Public Notaries Appointment Rules – Rule 11 – Production of the Notarial Seal by New South Wales Public Notaries

Rule 11 of the Public Notaries Appointment Rules (NSW) states that “A Public Notary shall furnish to the Registrar within 28 days of his or her appointment a specimen of his or her signature and an impression of the Public Notary’s seal in Form 3.”  This Rule clearly outlines the process and time within which the Notary Public is to produce a device to be used by him as a seal on all future notarial acts. The format and text of the stipulated Form 3 is contained in the de facto schedule one to the Rules themselves.

While the Notary Public can chose whatever device he wishes to feature in his seal, in contrast to other jurisdictions (notably in civil law countries) a notarial seal used in New South Wales cannot contain the national or state coat of arms. This is because the use of such a symbol may give the impression that the notarised document carries the weight of, or is endorsed by, the Australian Commonwealth or the State of New South Wales’s government, agencies or authorities. The notarial seal used by a NSW Notary Public must therefore contain a unique devise which is associated with that individual Public Notary only.

The Australian Commonwealth and State coat of arms are protected symbols and cannot be used for commercial or other purposes without explicit permission from the relevant authorities. For more information, see Chapter 16, Style Manual 6th ed. (John Wiles & Sons Australia, 2002). Under Article 6ter of the Paris Convention for the Protection of Industrial Property (1883), all signatories – of whom Australia is one – have agreed to prohibit the abuse of certain protected national symbols. For further information on Australia’s attempts to ensure that its national symbols are not abused, see: Standing Committee on Legal and Constitutional Affairs, House of Representatives, The Use of the Coat of Arms: A Report of the Inquiry into the Use of the Commonwealth Coat of Arms (December, 1994).

The use of protected symbols in a notarial seal may therefore be a breach of several municipal or domestic laws, including but not necessarily limited to:

  • Section 39 of the Trade Marks Act 1995 (Cth) which prohibits the registration of trade marks that are prescribed. This prohibition also includes a “sign so nearly resembling” the prescribed mark. A Commonwealth or State device may fall under the definition of a “prescribed” mark for the purposes of section 39.
  • Section 29 which is contained in Volume 3, Schedule 2, Chapter 3 of the Competition and Consumer Act 2010 (Cth) (formerly section 53 of the old Trade Practices Act 1975 (Cth)) and which prohibits “false or misleading representations about goods or services”. The use of a Commonwealth or State protected device may falsely or misleadingly represent that the notarial act – in and of itself – has the imprimatur of a Commonwealth or State authority.
  • Article 145.1 of the Criminal Code, which is located in the schedule to the Criminal Code Act 1995 (Cth) and which prohibits the use of forged documents. The unauthorised use of a Commonwealth or State device may be construed, in some circumstances, as a “forgery” for the purposes of article 145.1 of the Code.

Particular care must therefore be taken by an appointee to the office of Notary Public that his notarial seal does not contravene any laws restricting the use of certain images, such as national or state coats of arms, flags and the like.

Notarial services in Sydney (mobile in Milsons Point, McMahons Point, Kirribilli and surrounds) can be offered to meet an individual’s requirements, such as the witnessing of documents, the authentication of materials (whether written or not), the taking of declarations, as well as the preparation of other notarial certificates intended to be utilised by non-Australian authorities, non-government organisations (NGO) or other private institutions located outside the Commonwealth. If you are looking for a Public Notary in Sydney, we look forward to hearing from you.

The data in this article is based on reprint No. 1 (6/9/13) of the Public Notaries Appointment Rules (NSW) as in force at 23/9/08. This brief article is provided for generalist knowledge purposes only and is not to be treated as legal advice. This short article is copyright to the writer.
Advertisements