Notaries Public Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The eminent authority on notaries public Peter Zablud defines a notary as 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, 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.

Notarial acts and certificates are recognised in the countries of the British Commonwealth and some civil law countries without the need for further certification from the Department of Foreign Affairs and Trade or foreign diplomatic missions. However, in addition to requiring documents to be notarised, many countries also require a notary's authority, signature and seal to be officially verified or 'legalised' before notarised documents can be used. Legalisation is performed by the Department of Foreign Affairs and Trade or by the consular officers of the country in which a notarised document is to be produced. Notaries public produce almost 50 per cent of all documents presented to the Department of Foreign Affairs and Trade for legalisation.

With the continuing emphasis on international business in this State, it is expected that the role of notaries public in commercial contexts will grow in importance for South Australia. In order to maintain a high standard of notarial practice and ensure that notaries public are appropriately qualified this Act will reform the laws governing the admission and qualifications of notaries.

The new Act will:

restrict the office of notary public to legal practitioners of at least five years standing, who hold a current practising certificate;

where a notary public ceases to hold a legal practising certificate authorising them to practise law, they will not be entitled to practise as a notary;

The Legal Practitioners Education and Admission Council in consultation with the Notaries' Public Society will make the rules concerning the qualifications for admission, and the requirements for post-admission education and training;

provide the Supreme Court with the power, should it think fit, to suspend a person from practising as a notary public (and also allow for the lifting of such a suspension); and

include a transitional provision allowing those persons admitted to the office of notary public prior to the commencement of the new Act to continue practising as a notary as if they were admitted as such under the new Act (providing also that such persons are exempt from the requirement to maintain a current legal practitioners practising certificate).

To restrict the field of applicants to legal practitioners will service the public interest and ensure that consumers receive a high quality of professional service. Under such a restriction public notaries, as legal practitioners, would be subject to normal legal practice discipline in accordance with the Legal Practitioners Act 1981.

Although restricting appointment of notaries to legal practitioners would limit the number of providers in the market and may be viewed as anti-competitive, it would ensure that all notaries are suitably qualified (having a strong understanding of the law), be properly insured (under the Law Society's professional standards scheme) and subject to regulated standards of professional conduct (under the Legal Practitioners Act 1981, for conduct occurring in connection with the practise of law). The public benefits of such a restriction outweigh the costs that may be involved in its implementation.

I commend the Bill to Members.

Explanation of Clauses

1—Short title

This clause provides the short title of the measure as the Notaries Public Act 2016.

2—Commencement

This clause provides for commencement on a day to be fixed by proclamation.

3—Interpretation

This clause provides definitions for the purposes of the measure.

4—Functions of LPEAC

This clause gives functions to the Legal Practitioners Education and Admission Council for the purposes of the measure. These functions are—

(a) to make rules prescribing the qualifications for admission of a person as a notary public and rules prescribing the requirements for post-admission education, training or experience for a person admitted as a notary public and to monitor compliance with those rules; and

(b) to keep the effectiveness of legal education and training courses and post-admission experience under review so far as is relevant to qualifications for practice as a notary public.

Rules made prescribing the requirements for post-admission education, training or experience for a person admitted as a notary public may prescribe requirements in relation to the issue or renewal of practising certificates under the Legal Practitioners Act 1981 subject to conditions.

5—Appointment of notaries public

This clause provides that a person may apply to the Supreme Court to be admitted and enrolled as a notary public of the Supreme Court if the person is entitled to practise the profession of the law in this State and has been admitted as a legal practitioner (in this State or any other State) for at least 5 years.

A person is entitled to be admitted and enrolled as a notary public of the Supreme Court if the person satisfies the Court that—

(a) the person's entitlement to practise is not subject to any limitation, restriction or other condition inconsistent with the carrying out of the functions of a notary public; and

(b )the person has complied with the rules relating to the qualifications for admission of a person as a notary public made by LPEAC or should otherwise be exempted from compliance with those rules; and

(c) the person is a fit and proper person to practise as a notary public.

A person admitted as a notary public is to make an oath in the prescribed form.

6—Powers and authorities of notary public

This clause provides that a person admitted as a notary public has all the powers and authorities (including the power to take affidavits) exercisable by law or custom by notaries public.

7—Roll of notaries public

This clause requires the Registrar of the Supreme Court to cause a roll to be kept of all notaries public admitted under the measure and, on application by a notary public, to grant a certificate in the prescribed form certifying that the person is a notary public duly authorised and admitted to practise as such in this State.

8—Investigations, inquiries and disciplinary proceedings

This clause provides that conduct of a notary public in performing the functions of a notary public is taken, for the purposes of investigations, inquiries and disciplinary proceedings under the Legal Practitioners Act 1981, to be conduct occurring in connection with the practice of law and also to be professional conduct of a legal practitioner.

9—Power of Court to suspend or remove name from roll

This clause provides that the Supreme Court may, on its own initiative or on application, suspend or remove the name of a notary public from the roll of notaries public if the Court considers that a ground exists for so doing. Suspension or removal from the roll results in a person ceasing to be admitted and enrolled as a notary public as specified.

10—Automatic removal of name from roll

This clause provides for automatic removal of the name of a legal practitioner from the roll of notaries public if the person's name is removed from the roll of legal practitioners maintained under the Legal Practitioners Act 1981 or the relevant interstate equivalent roll. Removal results in the person ceasing to be enrolled as a notary public.

11—Person acting as notary public contrary to this Act

This clause provides an offence of acting as a notary public without being admitted as a notary public and also being entitled to practise the profession of the law in this State. There is a transitional provision that allows a person to practice as a notary public without being entitled to practise the profession of the law in this State if the person was admitted as a public notary under the Legal Practitioners Act 1981 before the commencement of this clause.

12—Regulations

This clause provides that the Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, the measure.

Schedule 1—Related amendments and transitional provision

Part 1—Preliminary

1—Amendment provisions

This clause provides for amendment of an Act so specified in this Schedule.

Part 2—Amendment of Legal Practitioners Act 1981

2—Amendment of section 14C—Functions of LPEAC

This clause amends section 14C of the Legal Practitioners Act 1981 to broaden the functions of LPEAC under that Act to include functions assigned under any other Act.

3—Amendment of section 17A—Conditions as to training etc

This clause amends section 17A of the Legal Practitioners Act 1981 so that rules made in relation to post-admission training for notaries public may effect the issue or renewal of practising certificates subject to conditions under section 17A.

4—Amendment of section 21—Entitlement to practise

This clause is consequential.

5—Repeal of Part 7

This clause repeals Part 7 of the Legal Practitioners Act 1981 which provides for the admission and enrolment of public notaries.

Part 3—Transitional provision

6—Continuation of roll and persons admitted to the roll

This clause provides that the roll of all public notaries kept by the Registrar of the Supreme Court under Part 7 of the Legal Practitioners Act 1981 immediately before the commencement of this measure continues after that commencement as the roll of notaries public required to be kept by the Registrar of the Supreme Court under clause 7 of the measure and a person listed on that roll is taken to be admitted as enrolled as a notary public under the measure.

Debate adjourned on motion of Hon. D.W. Ridgway.

At 16:51 the council adjourned until Tuesday 21 June 2016 at 14:15.