The Secretary, Department of Home and Territories, has forwarded, for advice, a memorandum covering a letter from Messrs McCay & Thwaites, pointing out that there is not adequate provision in the Northern Territory for affirmations to be made in lieu of oaths in cases of-

1. persons required to take oaths of office such as magistrates, jurors, interpreters etc., and
2. persons required to take oaths on being sworn to affidavits.

The memorandum of the Secretary to the Department is as follows:

Will you be so good as to advise regarding the annexed letter from Messrs McCay & Thwaites. It would appear from an examination of Act No. 671 that the first class of cases referred to is fully met by the phrase 'official oath' in section 2.

2. As regards the second class the Department is not quite clear as to the meaning of the phrase 'judicial oath' in section 2 and is unable to say whether or not it might be construed to mean an oath to be used in judicial or legal proceedings.
3. A perusal of section 3 of the Act indicates that affidavits were in contemplation when the law was passed.
4. Will you advise whether the classes of cases mentioned in the letter are covered by the existing law.

Section 2 of the Affirmations Act 1896 of South Australia provides that all persons may make an affirmation in lieu of taking the oath required by the Constitution Act or any oath of allegiance, official oath, oath of fidelity, or judicial oath.

The oath required by the Constitution Act is the oath of allegiance to be taken by Members of Parliament.

The Promissory Oaths Act 1869 provides that the oath of allegiance and the official oath shall be taken by the Governor and each member of the Executive Council; the oath of allegiance and the judicial oath by the Chief Justice and Judges of the Supreme Court, the Commissioner of Insolvency, Special Magistrates and Justices of the Peace, and the oath of fidelity by members of the Executive Council.

The Affirmations Act 1896 therefore only partially covers the class of cases referred to in paragraph (a) above.

Section 3 of the Affirmations Act 1896 does not, I think, provide expressly or impliedly that affidavits may be made on affirmation, but merely provides for the form of affirmations in writing authorised by the Act.

The Criminal Procedure Amendment Act 1866-7 (No. 13), section 9, provides as follows:

9. If any person called as a witness in any Court in the said Province, or required or desiring to make an affidavit or deposition in the course of any proceeding in any such Court, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the Court, or Judge, or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, that is to say-

I, A.B., do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare, &c. Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form.

An affirmation in the form prescribed by that section can presumably only be made by a person who has a religious belief and therefore not by an atheist, who, apparently, has no religious belief.

I am, therefore, of opinion that the classes of persons mentioned in the letter of Messrs McCay & Thwaites are not adequately covered by the existing law and would suggest that the question of the amendment of the present law to provide for the cases not covered be considered.

[Vol. 17, p.88]