Public Notaries Act 1979

Public Notary is defined (s 3) as either a General Public Notary or a District Public Notary, depending on the scope of commission. General Public Notaries have powers equivalent to those of Public Notaries in the United Kingdom and may exercise them anywhere in Western Australia (s 15(1)). District Public Notaries are limited to exercising those powers in a district prescribed by rules made under s 17 (s 15(2)). There is no statutory list of districts in the Act; the definition of “district” in s 3 simply means “a district prescribed by rules made under section 17”. This means a practitioner cannot know the geographic boundaries of a district without consulting the rules.

Established Public Notary (s 3) is a person who was an enrolled notary immediately before the commencement date (1 August 1980). Such persons are deemed to have been appointed as General Public Notaries under the new Act (s 5(1)). This transitional provision grandfathered existing notaries without requiring them to reapply, but also locked in the geographic scope of their practice (General, not District) even if they had previously held a limited commission.

Roll of Notaries is the official register that continues from the repealed Act. The registrar of the Supreme Court keeps the roll (s 14(1)), and a certificate under the registrar’s hand about any matter appearing in the roll is conclusive evidence (s 14(4)). The roll is public and inspectable without fee (s 14(4)).

Applicant (s 3) means a person seeking appointment as a Public Notary. The qualification criteria are set out in s 7(2): the applicant must be a lawyer not under suspension from legal practice; must have been a practitioner of the Supreme Court of at least three years’ standing and practice (or less than three years but with seven years’ practice as a notary elsewhere); must be of good character and reputation; must be competent to act in the relevant category; and, critically, must satisfy the Chief Justice that “there is a need for the appointment of a Public Notary in the district where the applicant is practising” (s 7(2)(e)). This “need” requirement is a significant barrier to entry and gives the Chief Justice broad discretion to control supply. The Act does not define “need”, nor does it require any objective market assessment. This creates the potential for incumbent notaries (or the Attorney General) to argue against a new appointment by claiming that sufficient notarial services already exist in the district.

Supreme Court (full bench) (s 3) means the Supreme Court constituted by at least three judges. Appointments and disciplinary actions (suspension or striking off) must be made by this full bench (ss 6(2), 16(1)). This high threshold - requiring three judges rather than a single judge or registrar - adds to the cost and complexity of both obtaining appointment and disciplining notaries. It also means that disciplinary proceedings are likely to be rare and expensive.

Oath is required before enrolment (s 13). The prescribed oath includes promises not to make or attest any act, contract or instrument involving “violence or fraud” and to act uprightly and justly according to the notary’s best skill and ability. The oath is administered before the master of the Court or a prescribed person. This is a one-time requirement; there is no periodic renewal of the oath.

The Act directly affects lawyers who seek to become Public Notaries, existing notaries, clients who require notarial services, and the legal profession more broadly. Lawyers who are practitioners of the Supreme Court of at least three years’ standing are the primary pool of potential applicants (s 7(2)(b)). Those with less than three years’ standing can apply only if they have practised as a notary elsewhere for seven years (s 7(2)(b)(ii)), which effectively restricts entry for junior local lawyers. The “need” requirement in s 7(2)(e) means that a lawyer cannot simply decide to become a notary; the Chief Justice must be satisfied that there is a demand in the district where the lawyer practises. This gatekeeper function protects existing notaries from competition, because a new notary can only be appointed if the Chief Justice concludes that the existing supply is insufficient. The concentrated benefit to incumbents - reduced competition - is funded by diffuse costs to clients in the form of potentially higher prices and limited choice, though the fee cap in s 15A sets an upper bound.

Clients who need notarial services - for example, businesses executing documents for foreign transactions, individuals requiring certified copies or witness of affidavits, and parties to international agreements - are affected by the geographical limitation on District Notaries. If no notary is available in a given district, clients must travel to a district where one practises or use a General Notary willing to travel. The Act does not mandate that notaries provide services to the public, so a notary could theoretically decline to act even if a need exists. The fee cap provides some protection against price gouging, but it also creates a disincentive for notaries to offer services if the capped fee does not cover their costs, particularly for complex or time-consuming acts.

The Supreme Court itself is affected: its registrar maintains the roll and issues certificates (s 14), its judges make rules (s 17), and the full bench must hear applications for appointment and discipline. The Chief Justice plays a central role in assessing qualifications and issuing certificates (s 8). The Attorney General has standing to report on applications (s 10(1)), to intervene in proceedings (s 10(2)), and to consult any body of notaries established in the State (s 10(4)). This gives the executive a direct role in the appointment process, potentially allowing political or policy considerations to influence who becomes a notary.

