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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-09-20 Daily Xml
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Notaries Public Bill

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I asked some questions of the minister in the second reading which I understand he is going to address at clause 1.

The Hon. P. MALINAUSKAS: I thank the opposition for its indication of support for this bill. The Hon. Mr McLachlan asked a few questions about the bill during his second reading contribution which I will now deal with. Firstly, he asked whether the government has been made aware of any instances where currently practising notaries public did not maintain an acceptable level of professional practice. In discussions leading to the development of this bill, the Notaries' Society of South Australia raised its concern with potentially unethical practices engaged in by a limited number of South Australian notaries.

The society provided one example of a notary behaving unethically which involved the notary executing a foreign-language power of attorney for a man who was under an order of the Guardianship Board. The man's guardian was unaware of this occurring and the notary failed to ask the man to read the foreign-language document which would have ensured that he was aware of the content and nature of the document.

There have been past instances of notaries being struck off the roll of notaries. Since the role commenced in 1924, a total of 15 people have been struck off. The most recent strike off occurred in June 2014, with the next most recent in 2001. The honourable member also asked whether any concerns had been raised about the standards of applicants in the past. The 2003 judgement in Bos, an application to the Supreme Court for admission as a notary public, was instructive in the development of this bill.

In his judgement, His Honour Justice Debelle expressed concerns about the past admissions standards as follows:

Section 91 [of the Legal Practitioners Act] is silent as to the practice to be adopted when a person seeks to be admitted as a public notary and the principles to be applied. I believe that the practices and standards in the past have been inadequate. There is a real question whether the court has been sufficiently rigorous in the principles it has applied.

Justice Debelle's judgement in Bos led to changes to the Supreme Court Rules relating to procedures for applicants for admission as a notary. His Honour also said in Bos that:

…as a general rule, a person applying to be a notary should be a legal practitioner of some years' standing and experience.

Finally, Mr McLachlan asked about the justification for the difference in the application fee for admission as a notary as opposed to a legal practitioner. Applicants for admission as a notary currently pay the full Supreme Court civil lodgement fee, which is approximately $2,000, whereas legal practitioners pay a reduced admission fee of under $600. However, it should be noted that the legal practitioners, once admitted, are also required to pay ongoing annual practising certificate renewal fees of around $600 per year. Notary admission under the bill is a once-off with no ongoing renewal fees. This is the same as is currently the case.

I now take the opportunity to foreshadow that the government will be moving a few technical amendments to the bill to remedy an issue that came to light after the debate in the other place. The amendments will ensure that transitioning legal practitioner notaries—that is, legal practitioners already admitted as notaries at the time of commencement of the bill—are automatically prevented from acting as a notary if suspended as a legal practitioner or on retiring as a legal practitioner.

Currently, the bill would preclude a suspended legal practitioner from acting as a notary during suspension but exempts all transitioning legal practitioner notaries from this automatic suspension. This was not intended. I thank all members for their contribution and I look forward to the bill being dealt with expeditiously through its remaining stages.

The Hon. A.L. McLACHLAN: I thank the minister for his responses and I think it was important to have that response on Hansard as it provides quite a substantial justification for the origination of this bill in its own right. The opposition has reviewed the technical amendments which will be moved by the minister. We have no objections to those amendments. I have no further questions for the minister and I indicate that the Liberal opposition will support the passage of the bill through the further stages.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 3, line 2 [clause 3(2)]— After 'interstate legal practitioner' insert:

(but a person is not so entitled during any period in which the person's right to practise is under suspension)

This amendment is the first of three amendments being moved by the government to ensure that transitioning legal practitioner notaries are automatically prevented from acting as a notary if suspended as a legal practitioner or on retiring as a legal practitioner. Currently, clause 11 of the bill has the effect of automatically suspending a notary if the person is suspended as a legal practitioner or disentitling the person from acting as a notary if he or she retires as a legal practitioner.

However, existing clause 11(2) contains an exception to this that is designed to allow existing non-lawyer notaries to continue to act as a notary after commencement of the new act, that is, a grandfather provision. The problem is that the exception is drafted so widely so as to exempt any notary who was admitted prior to the commencement of the new act. This would mean that any current legal practitioner notary who retired or was suspended as a legal practitioner after commencement of the new act could continue to act as a notary unless a separate application is made to the Supreme Court to suspend him or her as a notary.

This is undesirable because the notary would not be covered under the Law Society's professional indemnity insurance scheme, whereas it is one of the objectives of the new act to ensure that all notaries are covered by this insurance. This amendment to clause 3 is consequential to the amendment to clause 10 and makes it clear that a suspended legal practitioner is not entitled to practise law, nor therefore act as a notary under this bill.

Amendment carried; clause as amended passed.

Clauses 4 to 9 passed.

Clause 10.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 5, after line 37—Insert:

(2) The name of a legal practitioner who is admitted and enrolled as a notary public under this Act is, by force of this section, taken to be removed from the roll of notaries public for any period during which the legal practitioner is not entitled to practise the profession of the law in this State.

This amendment will explicitly provide that a notary is taken to be removed from the roll of notaries for any period that the person is not entitled to practise law; for example, on being suspended or retiring as a legal practitioner. The amendment also ensures that this applies equally to transitioning legal practitioner notaries who were admitted prior to the commencement of the new act.

Amendment carried; clause as amended passed.

Clause 11.

The Hon. P. MALINAUSKAS: I move:

Amendment No 3 [Police–1]—

Page 5 line 38 to page 6 line 6— Delete the clause and substitute:

11—Person acting as notary public contrary to Act

If a person acts as a notary public without being admitted and enrolled as a notary public under this Act, the person is guilty of an offence.

Maximum penalty: $50,000.

This amendment is consequential to Amendment No. 2. The insertion of new clause 10(2) allows the offending grandfather provision in clause 11 to be deleted by this amendment. The remaining schedule 1, clause 6 transitional provision will then operate on its own to allow existing non-lawyer notaries to continue acting as notaries after commencement of the new act.

The PRESIDENT: I will put the question in the positive: that clause 11 as proposed to be struck out by the Minister for Police stand as printed.

Amendment carried; clause as amended passed.

Clause 12 passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:24): I move:

That the bill be now read a third time.

Bill read a third time and passed.

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