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

Chapter Nine - Issues Identified with the Present method of appointing
Notaries and Recommendations for Reform

9.1

This chapter analyses the substance of the oral and written submissions. It examines the issues and any proposals for reform submitted to the Committee.

9.2

Significant contributions were made by the Society, Mr Emilios Kyrou of Mallesons Stephen Jaques and Mr Adam Trumble. The Society, Mr Kyrou and Mr Trumble made written submissions and gave evidence at the Public Hearing. Oral evidence was also given by Mr Peter Zablud, solicitor and notary. There was common ground on a number of issues. However there were also quite divergent views on the reform process.

9.3 ISSUE 1: Is the appointment of a Victorian notary by a foreign Court incompatible with the status of Victoria as a sovereign state?

An appropriate starting point for this discussion is the method of appointment of notaries.

All the parties who gave evidence concerning the method of appointment conceded that appointment of notaries under the present system is outmoded and archaic.[272] The Society conceded it was appropriate to revisit the mode of appointment:-

"It is true that the formal appointment is made by the English Court of Faculties and the document of appointment is sealed by the Archbishop of Canterbury, exercising an ancient prerogative which devolved on him at the time of King Henry VIII. This procedure has lent dignity to the office of notaries here and given stature. It may well be that with the change in the attitudes of the Australian community this method of appointment may have become outmoded, archaic and outlived its usefulness. The Society recognises the need to change with times and finds no objection to the role of appointing notaries being assumed by the Supreme Court of this State with the document of appointment being signed by its Chief Justice.[273]

9.4

Mr Kyrou in his submission made the following point:-

"The appointment of a person to perform a public function in Victoria by a foreign body, namely the Court of Faculties, is incompatible with Australia's status as an independent nation". [274]

9.5

In the Committee's view, there is common ground between the Society and the other parties as to the need to change the current method of appointment. The level of agreement between the parties on this point indicates to the Committee that the formal appointment of a Victorian notary by the English Court of Faculties is no longer appropriate or necessary. It is time-consuming, expensive and not in keeping with the current view of Australia as an independent nation and Victoria as a sovereign state. In Fitzpatrick's case,[275] reference was made to the second reading speech which accompanied the passage of the NSW Public Notaries Act 1985.

9.6

Powell J, quoted the then NSW Attorney-General who said:-

"It is anomalous that notaries operating in New South Wales should be subject to appointment and regulation by a Court outside the jurisdiction of this State. Such a system makes it extremely difficult for the present needs of the community to be met."[276]

9.7

The Committee considers that these sentiments are equally applicable in Victoria.

9.8

In the event that the historical form of appointment is abandoned, the question then becomes how is appointment to be made and by whom? The Supreme Court was suggested as the appropriate body to appoint notaries. In Australian jurisdictions where legislation covers the appointment of notaries, the Supreme Court is the body that makes the appointment. The Committee considers that this ought to be the course adopted in Victoria both for reasons of transparency and accountability. Such a course will also keep Victoria in line with other jurisdictions.

9.9

Differences between the parties relate to the particular role of the Society with regard to recommendations for appointment. There were also significant differences of opinion as to the extent of the role to be played by the Supreme Court. Before turning to this issue however, the Committee believes it is appropriate to examine the role of the Society. Such an examination in the Committee's view, highlights the need for an independent body.

9.10 ISSUE 2: What is the current role of the Society? What should its future role be?

In the absence of legislation the Society has undertaken the task of governing notaries in Victoria. It has therefore played a pivotal role in notarial practice in Victoria. The issue for the Committee is the future role of the Society.

9.11

The Society is an unincorporated association composed of notaries in Victoria, all of whom are lawyers. In Fay's case these types of societies were described as being akin to trade unions with an interest in protecting its members.[277] In strictly legal terms, the Master of the Court of Faculties retains his discretion to appoint any applicant. In practical terms however he will only appoint an applicant with the support of the Society. This, in effect, leaves the Society in the position of de facto decision maker in relation to appointments. The Society's present practice is to support an application if the applicant satisfies the three criteria imposed by the Society.