Any person (not just a notary) may object to an appointment by lodging written notice stating grounds at least seven days before the hearing (s 11). This open standing provision means that a competitor, a client, or even a stranger can block or delay an appointment. The costs of responding to an objection - including legal fees for the hearing - fall on the applicant, increasing the effective cost of entry. The Act does not limit objections to those with a genuine interest, nor does it provide for costs against frivolous objectors.

Duties of a Public Notary under the Act are minimal. The primary duty is set out in the oath (s 13): not to make or attest any act, contract or instrument known to involve violence or fraud, and to act uprightly and justly in the business of a notary according to the best of the notary’s skill and ability. This is a general ethical standard rather than a detailed list of obligations. The Act does not require a notary to maintain professional indemnity insurance, undertake continuing education, or keep records of notarial acts. Those requirements, if any, would have to be imposed by rules made under s 17 or by other applicable laws such as the Legal Profession Uniform Law (WA). The absence of statutory duties beyond the oath leaves significant gaps: there is no explicit requirement to verify the identity of clients, to maintain a register of acts, or to keep documents confidential, though these may be implied by the oath and by common law.

Rights include the right to exercise notarial powers. For a General Public Notary, this extends to all powers lawfully exercisable by notaries in the United Kingdom and in Western Australia (s 15(1)). The reference to UK powers is notable because it incorporates a foreign legal tradition into WA law; the scope of those powers may be uncertain and could change if UK law changes. For District Public Notaries, the right is limited to their prescribed district (s 15(2)). The right to charge fees is expressly given by s 15A, but is capped by the costs determination under the Legal Profession Uniform Law Application Act 2022 s 133. This cap may be seen as protecting clients, but it also restricts a notary’s freedom to contract. If the capped fee is set below the market-clearing price, it could lead to reduced supply of notarial services, rationing by means other than price (e.g., only serving existing clients), or a shift to informal arrangements that avoid the cap.

A notary also has the right to have their name entered on the Roll of Notaries after taking the oath (s 14(2)) and to receive a certificate from the registrar (s 14(3)). The certificate must indicate the category of appointment and, for District Notaries, the district. There is no expiry date on the certificate; it remains valid unless the notary is suspended or struck off. The right to inspect the roll without fee (s 14(4)) is a public right, not just a notary’s right.

Rights in the appointment and discipline process are held by applicants and notaries respectively. An applicant has the right to apply to the Chief Justice for a certificate (s 7(1)) and, after advertisement, to apply to the full bench for appointment (s 9). A notary subject to suspension or striking-off proceedings has the right to be heard; the Act does not specify procedural details, but the full bench must act “on such terms and conditions as may seem fit” (s 16(1)), which implies a discretion. Notably, s 16(2) provides for automatic suspension or striking-off of a notary who is suspended or struck off as a legal practitioner under the Legal Profession Uniform Law (WA). That automatic operation denies the notary any separate hearing on the notarial aspects of their conduct; the discipline flows mechanically from the lawyer discipline decision. This saves administrative cost but may be harsh if the lawyer’s misconduct was unrelated to notarial functions, or if the lawyer discipline decision is later overturned on appeal.

Penalty for unauthorised practice is $500 (s 19). This is a single fixed penalty, not a daily or per-offence fine. The amount has not been increased since the Act commenced in 1980 (see compilation table; no amendment to s 19 appears). Adjusting for inflation, $500 in 1980 is roughly equivalent to several thousand dollars in 2025, yet the literal statutory maximum remains $500. This creates a weak deterrent. A person caught practising as a notary without authorisation faces a trivial monetary penalty, especially if the unauthorised practice generates significant fees. The low penalty may encourage non-compliance, particularly by unqualified conveyancers or other document preparers. The Act does not provide for imprisonment or other sanctions for first or subsequent offences, nor does it create a private right of action for clients harmed by unauthorised notarial acts.

Enforcement mechanisms are not specified in the Act beyond the general penalty. It appears that proceedings would be summary prosecutions in a magistrates court, but the Act does not designate who may prosecute. Potentially, the Attorney General, the Supreme Court, or private individuals could initiate proceedings. The lack of a designated regulator means that enforcement is likely sporadic. No provision is made for regulatory investigations, search warrants, or orders to cease practice pending trial. The $500 penalty is also low enough that a notary who has been struck off might take the risk of continuing to practice, especially if detection is unlikely.

