There are some circumstances in which a notary will
decline a request for intervention. Please take this page as a
non-exhaustive guide to such
circumstances. If in doubt, please contact me for advice.
The Notary's Oath
Every South Australian notary has sworn the following oath, or made the
following affirmation, on assuming office as a Notary:
"I . . . do swear [truly and
solemnly affirm] that I
will not make or attest
contract or instrument in which I know there is violence or fraud; and
in all things I will act uprightly and justly in the business of a
public notary according to the best of my skill and ability. [So help
Therefore, if there is any suggestion of violence or fraud or
irregularity in any aspect of the matter, the notary will decline to
The notary will not intervene in any matter in which the identity of
any party or witness cannot be verified to the
notary's reasonable satisfaction.
Genuine original current identity documents must be produced.
Similarly, if the appearer claims to represent another person or a
company or other entity, satisfactory proof of the appearer's authority
to do so must be produced, otherwise the notary will not intervene. The
existence and identity of the other person or entity must also be
The notary will not certify, or attest to, anything which is not within
the notary's certain knowledge, or which cannot be proved to the
notary's reasonable satisfaction.
The notary will not intervene in any transaction, or in respect of any
document, if the appearer lacks legal capacity, i.e., is under 18 years
of age; or does not understand the nature and effect of the
transaction, when it is explained; or suffers from a disabling mental
illness or affective disorder.
Some documents call for the signatures of one or more witnesses to the
signature of the appearer. A witness is a person who witnesses (sees)
sign the document. It is not acceptable for a person to sign a document
as a witness if that person was not present and did not see the
appearer sign the document. If an appearer wishes to sign a document
without the required witnesses present, the notary will refuse
Breach of Australian or foreign law
The notary will refuse to intervene when he or she knows or suspects
that the transaction or the intent of the appearer will be a breach of
Australian law or the law of a foreign jurisdiction.
Breach of international law or obligation
The notary will also refuse to intervene in the case of a
or suspected breach of international legal obligations,
economic and trade sanctions regimes. Please see the "Sanctions Regimes" website
Australian Department of Foreign Affairs and Trade.
Blank spaces in documents, or missing components
The notary will not intervene or administer an oath or affirmation, or
declaration if the text of the document includes unfilled spaces, or if
it refers to exhibits, annexures or attachments which are not produced
with the document.
Documentation of some financial transactions
The notary must approach financial transaction
documents with extreme caution. Documents such as contracts of
guarantee (or indemnity or surety), mortgages, loans and the like
present particular dangers. Such documents may include terms to the
effect that the notary certifies that the document has been
read aloud to the signatory, and/or that the notary has
explained, and the signatory has a full understanding
and appreciation of, all the risks, legal or otherwise, of entering
into the transaction. The effect of such certification, if provided by
the notary, may be to transfer all the risks of the transaction to the
Documents created for domestic purposes
Although notaries are authorised to administer oaths and
certify copy documents and perform other functions under many
Australian laws, they will usually not perform these functions for
purely domestic Australian purposes. Commissioners for Taking
Affidavits and Justices of The Peace provide these services.
Documents in forms prescribed by Australian laws
The notary will generally not intervene in respect of documents
prepared in compliance with forms prescribed by Australian
laws for Australian domestic purposes. Such documents are unlikely to
be effective, or acceptable, in
foreign jurisdictions. A commonly seen example of such a document is
the enduring power of attorney prescribed under the South
Australian Powers of
Attorney and Agency Act 1984
Documents written in a foreign language
If a document is written in a foreign language, and the notary is not
competent to read that language, the notary will generally not
intervene unless a reliable translation of the document is produced.
Documents for which some imagined higher level of
status is sought
There is a common misconception that the mere presence of a notary's
signature and seal on an otherwise ordinary document will confer on
that document some special degree of authenticity or status to which it
would not otherwise be entitled. A notary's seal affixed to a
document, accompanied or not by the notary's signature, is
unless it is preceded by a legitimate, effective certificate. A request
for a notary to sign and seal a document merely to give
that document a certain cachet
or to enable it to be further
decorated with an apostille or authentication, will be declined.
It is not unknown for appearers to demand notarial
respect of documents full of pompous pseudo-legal nonsense. Such
documents are devoid of legal substance, and meaningless, and are
usually intended for some disreputable purpose. The notary will
have nothing to do with them.