters specified in (d) on oath, ie I promise that I am the person named as the maker of the affidavit, that the contents of the affidavit are true, that the signature is mine and, if necessary, that any attachment to the affidavit is the attachment referred to in it. The use of exhibits is left to the relevant court rules (see Supreme Court Rule 43.06 and Local Court Rule 22.08).
It is noted that the signing of the affidavit in accordance with clause 12(5)(a)-(c) does not need to be done by the maker of the affidavit in the presence of an authorised witness. However, the taking of the oath is required to be done in the presence of an authorised witness.
After the person making the affidavit has made the oral statement required by 12(5)(d), the authorised witness must sign and write his / her full name, qualification as an authorised witness and address or contact telephone number, under or near the statement required by 12(3), and sign each other page of the affidavit, sign or initial any alteration made to the affidavit that has been signed or initialled by the maker and sign or initial any attachment near the statement under (4).
Subclause (7) defines an authorised witness as a person authorised under clause 13 to witness an affidavit, eg justice of the peace or commissioner for oaths.
With respect to offences, whilst the current Oaths Act creates an offence of -
· making a false statement in an affidavit (section 16(1)), such an offence appears to be covered by section 118 of the Criminal Code; and
· taking an affidavit when not authorised to do so (section 16(2)), such an offence appears to be covered by section 85(b) of the
Criminal Code.
It was therefore seen as unnecessary to include offence provisions equivalent to section 16 of the current Act in the new Act.
Clause 13. Who may witness affidavit
This clause provides for who may witness an affidavit.
Subclause (1) provides that affidavits made in the Territory must be witnessed by a justice of the peace, a commissioner for oaths or any other person authorised by an Act to witness the affidavit.
Subclause (2) provides that affidavits made outside the Territory must be witnessed by:
· a person who has authority, under the law of the place, to administer an oath, take an affirmation or carry out a comparable process or to witness an affidavit or comparable document; or
· a consular official (defined in clause 3) who is performing official functions at the place; or
· a defence force officer (defined in clause 3) if the person taking the oath is a member of the Australian Defence Force; or
· any other person authorised by an Act to administer the oath.
Clause 14. Other Acts may provide for how affidavit to be made
This clause provides that the clauses providing for how an affidavit is to be made and who may witness it, do not affect any other legislation which expressly provides for such matters.
For example, Order 43 of the Supreme Court Rules and Part 22 of the
Local Court Rules contain detailed provisions about the making of affidavits for use in those courts.
Part 4 Statutory and unattested declarations
Clause 15. When declaration may be made
This clause provides that a person may make a statutory declaration or unattested declaration about any matter at any time and does not affect any other law in force in the NT.
This is to allow a person to make a declaration about any matter whenever they choose to do so and is not intended to affect the use to which the declaration may be put or the effectiveness of a declaration for any particular purpose.
Clause 16. Form of declaration
This clause provides that if a person makes a declaration (statutory or unattested), the form of the declaration must be the words "I solemnly and sincerely declare …." followed by the content of the declaration.
Sub-clause (2) requires that a statutory declaration must be either in writing (refer clause 17) or as a recording (refer clause 18) and sub-clause (3) requires that an unattested declaration must be in writing (refer clause 19).
The NTLRC, whilst it did not consider that the terms of reference covered statutory declarations, stated that it did not see any necessity to change the terms of the statutory declaration where the deponent “solemnly and sincerely declares”.
Clause 17. Written statutory declaration
This clause provides that a written statutory declaration must:
· set out the full name of the person making it;
· conclude with a statement that the declaration is true, that the person making the declaration knows that it is an offence to make a statutory declaration that is false in any material particular and that sets out the place where, and the date when, the declaration is made;
· have any attachment to it identified on the front page of the attachment;
· be signed by the person making the declaration, in the presence of an adult witness (“adult” being defined in section 17 of the Interpretation Act as an individual who is at least 18 years of age) immediately after the statement required by (2); and
· be signed by the witness under or near the maker's signature and the witness must then write his or her full name and address or telephone number. The word “write” is intended to cover ‘type’ and ‘stamp’ as expressed in the current section 23C(2). Any attachment must also be signed or initialled under or near the statement under (3).
