Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter Eight - The Position in Other Australian Jurisdictions

8.1

All jurisdictions other than Victoria, Queensland and the Northern Territory have legislation governing the appointment and control of notaries. The Australian Capital Territory, Western Australia, South Australia, Tasmania and New South Wales each have specific Acts of Parliament which deal with notaries. In New South Wales and Western Australia, the Acts are the Public Notaries Act 1985[244] and 1979[245] respectively. In the Australian Capital Territory and Tasmania, the relevant Acts are the Notaries Public Act 1984[246] and 1990[247] respectively. South Australia deals with notaries in Part 7 of the Legal Profession Practice Act 1981.

8.2

An examination of these legislative models is useful. Submissions to the Committee referred to these Acts as possible models for reform in Victoria. A summary in the form of Appendix C best illustrates the position of the other States. There is a high degree of uniformity between the States in terms of the requirements imposed.

8.3

From the evidence presented to the Committee at the Public Hearing and an examination of the other States legislation, it is apparent that the issues which need to be considered in addressing any reforms in Victoria are those which are detailed below. How the other States/Territories have dealt with these matters is a relevant consideration for the Committee in reaching any recommendations it may make.

The issues raised in relation to the practice of notaries in other jurisdictions are:-

Only South Australia permits the appointment of non lawyers as notaries.[248]. All other jurisdictions require the applicant to be a qualified lawyer, of good fame and character and competent to act as a notary.[249] In Western Australia and Tasmania a requirement is imposed that there be a public need for a notary in the district where the applicant practises.[250] An applicant in New South Wales must present evidence of the public interest to be served by the appointment of the notary to the Court.[251]

Western Australia imposes a practice requirement length of three years. If the period of practice is less than three years, the applicant must have practised as a notary elsewhere for seven years.[252] NSW and Tasmania impose a minimum requirement of five years practice[253], whilst the ACT only requires that the applicant hold a current unrestricted practising certificate.[254]

8.5

The NSW Act has been suggested as an appropriate model for reform in Victoria but only for general guidance.[255] It was also suggested that: -

"The most appropriate system for Victoria is the Supreme Court to have discretion to appoint any legal practitioner as a notary irrespective of that practitioners years of practice."[256]

Rule 82.5 of Part 82 of the Supreme Court Rules (NSW) incorporates an extensive number of matters that must be included in an application:-

(a) certificate of admission as a barrister, as a solicitor or as a legal practitioner;
(b) whether or not the applicant is or has ever been suspended from practice as a barrister, as a solicitor or as a legal practitioner;
(b1) whether or not the applicant is or has ever been found guilty of professional misconduct as a barrister, as a solicitor or as a legal practitioner;
(c) whether or not the applicant is the holder of a current practising certificate issued under Part 3 of the Legal Profession Practice Act 1987;
(d) whether or not the applicant has been reprimanded or suspended from practice as a notary outside the State;
(e) whether or not the name of the applicant has been removed from any roll or register of public notaries outside the State;
(f) certificates of two practitioners of ten years standing not related to the applicant that the applicant is of good fame and character and is competent to practise as a notary;
(g) details of professional experience relevant to the application;
(h) details of academic attainment that is relevant to the application;

(i) evidence showing that the applicant has completed a course for notaries conducted by the College of Law;
(ii) an undertaking to the Court that, if the applicant is appointed as a notary, the applicant will, within a specified time after appointment, complete such a course; or
(iii) an affidavit showing why the applicant should not be required to complete such a course; and

(j) evidence of the public interest to be served by the appointment of the applicant as a notary.

The Committee notes that the NSW Attorney General has circulated a Discussion Paper regarding proposals for reform of public notaries.[257] Any recommendations made as a result of this discussion paper may need to be considered in Victoria.

8.6

There is a high degree of uniformity in the requirements imposed by the various legislatures which govern the appointment of a notary. There are however some issues that the Committee considers should be examined by reference to interstate legislation.