Discipline of notaries is handled by the Supreme Court (full bench) on the application of any person (s 16(1)). The full bench may suspend a notary from practice, call in their certificate, strike them off the roll, or cancel their certificate. The grounds for discipline are not stated in the Act; the only explicit trigger is the automatic provision in s 16(2) for suspension or striking-off consequential on lawyer discipline under the Legal Profession Uniform Law (WA). For misconduct not related to legal practice, the full bench presumably has inherent jurisdiction, but the Act gives no criteria. This uncertainty makes disciplinary proceedings unpredictable and may deter the filing of complaints. The absence of a lower-cost disciplinary tribunal or committee means that even minor complaints must be heard by a panel of at least three Supreme Court judges, which is expensive and time-consuming.

Automatic discipline under s 16(2) means that a notary who is suspended from legal practice is automatically suspended as a notary for the same term; and a notary who is struck off the roll of practitioners is automatically struck off the Roll of Notaries, without any order from the full bench. This avoids a separate proceeding, but it also means that the notary cannot argue that the notarial practice should be treated differently - for example, if the lawyer’s suspension was for minor trust account breaches that do not affect their notarial integrity. The Act does not allow for a variation or stay of the automatic consequence.

The Act sits within a broader legal framework for legal practice in Western Australia. The most significant interaction is with the Legal Profession Uniform Law (WA), which governs the regulation of lawyers. Section 7(2)(a) requires that an applicant for notary appointment be a “lawyer” and not under suspension from legal practice. The definition of “lawyer” is drawn from the uniform law regime (via amendments by No. 9 of 2022 s. 424). Consequently, a person who loses their lawyer status - for example, by ceasing to hold a practising certificate or being struck off - can no longer be appointed and, if already appointed, faces automatic discipline under s 16(2). The notary appointment is thus parasitic upon legal practitioner status; there is no route to becoming a notary without being a practising lawyer.

The fee cap in s 15A references “legal costs determination made under the Legal Profession Uniform Law Application Act 2022 section 133”. This means that the maximum fees a notary may charge are set by the Legal Costs Committee or similar body under the uniform law framework. The cap is not determined within the notaries Act itself, but from an external costs determination process that applies primarily to legal fees. This may create anomalies: for example, a costs determination intended for litigation costs may not accurately reflect the appropriate price for notarial services such as certifying copies, witnessing signatures on international documents, or preparing protests for non-payment of bills of exchange. Notaries are obliged to keep within the cap, but they may also be able to charge less; the Act does not set a floor.

The oath in s 13 is to be taken before the master of the Court or a person prescribed by rules (s 13). The Oaths, Affidavits and Statutory Declarations Act 2005 (WA) may affect the form and administration of oaths generally, but s 13 sets its own form of oath specific to notaries. No reference is made to the Electronic Transactions Act 2011 (WA) or equivalent Commonwealth laws for electronic notarisation. This omission means that the legal validity of electronic signatures and remote witnessing for notarial acts is left to general law, potentially creating uncertainty for notaries who wish to use digital methods.

The Act does not explicitly interact with the Personal Property Securities Act 2009 (Cth) or the Corporations Act 2001 (Cth), though notarial services are often required for documents governed by those laws. A notary’s powers under s 15(1) (incorporating UK notarial law) may extend to creating documents recognised internationally under the Hague Apostille Convention; the Act does not address apostilles directly, but the power to authenticate documents would be the basis for such actions.

The Free Trade Agreements or Mutual Recognition Acts are not mentioned; notarial appointments under this Act are likely not recognised automatically in other Australian states, which have their own notary legislation. This means a WA notary may need to obtain separate appointment in other jurisdictions to practice there.

The Act has been amended six times since its commencement on 1 August 1980. The Public Notaries Amendment Act 1997 (No. 46 of 1997) inserted s 15A, which introduced the fee cap. Before this amendment, there was no statutory cap on notarial fees. The 1997 Act also amended s 17 to add a reference to “imposing conditions to be observed by applicants for re-appointment”, though no re-appointment provisions exist in the Act itself; this change may have been intended for rules.

The Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (No. 65 of 2003) amended s 7 and s 16 to replace references to “practitioner” with “lawyer” and to update cross-references to the then-new Legal Practice Act 2003 (later replaced). This reflected the shift in Western Australia from the old “practitioner” terminology to the broader “lawyer” under uniform legal profession reforms.

The Acts Amendment (Court of Appeal) Act 2004 (No. 45 of 2004) amended several sections (ss 3, 6, 9, 10, 11, 12, 16) to replace references to “Full Court” with “Supreme Court (full bench)”. This was a technical amendment following the establishment of the Court of Appeal in WA, ensuring that notary appointments and discipline continue to be handled by a panel of at least three judges of the Supreme Court rather than the old Full Court.

The Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004) made a minor amendment to s 3, deleting a definition of “Full Court” that was no longer needed.

The Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 (No. 24 of 2005) amended s 13 to replace the phrase “a Judge of the Supreme Court or a Commissioner of the Supreme Court” with “the master of the Court or a person prescribed for the purpose by rules made under section 17”. This modernised the list of oath-takers.

The Legal Profession Act 2008 (No. 21 of 2008) amended ss 3, 7, 15A, and 16 to replace references to the Legal Practice Act 2003 with the Legal Profession Act 2008, and to update terminology.

The Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022) amended ss 3, 7, 15A, and 16 to update references from the Legal Profession Act 2008 to the Legal Profession Uniform Law and to the Legal Profession Uniform Law Application Act 2022. This amendment reflects the adoption of the uniform law in Western Australia from 1 July 2022.

Notably, s 19 (penalty for unauthorised practice) has never been amended. The $500 penalty remains the same as in 1979. The compilation table shows that the Act was reprinted twice: as at 5 September 2003 and as at 8 May 2009.

The Act itself does not cite any litigation, and the text is too bare to generate frequent reported decisions. No cases are referred to in the legislation. Given the small number of notaries in Western Australia (typically fewer than 100), disputes about appointments or discipline are rare. Objections under s 11 may have been heard in unreported decisions, but there are no widely known appellate rulings interpreting the Act. The Supreme Court’s full bench hears applications for appointment and discipline, but those proceedings are not automatically reported.

The absence of a litigation history is itself significant: it suggests that the Act’s provisions are either clear enough to avoid dispute, or that the high costs of litigation (particularly with a full bench) deter challenges. The Attorney General has standing to intervene (s 10), but there is no public record of that power being exercised controversially. The automatic discipline provision in s 16(2) may occasionally be tested where a notary argues that the automatic consequence should not apply because the lawyer’s suspension was stayed or overturned, but no such case is noted in the source.

The Act’s reference to “powers lawfully exercised by Public Notaries in the United Kingdom” (s 15(1)) potentially invites interpretive litigation about the scope of those powers, but no Australian case has definitively settled how far UK notarial law is incorporated. This creates latent uncertainty: if UK law changes, WA notaries’ powers may change accordingly, leading to potential disputes about the validity of past acts.

The $500 penalty is almost certainly obsolete. For unauthorised practice, the maximum fine of $500 has not been increased since 1979. Adjusted for inflation, $500 in 1980 would be about $3,000 in 2025, but the literal maximum remains $500. A person who practises as a notary without authorisation and charges, say, $200 per document for 50 documents would gross $10,000, and the maximum penalty would be only $500, a trivial 5% of revenue. This creates a significant moral hazard and provides little deterrence. The Act does not provide for consumer compensation or restitution orders, so the unauthorised practitioner keeps the profits even if convicted.

The “need” requirement (s 7(2)(e)) is a restrictive licensing provision that protects incumbents. The Chief Justice must be satisfied that there is a need for a new notary in the district. This is not a market test; it is a subjective assessment by a single judicial officer, who may rely on representations from existing notaries or the Attorney General. There is no requirement for an economic analysis or for the Chief Justice to consider consumer demand. This provision enables existing notaries to oppose new appointments, even if the existing notaries are not providing services at competitive prices or accessible locations. The effect is to limit supply artificially, which tends to keep prices higher than they would be in an open market, and to reduce convenience for clients.

The objection process (s 11) is open to any person, with no requirement for standing or merit. A competitor, a disgruntled client, or even a person with no connection to the district can lodge an objection. The objection must be in writing with grounds, lodged at least seven days before the hearing. The Act does not require the objector to file any security for costs, and does not allow the full bench to strike out frivolous objections summarily. An applicant could face a costly hearing even if the objection is baseless. This procedural risk raises the cost of entry.