9.12

The Society in its written and oral submissions defended its practice as being designed to uphold and maintain the international standing and credibility of Victorian notaries. The Society submitted:-

"There has been no legislation governing institutions of notaries in this State nor their appointment or conduct. Until now it has been left to the Society of Notaries through its Council to set the standards and make the appointments. The Council has decided when and where a notary should be appointed; it has set objective criteria and enforced its observance in the appointment of notaries. It has gone out of its way to be fair and impartial in its attitudes and to avoid being influenced by considerations of friendship, expediency or politics." [278]

9.13

The Society then set out its three criteria and went on to say:-

"Until now for over a century the Victorian system has functioned very well indeed. It has served the local as well as the international needs and satisfied the overseas requirements placed on Victorian notaries. There have been few complaints. Such complaints as there have been, have come from disgruntled individuals who have sought appointment as notaries but have not been able to met the objective criteria for such appointment."[279]

9.14

Mr Kyrou in his written submission to the Committee identified the following problems:-

* "The de facto decision-maker, the Society of Notaries of Victoria (the Society), is an unincorporated association which has never been made accountable for its decisions and whose records are not available for public scrutiny. This is contrary to modern notions of transparency and public accountability;

* The Society applies criteria of its own making which are not always referable to the historical origins or nature of the office of notary and do not satisfy the public interest;

* The current system has resulted over the years in very few notaries being appointed to service Victoria's growing population and geographic diversity;

* There is inherent conflict between the Society's public duties and its private function of representing the interests of its members. The Court of Faculties has said that notarial societies are in the nature of trade unions and their interest is on the side of limiting the number of notaries."[280]

9.15

Mr Kyrou also identified as a problem, the question as to whether decisions of the Council are subject to judicial review. In his written submission to the Committee Mr Kyrou indicated that reform was needed because:-

"The de facto decision-maker, the Society, is an unincorporated association which has never been made accountable for its decisions and whose records are not available for public scrutiny. This is contrary to modern notions of transparency and public accountability." [281]

9.16

This theme was expanded upon by Mr Kyrou and Ms Beaton-Wells: -

"It is understood that the Society takes the view that because it is a `private organisation' in the sense that it has not been created by statute or the prerogative, its decisions are not reviewable by the Courts. There is no direct authority on the matter. Another view, however, is that even though the Society is a private body, its decisions in relation to appointment of notaries are subject to judicial review because in making those decisions it exercises public duties or functions. This view is supported by cases both in England and Australia in which decisions of private organisations exercising public functions have been held to be reviewable." [282]

9.17

The Society does not directly address this issue in its submission. It states that:-

"There has been no legislation governing institutions of notaries in this state nor their appointment or conduct. Until now it has been left to the Society of Notaries through its Council to set the standards and make the appointments. The Council has decided when and where a notary should be appointed; it has set objective criteria and enforced its observance in the appointment of notaries." [283]

9.18

The Society, further indicated to the Committee that it lacked the power to discipline or remove notaries and that the power to do so rested in the English Court.[284]

9.19

In his oral evidence before the Committee, Mr Pentilla made the point:-

"It would be theoretically possible for an application to be made to the Court of Faculties to have a notary's faculty discontinued, but this has never happened...."[285]

9.20

Mr Garsa also said in relation to this point:-

"We had a problem with a notary some years ago. We received complaints and we were seeking ways and means to discipline him. However, we found that we probably did not have the power".[286]

9.21

The Committee considers that the answer to the question whether or not the Society is subject to review by a Victorian Court is unclear. The matter has never been tested. If the answer is that the Society is not open to review in Victoria, such a situation is out of keeping with the development of the Victorian legal system into a fully independent system where the last right of appeal rests with the High Court of Australia.

9.22

As a means of overcoming the problems that have been identified, the Committee recommends the appointment of notaries by the Supreme Court. The Committee considers that it is inappropriate for Victorian notaries to be appointed by an official of a foreign jurisdiction.

