Why public notaries are more important than ever

By Tony Fifield

A very, very short history

Notaries date back to ancient Rome. Although the profession developed initially in Italy and then throughout Europe, it eventually reached England and Wales.

Prior to 1279, in England most notaries were Italian and had been appointed by “imperial or papal authority”. In 1279, and before the Reformation, the Archbishop of Canterbury was granted authority by the Pope to appoint notaries . In Western Australia, notaries are now appointed by the Supreme Court in accordance with the Act (Section 12 of the Public Notaries Act 1979 (WA)), however, in jurisdictions such as Queensland and New Zealand, notaries are to this day still appointed by the Archbishop of Canterbury.

Notaries now play a central and influential role within civil jurisdictions. Notaries in these jurisdictions hold specialist qualifications and skills and are entrusted with creating and executing documents which hold “public faith”. In other words, the documents created and executed by a Notary hold absolute probative value in the courts.

In the common law jurisdictions, the role of the notary became more prevalent with the proliferation of private citizens using their own seals. “Prior to the twelfth and thirteenth centuries the sealing of instruments had been the prerogative of the king, princes and bishops who used them … for authenticating documents”.

With the proliferation of private seals, there was increasing difficulty of identification and a greater extent of forgery. Although within England and Wales this issue was addressed by other means, in Europe this was impacting trade and commerce. There was a need for produced sealed instruments to be reliable but, more importantly, to be authentic. As like the civil jurisdiction notary, the common law notary was reposited with the “trust and fidelity” to act as the authenticator of instruments under their own seal. As Lord Eldon (Lord Chancellor of the time) stated over 200 years ago, “By the law of nations, a notary has credit everywhere” (Hutcheon v Mannington (1802) 6 Ves 823). This is still true today.

The public notary in Western Australia

In Western Australia, at the time of English settlement, three notaries were initially appointed by Governor James Stirling. Although subsequent Governors appointed more notaries, the legitimacy of these appointments was questionable. This issue led to the introduction of the Public Notaries Act 1902 (WA) (1902 Act). Section 3 of the 1902 Act ratified the appointment of all public notaries who had been appointed prior to the enactment of the 1902 Act and ratified all acts performed by those public notaries. Section 8 of the 1902 Act also provided that all public notaries were to be appointed by order of the “Full Court” of the Supreme Court.

The 1902 Act was replaced in 1979 by the Act. The Act introduced a distinction between a “District Public Notary” and a “General Public Notary” (Section 6(3) of the Public Notaries Act 1979 (WA)). Order 76 Rule 1A of the Rules of the Supreme Court 1971 (WA) (the SCR) sets out the districts for those applicants seeking to be appointed as a district public notary. In accordance with section 5(1) of the Act, all public notaries appointed before the Act are “deemed to have been duly appointed as a General Public Notary”. To the best of the writer’s knowledge, there has only been one appointment of a district public notary in Western Australia, and that was in 2025.

In accordance with section 7 of the Act, to be appointed as a notary:

(a) the applicant must be a lawyer who is not under suspension from legal practice;
(b) the applicant —

(i) must be a practitioner of the Supreme Court having at least three years standing and practice; or
(ii) is a practitioner of the Supreme Court of less than three years standing and practice who has practised for seven years as a Public Notary elsewhere;

(c) must be of good character and reputation;
(d) must be competent to act as a General Public Notary or a District Public Notary, as the case may be; and
(e) must be able to demonstrate a need for the appointment of a Public Notary in the district where the applicant is practising.

Order 76 of the SCR sets out the procedure for making an application to become a notary in Western Australia.

By way of convention, all applications made to the Chief Justice are referred to the Society of Public Notaries, WA Inc. (the Society) to prepare a report to the Chief Justice pertaining to the matters set out in section 7 of the Act.

For many of the applications received by the Society, it is apparent that most applicants fail to satisfactorily address the competence requirement to act as a notary.

In most jurisdictions across Australia, other than Western Australia, it is now a requirement of admission as a notary to have completed a course of study related to notarial practice. The competence requirement is common in all Australian jurisdictions. To assist applicants in making an application, the Society has prepared a draft Practice Note, to be read in conjunction with Order 76 of the SCR. Although there have been attempts to introduce a formal course of study, this has not eventuated as there has been a view that such a course would deter applicants, which are still few and far between.

In Western Australia there are currently about 70 notaries still practising.

The role of the notary

The role of the common law notary is essentially to authenticate any instrument or document presented to the notary and to identify and authenticate the signatories to those instruments and documents who present themselves to the notary or to simply authenticate a person’s identity. In each instance, these instruments or documents or the certification of identity are generally intended for use in an overseas jurisdiction that relies on the notarial act.

