Public Notaries Act 1997 – Section 13 – Offences

Section 13 of the Public Notaries Act 1997 (NSW) establishes penalties for individuals who illegitimately or unlawfully offer, or purport to offer, notarial services to the public. The section is broken into two subsections, each of which targets a separate offense. The section reads as follows:

(1) A person, other than a person named on the roll, who advertises or holds out that the person is entitled, qualified, able or willing to practise as a public notary is guilty of an offence. Maximum penalty: 10 penalty units.
(2) A person named on the roll who, while not being a barrister or solicitor, practises as a public notary is guilty of an offence. Maximum penalty: 10 penalty units.

Subsection 13(1) focuses on individuals who cannot act as Notaries Public but either do so or pass themselves off as being able to do so. The language of the section is clear: if a person is not on the Roll but merely “advertises” or “holds out” that that individual either “entitled” or “qualified” or conveys to the public that he is “able or willing” to perform notarial services, that person will be guilty of an offense under this subsection.

This is a very broad section and needs to be considered carefully, especially by Notaries Public who are no longer on the Roll (either due to their failure to do what is necessary to remain on the Roll or due to their being stuck off). It an offence to suggest to anyone that one is a Notary Public or that one can perform notarial work if one was never on the Roll.

However, it is equally an offense if a Notary Public fails to ensure that his name remains on the Roll or if he has been removed for whatever reason. In such a situation, merely having a website or a business card with “Notary Public” or “Public Notary” on it may be construed as advertising or holding out that that person is entitled or qualified to perform those services.

In New South Wales, approval and admission as a Notary Public is conditional upon being a qualified legal practitioner of five years standing. Thus, under subsection 13(2) if a Notary Public has lost his right to practice law in the state, for whatever reason, but has not had his name removed from the Rol of Notaries Public, practicing as a Notary Public is an offence.

Interestingly, subsection 13(2) does not appear to make it an offense to “advertise” or “hold out” that the person is “entitled” or “qualified” to perform notarial work, nor does it seem to penalise an individual who has lost his entitlement to practice as a Notary Public asserting that that individual is “able or willing” to perform that work. Nevertheless, it is best to err on the side of caution and assume that a broad interpretation may be given to this subsection as well.

All penalties for breaches of this Act are measured according to what is known as a “penalty unit”. This term is defined in section 17 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) in the following terms:

Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional of whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units.

Accordingly, a breach of either of the subsections of section 13 will attract a maximum fine of $1,100.00. The likelihood that the higher end of the fine will be imposed by a Court will depend on the egregious nature of the breach or the record of the accused.

Sydney notarial services (mobile in CBD, Broadway and surrounds) can be provided to meet a business’ demands, such as the witnessing of agreements, the authentication of documents, the taking of declarations, as well as the production of other notarial acts which are intended to be used by overseas authorities, non-government organisations (NGO) or other private institutions based outside the Commonwealth of Australia. If you are looking for a Notary Public in Sydney, we look forward to hearing from you.

The explanatory information published here is based on reprint No. 1 (9 May 2006) of the Public Notaries Act 1997 (NSW) as in force at 17 July 2009. This short article is published for general knowledge purposes only and is under no circumstances to be treated as legal advice. This short article is copyright to the writer.
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