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Public Notaries Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The office of public notary can be traced back to Roman times.
Today, notaries certify as to the legal effect of documents for international
purposes--frequently for use in foreign courts. The essential function of
notarial acts is to provide an international guarantee of the authenticity and
legality of those documents. The work of public notaries ranges from
determining and applying evidentiary procedures in order to notarise a
document to preparing documents of legal force. Typical services a notary
would perform today include attesting declarations or affidavits, attesting
execution of documents and preparation of ships' protests. In many countries,
properly executed notarial acts are accepted as conclusive evidence of the
facts witnessed. With the continuing emphasis on international trade, it is
expected that the role of notaries in a commercial context will grow in
importance for Victoria.
In an archaic system that dates back to the 1530s when King Henry VIII
broke away from Rome, Victorian notaries are still appointed by the
Archbishop of Canterbury in England. There is no governing legislation in
Victoria.
A current criterion for appointment is also contrary to National Competition
Policy guidelines, in that it requires an applicant to demonstrate a geographic
need for notarial services.
In 1996 the Scrutiny of Acts and Regulations Committee (SARC) was asked
to review the role and appointment of public notaries. SARC's report
recommended the enactment of Victorian legislation dealing with the
appointment of notaries.
In summary SARC recommended that:
· only qualified lawyers should be eligible for appointment as notaries;
· applicants should have at least 5 years legal experience;
541180 BILL LA CIRCULATION 18/5/2001
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· the numbers of notaries should not be limited by reference to geography
or population;
· appointments should be made by the Supreme Court; and
· applicants should be required to undergo an approved course of training.
The Bill provides for a simple process for appointment of public notaries by
the Supreme Court constituted by the Chief Justice. The Bill relies on the
infrastructure already in place to process applications by lawyers for
admission. The Council of Legal Education approves the course of study that
lawyers must complete, and the Board of Examiners processes proposed
applications for appointment and gives a certificate as to eligibility.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the proposed Act.
Clause 2 provides for the commencement of the proposed Act by
proclamation.
Sub-clause (2) provides that if the proposed Act has not been
proclaimed to commence by 31 July 2002, it will come into
operation on that day. Commencement will await the making of
rules by the Supreme Court.
Clause 3 defines certain words and expressions used in the proposed Act.
PART 2--APPOINTMENT OF PUBLIC NOTARIES
Clause 4 sets out the criteria for appointment as a public notary.
Clause 5 provides that a person who wants to apply to the Supreme Court
for appointment as a public notary must first apply to the Board
of Examiners for a certificate of eligibility. That application must
be in a prescribed form and accompanied by evidence of the
criteria set out in clause 4, and an application fee. The Board of
Examiners may make further enquiries and may require an
applicant to supply further evidence or to appear in person before
it. If the Board forms the view that a person meets the criteria set
out in clause 4 it must issue a certificate of eligibility. Clause 7
provides that a person may appeal to the Supreme Court
constituted by the Chief Justice against a decision of the Board of
Examiners.
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Sub-clause (7) provides that the Board of Examiners may, in a
particular case, dispense with or vary the requirement that an
applicant have held for 5 years a practising certificate entitling
them to practise as a principal. The dispensation or variation can
be made subject to conditions. The Board must form the view
that the dispensation or variation does not or will not materially
diminish the value of the requirement.
Clause 6 provides that a person who has obtained a certificate of eligibility
from the Board of Examiners may apply within 30 days to the
Supreme Court constituted by the Chief Justice for appointment
as a public notary. The application is to be in accordance with
rules made by the Supreme Court. The Chief Justice may appoint
a person who has filed the certificate of the Board of Examiners
and paid the prescribed fee.
Clause 7 provides that a person may appeal to the Supreme Court
constituted by the Chief Justice against a decision of the Board of
Examiners in respect of an application for a certificate of
eligibility. Such an appeal must be made within 30 days of notice
of the Board of Examiner's decision and will be dealt with by the
Supreme Court as a re-hearing.
Clause 8 provides for a roll of public notaries to be maintained by the
Supreme Court. All persons appointed as public notaries are
required to sign the roll and their appointment takes effect from
the time of that signing.
Sub-clause (5) provides that the Supreme Court may remove the
name of a public notary from the roll at the request of the public
notary.
Sub-clause (6) provides that if a person is no longer on the roll of
legal practitioners in Victoria, that person's name must be
removed from the roll of public notaries.
Sub-clause (7) requires the Prothonotary of the Supreme Court to
forward details of each person appointed as a public notary to the
Legal Practice Board. The Legal Practice Board maintains a
register of legal practitioners under section 9 of the Legal
Practice Act 1996. By amendments made to that section by
clause 13, the Board will be required to include the date of
appointment as a public notary on that register.
PART 3--GENERAL
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Clause 9 provides that a person who is not named on the roll of public
notaries and who does not hold a current practising certificate
entitling them to practise as a principal, commits an offence if
they hold themselves out as a public notary or if they practise as
a public notary.
Sub-clause (2) provides that a person who is deemed to be a
public notary under clause 12 does not commit an offence.
Clause 12 provides that a person who held office as and practised
as a public notary immediately prior to the commencement of the
proposed Act is deemed to have been appointed under the
proposed Act for a period of 6 months or until signing the roll of
public notaries within that period.
Clause 10 declares, for the avoidance of doubt, that a public notary is to be
recognised as having the same powers, authorities, duties and
functions as a public notary or notary public had prior to the
commencement of the proposed Act.
Paragraph (b) declares that the proposed Act does not affect the
validity or operation within Victoria of a notarial Act duly done
outside Victoria.
Clause 11 provides for the making of regulations in relation to matters
arising under the proposed Act.
PART 4--SAVINGS, CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS
Clause 12 is a transitional provision that deems a person who was a validly
appointed, practising notary immediately prior to the
commencement date, to be a public notary appointed under the
proposed Act. That deeming lasts for 6 months or until the
person signs the roll of public notaries within that 6 month
period. Such a person will be entitled to sign the roll within
6 months after commencement of the proposed Act without
having to make an application under the proposed Act.
Sub-clause (3) generally preserves the validity of notarial activity
that occurred prior to the commencement of the proposed Act.
Clause 13 Sub-clause (1) sets out a number of consequential amendments to
the Legal Practice Act 1996 relating to the keeping of the
register of legal practitioners. Under clause 8(7) the Prothonotary
will provide details to the Legal Practice Board of persons who
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have been appointed as public notaries. The Board will be
required to note on the register each legal practitioner who is a
public notary and the date of their appointment. Members of the
public can search the register to determine if a person is eligible
to practise as a public notary. In addition, the Council of Legal
Education will be given the power to make rules in relation to
approving courses of study required for appointment as a public
notary.
Sub-clause (2) contains consequential amendments to the
Evidence Act 1958 that change references to "notary public" to
"public notary".
Sub-clause (3) contains a consequential amendment to the
Instruments Act 1958 that changes a reference to "notary
public" to "public notary".
Clause 14 contains a statute law revision amendment of the Legal Practice
Act 1996. It changes a reference to "articles of association" in
section 107(2)(c)(ii) to "constitution". This correction relates to
incorporated legal practitioners and brings the Legal Practice
Act 1996 into accordance with amendments made to the
Corporations Law.
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