All jurisdictions provide that appointment is by the Supreme Court or the Full Court of the Supreme Court.[258] In NSW, the applicant must serve a copy of the application on the Notaries Society of NSW, publish a notice of intention to apply in the Gazette and in a prescribed newspaper and serve a copy of the same on the relevant professional body.[259]

8.8

In the ACT, the applicant must serve a copy of the application on the Attorney General, the Law Society and also publish a notice of the making of the application in a daily newspaper.[260]

8.9

All jurisdictions provide an avenue for interested parties to object to the application and (except in S.A.) for a notary to be disciplined in the form of suspension or struck off the notary register.[261] In cases where the notary is struck off or is no longer on the solicitors' or barristers' roll, he or she is struck off or removed from the notary's roll.

8.10 ISSUE 3: The role of the Attorney General, and other interested parties in objecting to an application

In NSW, the Supreme Court rules provide that the applicant must advertise and notify the Society of Notaries of NSW of the application.[262] The Society may object to the application. The Act requires notification to be made to the Attorney General and the relevant Law Society. The Attorney General or any other person may object. Notification is also required under the Tasmanian Act.[263] In Western Australia the Attorney General is given standing to intervene in the proceedings.[264] Under the Western Australian legislation the Attorney General may consult any body of notaries in that State.[265] The ACT legislation also provides for the Attorney General or any other person to object to the appointment.[266]

8.11 ISSUE 4: The requirement for a course of training

Submissions made to the Committee generally supported the concept of some form of training for those who intend to become notaries.[267] NSW is the only jurisdiction to require applicants to undertake formal instruction.[268] However, it was submitted to the Committee by the Honourable K.T. Griffin MP, Attorney-General of South Australia, that the Law Society of South Australia considers the level of knowledge of some notaries is inadequate. It was further submitted that the Supreme Court of South Australia will appoint an applicant if the Court receives an assurance that the applicant has read Brooke's Notary, Halsbury's Laws of England on Notaries Public and the Australian Encyclopedia of Forms and Precedents.[269]

The notary's position within the English legal system is different from that of a Victorian notary. An English notary, of whatever class, is still appointed by the Master of Faculties. There are three types of notaries in England. First, scrivener notaries who practise only in the City of London must undertake a five year apprenticeship to a practising notary. They must also undergo a number of examinations. Secondly, qualified solicitors may practise outside the City but must pass an examination in notarial practice set by the Master of Faculties. Thirdly, applicants who are not solicitors must satisfy the Master that they have an adequate academic or practical grounding in law and pass various examinations.[270]

8.13

The power of appointment is derived from the legislation. Notaries in England and Wales are appointed through the Court of Faculties by virtue of the Courts and Legal Services Act 1990. The Master of the Faculties retains the power under this Act to make orders and rules of procedure for notaries. In order to be appointed as a notary, an applicant must provide a certificate of fitness given by a notary public and a certificate of good character given by an independent person who has known the applicant for not less than three years.[271]

The Committee has had the opportunity to examine the legislative models of the relevant States and Territories and use the best provisions for its own legislation. However, after examining the models, the Committee is not of the view that any one model should be followed slavishly. The NSW model stands out because of the matters articulated in Rule 82 of the Supreme Court Rules of NSW. This has the advantage of informing the applicant of the matters that must be satisfied. However, it is restrictive and possibly inflexible and the Committee refers to its earlier comments in paragraph 8.5. The Committee considers that the better view is to include in the legislation the fundamental matters discussed in the next chapter and to leave the making of the rules to the Supreme Court.

8.15

The Committee is of the view that the appointment of notaries public is an area that could be considered for a national scheme of legislation. As has been outlined, the criteria for appointment in the States which have enacted legislation are very similar. The functions and powers of notaries are substantially the same across jurisdictions. The Committee considers that model legislation would provide certainty and convenience to notaries and members of the public.

RECOMMENDATION 33

The Committee recommends that the appointment of public notaries be considered for a national scheme of legislation. The criteria for appointment in States which have enacted legislation are very similar. The functions and powers of notaries are substantially the same across jurisdictions. The Committee considers that model legislation would provide certainty and convenience to notaries and members of the public.

Last update 19/8/99 ©Parliament of Victoria