Public Notaries Act 1997 – Section 6 – Appointment of Public Notaries

Section 6 of the Public Notaries Act 1997 (NSW) deals with the appointment of Notaries Public in the state of New South Wales, and their removal from the roll of Notaries if and when they have failed to discharge their responsibilities to the required professional standard.

The regime NSW for the appointment and removal of Notaries Public is stringent. It can be contrasted to, for example, some jurisdictions in the United States where an individual can be appointed to an equivalent office without having even completed a law degree, let alone practiced in the legal profession.

Section 6 of the Act is broken down into four sub-sections and reads as follows:

(1) The Court may appoint and enrol a person as a public notary in accordance with this section.
(2) The Court is, on any day appointed by the Court for the purpose, to hear and determine any application made for the appointment as a public notary of a person approved by the Admission Board as a suitable candidate for appointment.
(3) The Court may order that the name of a person be removed from the roll for misconduct as a public notary, incompetence as a public notary or for any other reason the Court considers warrants removal.
(4) Misconduct as a public notary includes conduct that, had it been done as an Australian legal practitioner, would be or be capable of being unsatisfactory professional conduct or professional misconduct under Chapter 4 of the Legal Profession Act 2004.

Under the section, it is the Court which appoints and disqualifies Notaries Public. Section 3 of the Act defines “Court” as the Supreme Court. The Supreme Court considers candidates which have first been approved by the Admissions Board as “suitable” for appointment. Suitability is assessed according to the criteria for approval in rule 4 of the Public Notaries Appointment Rules.

This criteria under the Rules broadly includes the following: that the candidate is admitted to practice law in the state of New South Wales, that the candidate’s practicing license has been held for an unbroken period of five years, a certificate obtained after the completion of the requisite notarial course and any other evidence of professional experience that may be considered necessary to advance the candidate’s application.

Naturally, a candidate can only discharge his duties as a Notary Public after he has been approved by the Board and appointed by the Court.

In the event some gross breach of duty has been alleged and proven, a Notary Public can be removed from the roll for either “misconduct” or “incompetents”. The term “misconduct” is taken to have the same meaning for the purposes of this Act as the terms “unsatisfactory professional conduct” or “professional misconduct” in, respectively, sections 496 and 497 of the Legal Profession Act 2004 (NSW).

Under section 496 of the Legal Profession Act 2004 (NSW), “unsatisfactory professional conduct” is defined as “conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”

Under section 497(1) of the Legal Profession Act 2004 (NSW), “professional misconduct” is broadly defined as “a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence” and “whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”

There is a certain prestige attached to Notaries Public for a reason: they are invested with a significant amount of trust by the public and are regarded as legal professionals of high standing and experience. For this reason the standard of care for the discharge f their duties is high and any misconduct will not be taken lightly by the Court.

Sydney notarial services (mobile in CBD, Broadway and surrounds) can be provided to meet a business’ demands, such as the witnessing of contracts, the authentication of documents, the taking of declarations, as well as the drafting 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. If you are looking for a Sydney Public Notary, we look forward to hearing from you.

The explanatory 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.
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