Opinion Number. 1552


VERIFICATION OF SIGNATURES TO INTERNATIONAL TELEGRAMS: appointment and functions of notaries public: affixing of seal: proof of appointment

Key Legislation

International Telecommunication Convention of Madrid 1932 Telegraph Regulations Article 17: Ecclesiastical Licences Act 1533 (Engl.) (25 Hen. VIII c. 21) s 2: Public Notaries Act 1859 (SA) s 2: Public Notaries Act 1902 (WA)

The Secretary, Postmaster-General

The Secretary, Postmaster-General’s Department, has submitted the following memorandum to me for advice:

Article 7 of the Telegraph Regulations annexed to the International Telecommunication Convention of Madrid provides that:

  1. A signature is not compulsory; it may be written by the sender in any form.
  2. The sender has the right to include in his telegram the verification of his signature, if this verification has been attested by a competent authority according to the laws of the country of origin. He may have the certification transmitted either as it is written or in the form: signature verified by … The verification is placed after the signature of the telegram.
  3. The office of origin satisfies itself that the verification is genuine. It must refuse to accept or transmit the verification if it has not been attested in accordance with the laws of the country of origin.

2. Advice would be appreciated whether there is any law, either Commonwealth or State, applicable to any part of Australia, providing for legal verification of a signature such as is discussed in the preceding paragraph, and which could be applied to International telegrams. Particulars of any such provisions would be appreciated.

From the Eleventh Century to the present day, the function of attesting and authenticating documents for use in foreign countries has been exercised by Notaries, or Notaries Public.

Brooke, in his Treatise on the Office and Practice of a Notary, 7th ed., p. 8, says:

The functions of a notary are not defined by any English Statute or published rule, but generally speaking a notary public may be described as an officer of the law whose duty it is to attest deeds, contracts and other instruments that are to be used abroad and to give a certificate of the due execution of such documents.

From the time of Richard II (circ. 400) onward, Notaries possessed a monopoly of the ‘art and mistery’ of (inter alia) confirming and attesting deeds and other writings, and this common law monopoly or right remains (subject to certain exceptions, irrelevant for the present purpose), the law at the present time in New South Wales, the Territory for the Seat of Government, Victoria, Queensland, and Tasmania.

I am of opinion therefore, that the signature to an international telegram lodged for transmission in any of those States or in the Federal Capital Territory, if it is attested or verified, must be attested or verified by a Notary Public.

Notaries (elsewhere than in South Australia and Western Australia) are appointed by the Court of Faculties (England) under the provisions of 25 Hen. VIII c.2 section 2, which is in force in the States (except South Australia and Western Australia) (See Bailleau v. The Victorian Society of Notaries 904 P. 80) and the appointment is evidenced by a document known as a ‘faculty’ issued by the Master of the Faculties.

In South Australia and Western Australia the law relating to notaries has been dealt with by Statute.

The Public Notaries Act (SA)(1) provides for the appointment of notaries by the Supreme Court and persons appointed receive a certificate under the Seal of the Court. By section 2 no person may practice as a Notary Public within South Australia who has not been appointed a Notary Public in pursuance of the Act. This Act is in force in the Northern Territory.

Notaries in Western Australia are appointed under the Public Notaries Act 902 (WA) by the Supreme Court and receive a certificate of their appointment under the seal of the Court. No person not so appointed may practice as a Notary.

I am therefore of opinion that in these two States and in the Northern Territory the position is the same as in the other States and the signature to an international telegram can be verified or attested only by a Notary Public.

The Department may be concerned to know how, in case of doubt, it can ascertain whether any person purporting to attest or verify the signature to an international telegram is a Notary or not, and in this connection I point out that when a notary attests a document he usually affixes his seal of office thereto, although this is not legally necessary to give effect to the attestation (In re Hannah Sutherland, 90 V.L.R. 8).

It would therefore be reasonable for the Department to request a notary to affix his seal to a telegram the signature to which was verified by him, but if he refused he could not be compelled to do so.

In such a case he could be asked to produce the faculty or certificate of his appointment.

It may be mentioned that the Solicitors Bill at present before the South Australian Parliament provides that all solicitors heretofore or hereafter admitted as such (in that State) shall automatically become notaries as well, and assuming this provision ultimately becomes law, there will be a large number of notaries in South Australia not provided with seals of office and not possessing certificates of their appointment. If they wish to rely on their power to attest a telegram without affixing their seal the Department will have to satisfy itself, by inquiry from the Master of the Supreme Court, whether the person is a Solicitor.

[Vol. 27, p. 1]

(1) Act No. 4 of 859 (SA).