9.23

In coming to this view, the Committee has also considered the effect of the passage of the Australia Acts 1985[287] at both Commonwealth and State levels. The object of these Acts is to confirm the status of the Commonwealth of Australia and, by implication, the status of the States as independent legal entities from the United Kingdom. In light of these developments the Committee's view is that it is inappropriate for notaries in Victoria to be appointed by an English Court.

9.24

The Committee recommends that notaries be appointed by the Supreme Court. In the Committee's view such a form of appointment would provide open and accountable appointment procedures. It would also provide disciplinary procedures which the Society lacks.

RECOMMENDATION 31

The Committee recommends that legislation dealing with the appointment, qualifications and disciplinary procedures of notaries be enacted. Such legislation should include:-

(a) Only qualified barristers and solicitors of not less than five years standing from the date of admission to practise in any Australian jurisdiction to be eligible for appointment;

(b) Applicants to be of good fame and character;

(c) A requirement to show public benefit before appointment can be made;

(d) Appointments to be made by the Supreme Court of Victoria;

(e) Applicants be required to undergo an approved course of training;

(f) Other matters to include: -

• Existing notaries deemed to have been appointed under the new Act;
• Savings for prior notarial acts performed before the commencement of the new Act;
• Establish a register of notaries - existing notaries to seek registration within a set time;
• Provisions relating to offences, disciplinary procedures and the removal of a notary's name from the roll to be modelled on the NSW Act.

RECOMMENDATION 32

The Committee recommends that new Supreme Court Rules providing for appointment, disciplinary procedures and fees be made in relation to notaries.

9.25

This recommendation opens the door to a number of issues which need to be resolved. What should be the extent of the role of the Supreme Court? How should the expertise of the Society be best utilised? What criteria should the Supreme Court employ in determining appointment as a notary?

9.26 ISSUE 3: Role of the Supreme Court

The central issue raised is the role of the Supreme Court. Should there be a role for the Society if appointments are made by the Court? There was a marked difference in opinion on the issue of the role of the Society. The Society identified a role for itself in the appointment and supervision of notaries and intending notaries. The Society suggested that an applicant be appointed as a notary by the Court on its recommendation. In effect, such a role for the Society would leave the Supreme Court as a court of appeal from the Society's decision. Such a course would maintain an integral role for the Society in the administration of notaries.

9.27

In relation to appointment the Society said:-

"The Society recognises the need to change with times and finds no objection to the role of appointing notaries being assumed by the Supreme Court of this State with the document of appointment being signed by its Chief Justice. It is submitted that such appointments should be made on the recommendation of the Council of the Victorian Society of Notaries as someone has to be and it has been involved in the day to day administration of the practice of notaries. If there is to be the right of appeal from its decisions or scrutiny of its operations then the relevant powers should be vested in the Supreme Court."[288]

9.28

In relation to the discipline issue the Society made the following comment:-

"Currently there is no valid power in the Society of Notaries or its Council to discipline notaries or suspend them for misconduct or inability or unwillingness on the part of the notaries to carry out their duties. It seems that such powers are essential and if changes are made to the current common law practice of appointment selection and practice of notaries then the new legislation or rules governing notaries should invest the Council of the Society of Notaries with the relevant disciplinary and supervisory powers to do so. There should again be the right of appeal to the Supreme Court from the Council's decision."[289]

9.29

Mr Kyrou however suggested a more limited role for the Society which would take away their present power of de facto appointment and place the question of discipline with the Supreme Court. Mr Kyrou was forceful in his rejection of the Society's suggestion. In response to the suggestion that the Society make recommendations to the Supreme Court, he said:-

"I have the strongest possible view that that would be inappropriate because in my view the society, in its involvement in the appointment of notaries has been discredited."[290]

9.30

Mr Kyrou also expanded this view in a later written submission to the Committee:-

"We strongly object to the Society having any official or special role in the process of appointment of notaries. In our view, the Society has not demonstrated that its involvement to date in the process of appointment has served the public interest. It is, after all, `a trade union, and [its] interest is on the side of limiting the number of notaries': Fay v Society of Notaries for the State of Victoria [1909] P. 15 The Society should merely have the same right as any other member of the community to object to the appointment of any particular person as a notary or to draw to the attention of the Supreme Court any matters which may be relevant to the decision of the Court whether to appoint someone as a notary"."[291]

