5 Jul 2016
Notaries Public Bill
Adjourned debate on second reading.
(Continued from 9 June 2016.)
The Hon. A.L. McLACHLAN ( 17:51 ): I rise to speak to the Notaries Public Bill 2016. The Liberal Party will be supporting the second reading of the bill, and I speak on behalf of Liberal members in the chamber. This bill reforms and codifies the laws that govern the administration and qualification of notaries, regulates their practice and makes related consequential amendments to the Legal Practitioners Act 1981. It may be of interest to the honourable members of the chamber that South Australia remains the only state without legislation that regulates the appointment and duties of notaries public.
A notary public is a lawyer who holds a unique public office of trust and fidelity and has recognised power and authority to perform certain functions. In South Australia, notaries are appointed by the Supreme Court. While the functions of a notary are currently not defined by statute or instrument, the foundation of their duties developed over time as a result of English case law and custom. An apt description appeared in an article in the Law Society Bulletin, titled ‘An ancient office: why the role of the notary public should be reviewed’, by Roy Hasda, a notary public from the firm Belperio Clark. He writes:
Historically, Notaries were the recorders of facts, often the only persons able to read or write and making them responsible for recording births, marriages, deaths and business activities.
He goes on to say:
Notaries throughout the world vary slightly. In Eur ope they deal with all things non-litigious with formality, gravitas and a charging structure reflecting that. In the USA a Notary is in most shopping malls and pays an annual license to be able to operate. In the UK and Australia a Notary is qualified for life and provides services somewhere between the two.
His article also says:
Traditionally, documents certi fied by notaries are sealed wit h the Notary’s seal and recorded in a register called a ‘protocol’. These documents are known as ‘notarial acts’ and significant weight is given by Courts of Law and authorities internationally to [these] notarial acts. There is a very heavy onus of care cast upon a notary to be satisfied that any notarial act is in order.
The common functions performed by notaries in South Australia include:
•authenticating official government and personal documents and information for use in a foreign country;
•establishing and verifying the identity of a person seeking notarial services by a photo identification document such as a passport;
•the drawing up of shipping protests and other formal papers relating to the voyage of ships, their navigation and the carriage of cargo; and
•certifying true copies of documents for use in foreign countries.
It has been argued that the modern-day role of the notary has become more important with the increase in international trade and the global movement of people. The government asserts that the bill has been drafted to accommodate this to ensure a high standard of practice for notaries public is maintained.
The bill introduces various rules and regulations to govern the accepted practice for notaries. For example, the bill requires that only legal practitioners who hold a current practising certificate and have been admitted for at least five years can become a notary public. It ensures that, if a notary public ceases to hold a current practising certificate, they will no longer be able to practise as a notary, and provides the Supreme Court with power to suspend someone from practising as a notary public. I note the bill contains transitional provisions which will permit those people already admitted as a notary public to remain on the roll.
The government submits that, because the bill will ensure that all notaries are suitably qualified, properly insured and subject to regulated standards of professional practice, it will ensure consumers receive a high quality of professional service. I have been advised that the Notaries’ Society of South Australia supports the bill. Likewise, I understand the Law Society has seen a draft version of the bill and is supportive.
I just have a couple of questions which I will put to the minister and ask that the responses to the questions be incorporated into his summing up of the second reading debate. Has the government been made aware of instances where the currently practising notaries public did not maintain an acceptable level of professional practice? Have any concerns been raised with the government or regulatory authority (currently the Supreme Court) with standards of applicants in the past?
An application to become a notary public will be made to the Supreme Court and will be very expensive at well over $2,000 whereas, for a general legal practitioner, it is substantially less. What is the justification for this expensive application fee and the rationale for such a difference in the fee for a notary public as compared to an ordinary legal practitioner? With those comments, I conclude my remarks and commend the second reading of the bill.
Debate adjourned on motion of Hon. T.J. Stephens .
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