Public Notaries Act 1997 – Section 3A – Notes

Section 3A, which was inserted into the Public Notaries Act 1997 (NSW) by the Statute Law (Miscellaneous Provisions) Act 1999 (NSW) states that “Notes included in this Act are explanatory notes and do not form part of this Act.”

This section provides certainty as to the significance of notes which may appear in the Act, and the extent to which they can be used in the process of legislative interpretation. On some occasions, a note can assist in the interpretation of an ambiguous provision within a legislative instrument. However the courts have had different views concerning the extent to which notes can be used for this purpose.

Some authorities have held that notes cannot be taken under consideration when interpreting statutes: Frauenfelder v Reid (1963) 109 CLR 42 and Bradley v Commonwealth (1973) 128 CLR 557. However, there is authority to suggest that notes can have marginal or limited utility for the purposes of statutory interpretation. For example, Joyce v Paton (1941) 58 WN (NSW) 88 held at 90 that notes can be considered if they illuminate the “drift of the section” which is being interpreted. However, the Court in Dugen v Mirror Newspapers Ltd (1979) 142 CLR 583 at 594 stated that marginal notes are at the very most “only a quite minor aid” in this regard. On the other hand, a more expansive view was proffered by Chief Justice Street of the NSW Supreme Court in Ombudsman v Moroney [1983] 1 NSWLR 317, in which he held:

If a clause in a Bill accompanied by a marginal note passes through Parliament unamended and that marginal note is printed on the formal bill to which Royal assent is given, I see every reason to regard it as a legitimate source upon which to draw as an aid to construction of the section. (p. 324)

However, Street CJ continued that:

I fully recognise that not being part of the Act, it cannot control the meaning of the section. It may well be only rarely that such doubt or ambiguity will arise as will result in useful reference to n authenticated marginal note for its resolution (p. 325)

This section has the effect of explicitly stipulating that notations which may appear in parts of the Public Notaries Act 1997 are not part of the Act but merely serve to assist in understanding the purpose or effect of the sections to which the notations are attached. The section may also be compared to, or read alongside section 35(2)(c) of the Interpretation Act 1987 (NSW).

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The information provided on this domain is based on reprint No. 1 (9.5.’06) of the Public Notaries Act 1997 (NSW) as in force on 17.7.’09. This short article is provided for general knowledge purposes only and is not to be used for the purposes of legal advice. This short article is copyright to the writer.