Opinion Number. 1109



Key Legislation

NAVIGATION ACT 1912, s. 413 (I) (e)

The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded me the following minute for advice:

Section 413 of the Navigation Act provides that the Minister, or any person authorised by him, may, among other things, administer oaths.

In January of last year when it was contemplated bringing coasting-trade provisions of the Act into operation on 2.3.20, written authorisation to exercise that and other powers in connection with and for the purpose of the Navigation Act were issued to the Collectors in the several States. When the work now being carried out by the Collectors is transferred to the Deputy Directors, the latter will, it is presumed, be similarly authorised.

I am in doubt as to what the powers and functions of a person authorised to administer oaths under section 413 would be. I take it, however, that the power would be exercised only in connection with matters arising out of the administration of the Navigation Act. I do not think that such person would be entitled to act as a Commissioner for Oaths, and to administer oaths to persons making affidavits in connection with any other matters.

I suggest that as the matter is of some importance, the file be referred through the Comptroller-General to the Attorney-General's Department with a request for advice as to the powers and functions of a person authorised by the Minister under section 413 of the Navigation Act to administer oaths. It would also be very useful if that Department would kindly indicate the formalities to be observed in the administration of oaths, and the most suitable form of words to be used for that purpose.

The powers which the Minister may confer under section 413 include that of administering oaths. That power can only be exercised in relation to matters arising under the Act, that is in matters in connection with which it is necessary to elicit information or to require statements made to be upon oath. The word 'oath' includes, in the case of persons allowed by law to affirm declare or promise instead of swearing, affirmation, declaration and promise.

The forms of oath and affirmation and the circumstances under which a person may be allowed to affirm in lieu of swearing are to be found in State law.

Victoria: Evidence Act 1915, sections 93-97. The person taking the oath holds the Bible or the New or Old Testament in his uplifted hand and repeats after the officer administering the oath T swear by Almighty God that' (here follow such words as are suited to the circumstances in connection with which the oath is taken).

Any person objecting to be sworn and stating as a reason that he has no religious belief or that the taking of an oath is contrary to his religious belief may be allowed to make a solemn affirmation in the following form: T, A.B., do solemnly, sincerely, and truly declare and affirm' etc.

The form used in New South Wales requires the person taking the oath to hold a copy of the Bible or Testament in his hand and indicate his assent to the oath by uttering the words 'So help me God'. An oath shall be binding for all purposes for which it is administered and may be taken in any form and in any manner which the person taking the same declares to be binding.

The form of oath in Queensland requires the use of the words 'So help me God' following the words required to be sworn in each case.

In South Australia the person taking the oath is required to stand up and hold a copy of the Bible or New or Old Testament in his hand and, after the oath has been administered by the officer, to say T swear'.

An affirmation may be taken in the form given in the case of Victoria.

In Western Australia the person taking the oath is required to hold up his hand and repeat 'I swear by Almighty God, that I will speak the truth, the whole truth, and nothing but the truth'.

Affirmations may be taken.

In Tasmania the procedure is similar to that in South Australia.

[Vol.17, p. 448]