9.31

The interstate experience suggests a limited role for the Society. Only in NSW is the applicant required to notify the NSW Society of Notaries of the application. This is in line with the stricter requirements of the NSW legislation which are set out at paragraph 8.5. Other States do not provide any specific role for their local Societies, rather the Societies only have standing to object as an interested party. The Society in Victoria promoted the NSW legislation as an appropriate model[292], whereas Mr Kyrou favoured the more liberal provisions of the South Australian legislation where non lawyers could be appointed without any length of practice requirement.

9.32 Mr Kyrou submitted that:-

"...we believe that the most appropriate system for Victoria is for the Supreme Court to have a discretion to appoint any legal practitioner as a notary, irrespective of that practitioner's years of practice. This system will ensure there is flexibility, along the lines of the South Australian position. The Court will no doubt develop its own guidelines in exercising its discretion"."[293]

9.33

The Committee is of the view that the role of the Supreme Court is crucial in providing transparency and accountability in the appointment of notaries. These objectives can only be achieved if the Court itself is the appointor, rather than acting on a recommendation of the Society. This practice is consistent with the practice of other jurisdictions and the Committee believes it is the best model for Victoria. The Court itself should make the decision as to whether the appointment should be made on the basis of evidence presented to it. The role of the Society should be confined, as it is in the interstate jurisdictions, to that of an interested party with a right to present evidence to the Court of matters considered relevant.

RECOMMENDATION 34

The Committee recommends that appointment of notaries be made by application to the Supreme Court and that the Society of Notaries have standing to present matters to the Court as an interested party.

9.34

All of the Australian jurisdictions with notaries legislation have criteria which determine whether appointments should be made. The issues to consider are:- What is meant by public need? Should appointment be confined to legal practitioners? Should there be a course of training?

9.35 ISSUE 4: PUBLIC NEED - How is Public Need defined?

In Bailleau's case, the Master commented: -

"The question of the proper number of notaries for any particular place is always a difficult point to deal with. The first and controlling consideration must be the convenience of the public.........The first question here, therefore, is whether I am so completely satisfied that the number of notaries in this State is already adequate as to refuse the application on that ground. No general rule can be laid down, but each case must be judged by its own circumstances."[294]

9.36

The Committee considers that the Master in each case tested public convenience by reference to geographical figures. In both cases they considered the number of notaries in the context of the population of Melbourne at the time. The NSW case however cited the need to show some benefit to the public.

9.37

The Society itself appears to have adopted the geographical test of public need. The first of the three standards imposed by the Society upon intending applicants is that there be a demonstrated public need for the appointment of a notary public in the vicinity in which the applicant practises as a solicitor. At present there are 88 notaries in Victoria, 55 in the metropolitan area and 33 in provincial areas. The Society will not support an application to become a notary unless the Society is of the view that there is a public need for further notaries in that particular area.

9.38

Another aspect of the Society's argument in relation to "public need" is the need for notarial acts and seals to be readily accepted by the international community relying on them. The public need or public benefit in this case was advanced by limiting the number of notaries so as to ensure ease of identification.

9.39

In his oral evidence Mr Garsa put forward the view: -

"There cannot be an indefinite list because of the international implications in the recognition of the notary certification of documentation and so forth.......If you have too long a list, you lose control of the people practising as notaries. You get inquiries about whether such-and-such a document was certified by you. It becomes almost impossible to track down certifications. Also, that would throw an undue burden on the international organisation, with the expectation that it check long lists of seals and signatures. That is the only reason why the number of appointments as notaries has been kept within these limits. About 100 notaries for the state of Victoria would be the maximum number that could be checked circulated and controlled."[295]

9.40

While the Society has a somewhat narrow view of public need, Mr Kyrou has a different view about how "public need" should be interpreted. He made the comment in his written submission:-

