Affidavits

You can fill out most of the affidavit form, but don’t sign it yet. This must be done when you are in the presence of the authorised affidavit taker as they need to witness you signing the form. 

Find an authorised affidavit taker

There are many people authorised to take an affidavit, such as a Justice of the Peace, an Australian legal practitioner, or a court registrar. Please expand this section to see a full list.

How to make an affidavit

Signing your affidavit

When you are in the physical presence of the affidavit taker or are connected by audio visual link (such as Zoom or Skype), you must:

• sign or initial any alteration to the affidavit
• sign each page
• sign the affidavit.

This can be completed using a handwritten signature or an electronic signature.

The authorised affidavit taker must then:

• sign or initial any alteration
• sign each page of the affidavit.

The authorised affidavit taker can use a handwritten signature or an electronic signature.

If the affidavit is being executed online by audio visual link, the affidavit taker may use a scanned or electronic copy of the affidavit to complete these requirements.

Attaching documents

If the affidavit refers to another document, a certificate identifying the document as an exhibit to the affidavit needs to be attached. The certificate should meet any requirements imposed by the relevant court or tribunal.

You must sign this certificate when you are in the physical presence of the affidavit taker or connected by audio visual link. You can sign this certificate using a handwritten signature or an electronic signature.

The authorised affidavit taker must then:

• sign and date the certificate
• write, type or stamp their name, personal or professional address and authority to take an affidavit.

The authorised affidavit taker can use a handwritten signature or an electronic signature.

If the affidavit is being executed by audio visual link, the affidavit taker may use a scanned or electronic copy of the affidavit to complete these requirements.

Take an oath or make an affirmation

You will then need to take an oath or make an affirmation to confirm the affidavit is true. This oath or affirmation can be made in the physical presence of the affidavit taker or by an audio visual link connection (such as Zoom or Skype).

An oath is swearing the truth on a religious or spiritual belief. It can be made using a religious text, such as a bible, tanach or koran, but does not require one. You do not have to have a religious belief to swear an oath.

An oath may be taken using the following, or similar words:

An affirmation is a non-religious swearing of the truth. An affirmation may be taken using the following, or similar words:

Children may use similar, simpler words including:

Complete the jurat

After hearing the oath or affirmation, the authorised affidavit taker must complete the jurat. The jurat is the section of the affidavit form that includes the place and date the affidavit is sworn, and the authorised affidavit taker’s:

• handwritten signature or electronic signature
• name and personal or professional address
• authority to take the affidavit.

If the affidavit was taken and signed online by audio visual link and the affidavit taker has used a scanned or electronic copy of the affidavit, then the authorised affidavit taker must also state that:

• the affidavit was signed and sworn or affirmed by the deponent by audio visual link
• that they used a scanned or electronic copy of the affidavit and not the original in completing the jurat requirements.

The affidavit is now complete.

Using an interpreter

A person may use an interpreter when making an affidavit.

Affidavits are usually prepared on the basis that they might be used in a court or a tribunal. If the affidavit is made in a language other than English, it is unlikely that the court or tribunal would accept it, unless it were accompanied by an affidavit from a qualified interpreter who:

• swore an oath or made an affirmation that they had accurately translated the prescribed words from English into the deponent's language and translated what the deponent said in their language into English
• provided a written translation in English of the deponent's affidavit.

Fees and affidavits

If you will use your affidavit in Australia, an affidavit taker cannot charge a fee. A public notary may charge a fee if the affidavit is for use outside Australia. A person may charge for preparing or drafting the contents of an affidavit.

Information for authorised affidavit takers

If you are authorised because of your profession you can take any affidavit, not just those that relate to your profession.

The only exception is persons employed in a court or tribunal with a classification level of 2 or 3, such as Victorian Civil and Administrative Tribunal counter staff, who are only permitted to take affidavits in the course of their duties.

Anyone can make an affidavit

If a person is able to understand that they are making a legal promise to tell the truth, and that being untruthful in an affidavit is an offence, they can make an affidavit.

Helping someone make their affidavit

If a person also has a disability that makes it difficult or impossible to comply with the legal requirements for making an affidavit, you may need to modify the process so that a deponent can complete their affidavit.

Making reasonable changes to the affidavit process does not require a medical assessment. You should use your own good judgement about what is necessary to ensure a person's disability does not prevent them making an affidavit.

Interpreters

People who do not feel confident swearing an affidavit in English can request the services of an interpreter.

When an interpreter is used, the process is as follows:

• The interpreter undertakes 'the interpreter's oath', which ensures that the interpreter translates what they hear or read to the best of their ability and in accordance with the law.
• The interpreter reads a translation of the affidavit to the deponent.
• The interpreter translates the oath or affirmation for the deponent. The deponent may repeat the oath in their own language.

Hearing-impaired people

Any deponent (the person swearing the affidavit) with a hearing impairment or preferring to communicate in sign language may use an interpreter. The interpreter's oath and form of jurat used for persons of a culturally and linguistically diverse background should be modified accordingly.

When an interpreter is not used

When an interpreter is not used and the deponent can read and write, the deponent should sign the affidavit and choose whether to swear or affirm the content of the affidavit.

If the deponent chooses to swear the affidavit ('make an oath') he/she may be handed their preferred religious text and a paper with the statement: 'Is this your name and signature?'.

Upon the deponent making an affirmative gesture such as nodding of the head, the person taking the affidavit should show the deponent a paper on which is written: 'I, [name of person making oath], swear [or promise] by Almighty God [or the person may name a god recognised by the person's religion] that the contents of this affidavit are true and correct'. Again, an affirmative gesture is required.

If the deponent chooses to affirm the affidavit ('make an affirmation') he/she should be shown a paper with the statement: 'I, [name of person making affirmation], solemnly and sincerely affirm that the contents of this affidavit are true and correct.'.

Again, an affirmative gesture is required from the deponent.

If the deponent is hearing but not speech-impaired, the oath may be administered by asking the deponent to read aloud the oath, which should be placed before the deponent in writing.

Inadvertent non-compliance of an affidavit

If a person makes a small, insignificant mistake that does not strictly comply with a requirement then the affidavit may still be valid. This will depend on each case, and may ultimately depend on a court ruling. Not making the oral oath or affirmation will invalidate an affidavit.

Asking the person making their affidavit to swear the oath or make an affirmation

A person making an oath or affirmation for an affidavit must say the prescribed words aloud. They may repeat the words after the authorised affidavit taker has spoken them, or read them aloud. It is not sufficient (unless reasonable modifications must be made because of a disability) to simply answer yes to questions such as 'Are the statements made in this affidavit true and correct?'

Wording of your authority to take an affidavit

You should use the wording referred to in the list of authorised affidavit takers above. So, for example, an Australian legal practitioner is authorised to take an affidavit.