Automatic discipline under s 16(2) may be disproportionate. If a notary is suspended as a lawyer for a minor technical breach (for example, failure to comply with a CPD requirement), they are automatically suspended as a notary for the same period, even though the notarial practice may be entirely unrelated. The notary has no opportunity to argue that the suspension should not extend to notarial work, or that the notarial certificate should remain valid for existing transactions. The full bench does not have discretion to vary the automatic consequence.

Fee cap may not reflect the cost of complex notarial services. Section 15A caps fees at the amount fixed by legal costs determination under the Legal Profession Uniform Law Application Act 2022 s 133. That determination is designed for legal fees for contentious and non-contentious work; notarial services such as attending protests of bills of exchange, preparing ship’s protests, or handling international document certifications may require specialised knowledge and time that the standard costs determination does not adequately cover. Notaries may be forced to subsidise certain services or decline them altogether.

No requirement for currency of practice. The Act does not require a notary to practice actively or to update skills. Once appointed, a notary remains on the roll indefinitely unless suspended or struck off. A notary who ceases to practice law may still hold a notary appointment, potentially misleading clients. There is no periodic renewal or statement of continuing competence.

The Roll of Notaries is conclusive evidence of appointment (s 14(4)), but there is no online or central searchable database mandated. The roll is likely kept in paper form at the Supreme Court. This limits access for clients and businesses who need to verify a notary’s credentials quickly.

For a lawyer seeking appointment as a Public Notary, the steps are set out in ss 7-14. First, the applicant must satisfy the qualifications in s 7(2): be a lawyer (not under suspension), have at least three years’ standing as a practitioner of the Supreme Court (or seven years as a notary elsewhere), be of good character and reputation, be competent, and show a need in the district. The applicant applies in the prescribed manner to the Chief Justice (s 7(1)), specifying whether they seek General or District appointment, and if District, the districts they want. The Chief Justice issues a certificate if satisfied (s 8). The applicant must then advertise their intention to apply to the Supreme Court (full bench) in a prescribed manner, with the hearing date not earlier than four weeks from the first advertisement (s 9). At least seven days before the hearing, any person may lodge a written objection (s 11). The Attorney General may intervene (s 10). The full bench may then make an order appointing the applicant (s 12). Before enrolment, the notary must take an oath under s 13, administered by the master or a prescribed person. The notary then signs the roll and receives a certificate (s 14). The appointee must also pay prescribed fees to the Supreme Court, which go to the Court library (s 18). Compliance requires careful attention to the rules made under s 17, which may prescribe application forms, advertising details, and additional requirements not in the Act. The Act does not specify a maximum time for the Chief Justice to decide, so applicants should budget for potential delays.

For an existing notary, ongoing compliance primarily involves remaining as a practising lawyer (not suspended or struck off) and charging fees within the cap under s 15A. The notary must not practice beyond the geographic scope of their commission (statewide for General, district-only for District). If the notary receives a complaint or is the subject of a discipline application under s 16(1), they should seek legal advice and appear before the full bench. If the notary is suspended or struck off from legal practice, they are automatically suspended or struck off as a notary (s 16(2)) and must immediately cease notarial practice and, if applicable, surrender their certificate.

For clients seeking notarial services, it is prudent to verify the notary’s enrolment by inspecting the Roll of Notaries at the Supreme Court registry (s 14(4)). Clients should confirm whether the notary is a General or District Notary and that the act is being performed within the notary’s authorised territory. Clients should also ensure that the fee charged does not exceed the applicable costs determination; if it does, the notary may be in breach of s 15A, though the Act does not provide a client remedy for overcharging. The $500 penalty in s 19 applies only to unauthorised persons; if a client suspects that a notary is not properly enrolled, they can report the matter to the Supreme Court or the Attorney General, though the Act does not designate a specific complaint body.

For the Supreme Court and rule-makers, compliance means maintaining the Roll of Notaries (s 14), issuing certificates, and exercising the rule-making power under s 17 to fill gaps in the Act. The rules must encompass fees payable on appointment (s 18), the manner of advertising applications, and the forms for certificates and applications. The rules can also prescribe duties of notaries, which if not made leave notaries without clear guidance. A notary should request a copy of any rules made under s 17 and review them for additional compliance obligations (such as record-keeping, continuing education, or notification of change of address). The Act does not require the rules to be published in the Gazette or online, so locating them may require a direct request to the Supreme Court registry.