This clause sets out the minimum requirements for a written statutory declaration. Forms are no longer prescribed as the use of the prescribed form in the current section 23C(1) and Schedule 8 of the Oaths Act was only ever optional ie ‘may’ be in the form.
Whilst the current Oaths Act creates an offence of making a false statement in a statutory declaration (section 23F), such an offence appears to be covered by section 119 of the Criminal Code (liable to imprisonment for three years) and possibly section 118. It was therefore seen as unnecessary to include an offence provision equivalent to section 23F in the new Act.
See clause 25 for offences of altering a written statutory declaration.
Clause 18. Recorded statutory declaration
This clause provides that a statutory declaration may be made as an audio or audio-visual recording of any kind. This clause uses more generic terminology than the current section 23CA to cover newer technology such as DVD/CD, electronic files etc.
The person making the declaration must make a statement, at the end of the recording, that the declaration is true, that the person knows that it is an offence to make a statutory declaration that is false in any material particular and setting out the place where, and the date when, this statement is recorded. This statement must be recorded in the presence of an adult witness (ie who is at least 18 years of age) but it is noted that the witness does not have to be present for the making of the rest of the declaration recording. The witness must then make a statement, at the end of the recording, stating his or her full name and address or telephone number and that he or she witnessed the recording of the concluding statement required by (2).
Whilst the current Oaths Act creates an offence of making a false statement in a statutory declaration (section 23F), such an offence appears to be covered by section 119 of the Criminal Code (liable to imprisonment for three years). It was therefore seen as unnecessary to include an offence provision equivalent to section 23F in the new Act.
See clause 25 for offences of altering a recorded statutory declaration.
Clause 19. Unattested declarations
This clause provides that an unattested declaration must include the full name of the maker and conclude with a statement that the declaration is true, that the person making the declaration knows that it is an offence to make a declaration that is false in any material particular and setting out the place where, and the date when, the declaration is made. The person making the declaration must sign the declaration but it is not witnessed.
This clause sets out the minimum requirements for an unattested declaration. The form is no longer prescribed as the use of the prescribed form in the current section 23D(2) and Schedule 10 of the Oaths Act was only ever optional, ie ‘may’ be in the form.
Whilst the current Oaths Act creates an offence of making a false statement in an unattested declaration (section 23F) and such an offence does not appear to be covered by the Criminal Code, it is more appropriate to include the offence in the Code – see proposed amendment to section 119 of the Criminal Code in the Oaths Affidavits and Declarations (Consequential Amendments) Bill 2010.
See clause 25 for offences of altering an unattested declaration.
Clause 20. Other Acts may provide for how declaration to be made
This clause provides that the clauses providing for form (including content) of a declaration (written statutory, recorded statutory or unattested declarations) and how it should be made or witnessed, do not affect any other legislation which expressly provides for such matters.
Part 5 Commissioners for oaths
Clause 21. Commissioners for oaths
This clause lists the persons who are commissioners for oaths by reason of their office, being:
(a) a member of the Legislative Assembly;
(b) a member of the Commonwealth Senate who represents the Territory;
(c) a member of the Commonwealth House of Representatives who represents an electorate in the Territory;
(d) a legal practitioner (it is noted that a legal practitioner is defined in section 17 of the Interpretation Act to mean an Australian Legal Practitioner as defined in section 6(a) of the Legal Profession Act ie a person who is admitted to the legal profession under the
Legal Profession Act or a corresponding law who holds a current local practising certificate or a current interstate practising certificate); or
(e) a police officer (it is noted police officers are at least 18 years of age).
This clause also provides for a person to be appointed to be a commissioner for oaths by the Minister under clause (2) for a period specified in the appointment and not exceeding five years.
It is noted that under section 44 of the Interpretation Act a power to appoint includes a power to remove.
Clause 22. Powers of commissioner for oaths
This clause provides for the powers of a commissioner for oaths to administer an oath, witness an affidavit or attest the execution of any other document. When attesting the execution of a document, a commissioner for oaths must sign the document and write his or her full name, qualification as a commissioner for oaths and address or telephone number.
“Document” is defined broadly in section 17 of the Interpretation Act.
Part 6 Miscellaneous
Clause 23. Counter-signing other document or notarial act done out of Territory
Sub-clause (1) provides that if a person makes a relevant document (defined to mean a document that is required in the NT to be counter-signed) at a place outside the Territory, the document may be counter-signed (defined to mean witnessed, verified, acknowledged or otherwise signed in a capacity other than as maker) by any person who could, under clause 13(2), witness the document if it were being made as an affidavit.