This role requires the notary to make full enquiry and to carefully examine presented instruments, documents and identification documents to the satisfaction of the notary. Once satisfied, the notary is then able to certify that authentication by his or her signature and apply their official seal, which then has trusted and probative value across common law and civil law jurisdictions.

As Professor Zablud states, “In Australia, a notary is a practising lawyer who holds a unique public office of trust and fidelity and who, among other things, has the internationally recognised power and authority to prepare certificates of Australian law and deeds and other instruments of all kinds authenticated by his or her signature and official seal in a manner which renders them acceptable to the judicial or other public authorities in the countries in which they are produced.”

Section 15 of the Act provides that, “[a] General Public Notary may exercise all such powers and authorities throughout the State as may be lawfully exercised by Public Notaries in the United Kingdom or in Western Australia.”

These powers include:

1. Drawing up, attesting, certifying deeds, wills or other legal documents including powers of attorney relating to real and personal property;
2. Authenticating public and private documents;
3. Attesting signatures and seals applied to documents;
4. Taking affidavits and depositions for production in foreign courts and tribunals;
5. Taking solemn declarations pursuant to relevant legislation;
6. Noting and protesting foreign bills of exchange and promissory notes for non-acceptance or non-payment or for other reasons for which a protest is requested;
7. Drawing and taking declarations by way of ship protests and also arresting ships;
8. Issuing certificates authenticating the acts, deeds, qualifications and identities of persons.

In addition, the notary may also be called upon to assist foreign courts, including taking in-person depositions or swearing in witnesses who are appearing in those courts by way of telephone or video from Western Australia.

In Western Australia, more so than the other Australian States, the local mining industry and the export industry often require the trusted services of notaries for the purpose of conducting international operations and trade.

Legalisation of the notary’s signature

In most instances documents to be sent overseas require the signature and seal of the notary to be legalised (certified as correct) by the Australian Department of Foreign Affairs and Trade (DFAT).

Once DFAT has issued its certificate and endorsed or attached it to the notary’s document, the document may also have to be certified at the consulate or embassy of the foreign country to which it is to be sent. The consulate or embassy is in effect certifying that the Australian Government’s seal and signature on the document is correct.

Many countries, including Australia, are signatories to a Convention that overcomes the double requirement of legalisation and then certification by the Consulate. Member countries issue an “apostille”, which reduces time and expense for the client. Apostille is a French word, meaning a certificate issued by a government of a country, authenticating the signature and/or seal of a public official on a public document issued by that country, and intended for use in a foreign country. Under The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 1961, the Australian authorised affixer of the Apostille is DFAT.

This multi-layered (analogue) approach minimises the risk of fraud or document tampering.

Public notary v justice of the peace

In the United States of America, the notary is usually appointed for a term of office by a state government. Their primary role is to witness the signing of important documents. They do not have to be lawyers to be appointed. The US notary has a similar role as a justice of the peace.

Like the US notary, the justice of the peace in Western Australia is appointed by the Governor and their primary role is essentially to issue search warrants, witness affidavits and statutory declarations and to certify documents

Applicants seeking to become a justice of the peace do not need to be a lawyer. They must be nominated by a State Member of Parliament. In regional areas, applicants may also be nominated by a local magistrate. There is no experience requirement, except that a justice of peace is required to undertake a prescribed training course once nominated.

A further fundamental difference of a public notary and a justice of the peace is that the attestation of a justice of the peace is not recognised outside of Australia. In other words, they do not hold the same trusted role that is recognised internationally.

The ongoing need for notaries

As a general observation, many people (including lawyers) are probably unaware of the trusted and important role of a notary.

In a communication received from the Legal Costs Committee in 2023, it was noted that in respect of the survey undertaken by the Legal Costs Committee, “it is apparent that there is a lack of understanding regarding the nature and necessity of the work of public notaries, with comments like ‘outdated’ and ‘why do we need this?’” Putting aside the vexed question of why the fee rates of notaries have been legislated to be a responsibility of the Legal Cost Committee, the responses clearly demonstrate a lack of knowledge or understanding of the role of notaries.

In this regard, now more than ever — with the rise of AI, online fraud and identity theft — the role of the notary as authenticator is more essential than ever in ensuring the probative value of instruments, documents and identities which are for use in overseas jurisdictions. Further, the multi-layered legalisation approach in respect of the verification of the signature and seal of a notary reduces the risk of fraud.

Some have argued that the development of blockchain and electronic signatures means that the future role of the notary will result in a move away, “from certification to activities of greater value added, such advisory services”.  The issue with this analysis is that it again lacks an understanding of the role of the notary. This narrow perspective focuses on certification by the notary, where the role is that of authenticator. Certification only arises from authentication, and it is the notary who is best placed to fulfil this role.