Sub-clause (2) provides that if it is necessary for any purpose in the Territory for a notarial act (defined to mean, for a place outside the Territory, anything that a notary public may do at the place under any law, custom or otherwise) to be done at a place outside the Territory, the notarial act may be done by any person who could, under
clause 13(2), witness the making of an affidavit at the place by the person for whom the notarial act is to be done.
Clause 24. Evidentiary matters – facilitation of proof
This clause provides for judicial notice by raising a rebuttable presumption that:
· an affidavit that purports have been witnessed by a person authorised by clause 13 and in the manner set out in clause 12 was so witnessed;
· a document that purports to have been attested by a commissioner for oaths was so attested; and
· a document, as defined in clause 23, that purports to have been counter-signed in accordance with that clause was so counter-signed.
Clause 25. Altering an affidavit or declaration to become false or misleading
This clause provides for offences of altering an affidavit, statutory declaration (a written statutory declaration or recorded statutory declaration) or unattested declaration by doing anything to it that results in it becoming false or misleading.
If it is intended to make the document false or misleading, the maximum penalty is 400 penalty units (currently $53,200) or imprisonment for 4 years; if it is done recklessly, the maximum penalty is 200 penalty units (currently $26,600) or imprisonment for 2 years.
It is noted section 38DA of the Interpretation Act provides that if the maximum penalty is stated as imprisonment, a person may be sentenced to imprisonment, a fine or both.
Subclause (3) provides that if a person is charged with an offence under (1) but the trier of fact is satisfied the person committed an offence against (2) (ie reckless) and not (1), the person may be found guilty of the offence under (2) and liable to the punishment accordingly.
Clause 26. Competence of witness unable to understand nature of oath
This clause provides for a witness required to give evidence on oath before a court or tribunal to give evidence without taking an oath, ie to give unsworn evidence, if the court or tribunal is satisfied both that the witness is incapable of understanding the nature of an oath and that the witness-
(i) if at least 14 years of age – understands that he or she may be punished if he or she gives evidence that is false; or
(ii) if under 14 years of age – is capable of giving an intelligible account of his or her experience.
Clause 27. Regulations
This clause provides for the Administrator to make regulations under the new Act.
Part 7 Repeals and transitional matters
Division 1 Repeals
Clause 28. Acts repealed
This clause provides that the Acts listed in Schedule 2 are repealed.
Division 2 Transitional matters for Oaths, Affidavits and Declarations Act 2010
Clause 29. Definitions
This clause provides for the definition of “commencement” (being when the Acts are repealed under clause 28) and “repealed Act” (being the current Oaths Act).
Clause 30. Commissioners for oaths
This clause provides for the continuation of appointment of the current Commissioners for Oaths by providing that a person who was a Commissioner for Oaths, under section 17(2) of the current Oaths Act immediately before repeal, continues to be a Commissioner for Oaths until the end of the person's term of appointment as if the person had been appointed under clause 21(2) of this Bill.
Clause 31. Oaths, affidavits and declarations taken or made before commencement
This clause provides for the continuation of all oaths, affidavits or declarations sworn or made before the commencement of the Bill by providing that such oaths, affidavits or declarations are as valid and effective after the commencement as they would have been had the new Oaths, Affidavits and Declarations Act 2010 and the Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 not been enacted.
Clause 32. Declarations using forms under repealed Act
This clause provides for the recognition of existing declaration forms for 2 years, in that:
· a statutory declaration made in the form in Schedule 8 to the Oaths Act is taken to comply with clauses 16(1) and 17(2);
· an annexure to a statutory declaration to which is attached an annexure clause in the form in Schedule 9 to the Oaths Act is taken to comply with clause 17(3); and
· an unattested declaration made in the form in Schedule 10 to the Oaths Act is taken to comply with clauses 16(1) and 19(2).
Schedule 1 Content of Oath
This Schedule provides for the content of the oath to be made in specified situations, as provided by clause 5(2)(b) and if not provided by other legislation, including giving evidence in court, before tribunals, for interpreters, affidavits, and oaths of office.
Schedule 2 Repealed Acts
This Schedule lists the Acts to be repealed.