"The correct starting point is the first and controlling consideration, namely the convenience of the public. If it would convenience the public for all solicitors to be appointed as notaries, all solicitors should be appointed as notaries. The impact of such a change on the volume of business for existing notaries is not a relevant consideration. At a time when fundamental reforms are being implemented not only in Victoria but nationally to enhance competition in our community, it is inappropriate to apply self serving notions of unfair competition for the purposes of protecting existing notaries."[296]

9.41

Mr Kyrou gave further evidence at the Public Hearing:-

"If the need is there in a particular area or for a particular group of people, there should be as many notaries as the circumstances require to satisfy that need. There should be no starting point that there is some ceiling or a maximum number of people to be appointed. If you adopted the position that anybody - a lawyer for example - were able to become a notary without a minimum number of years of practice, I would be surprised if there were an avalanche of applicants. In my view people would have reasons to apply, they would not apply to add additional qualifications to their name."[297]

9.42

The Committee considers Society's argument that the numbers should be limited by reference to geography and population is not persuasive. Similarly, the Society's argument in relation to the circulation of notarial signatures is not persuasive. The two cases on which the Society relies were decided in the early 1900's. The City of Melbourne today is vastly different from the City of Melbourne in that era. Even if reference is made to the demographics of the City of Melbourne in 1996 and the wider Victorian population, the current needs and requirements of the population are vastly different from those in the 1900's.

9.43

The Society submitted that notaries are specialists and that people will not hesitate to travel to specialists.[298] It uses the analogy of medical specialists. The Committee however is not convinced that this is an useful analogy. Notaries are in the business of providing legal services and there are numerous legal offices in each suburb. It appears anti-competitive to restrict notaries to one for each suburb or along similar lines.

9.44

Moreover, the Committee cannot ignore the ethnic diversity of Melbourne and the concentration of ethnic groups in Melbourne. In this context, the appointment of notaries on a strictly geographical basis is no longer appropriate. In the Committee's view, it is not acceptable to force consumers to travel away from their home to find another notary. Notarial practice is run as part of a business and to deny a notary the opportunity to market services to a client base is out of step with the economic climate and indeed does not serve the consumer.

9.45

In response to the second limb of the Society's argument, the Committee is not persuaded that an increase in the number of notaries would have the consequences envisaged by Mr Garsa. The Committee is mindful that Australia adopted the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents[299] on 11 July 1994 which became operative on 16 March 1995. As the Convention has only been operative in Australia for just over a year, its long term effect is at present difficult to measure, but the intention is to clearly streamline the certification procedure.

9.46

In addition, the Committee considers that in this age of worldwide communication (facsimile, internet etc.), the process of identification and authentication of notarial acts and seals is much less onerous than it used to be.

9.47

The Committee finds Mr Kyrou's submission to be more persuasive as it reflects the notion that the paramount consideration is convenience to the public. It is also is in line with the movement of the economy towards a freer competitive market. However, the Committee does not adopt the phrase of "public need" as it suggests that there must be a concrete need demonstrated before something can be done. Rather, the Committee recommends that one of the criteria that the Supreme Court consider when appointing notaries is that the applicant demonstrate "public benefit"; there will be a benefit to the public either at the time of the appointment or the appointment itself will be of benefit to the public in a more general sense.

9.48 ISSUE 5: APPOINTMENT - Who is eligible for appointment? Should there be a length of practice requirement or qualifying period prior to appointment? Does the applicant need to establish good fame and character?

The Supreme Court may need to turn its mind to other criteria:- Whether appointment should be confined to legal practitioners? Should there be a length of practice requirement or qualifying period prior to appointment? Does the applicant need to establish good fame and character?

9.49

In evidence to the Committee only one person submitted that appointment as a notary should be open to non lawyers.[300] Mr Trumble submitted that it was not in the public interest to confine notarial appointments to the exclusive province of lawyers. He referred to the Study of the Legal Profession March 1994 by the Trade Practices Commission:-

"All levels of government should adopt measures to open the supply of legal services to appropriately qualified non-lawyers to the maximum extent that is consistent with the public interest. There should be no necessary presumption that any area of legal work should be reserved to lawyers without scrutiny. Rather, all areas of legal work should be examined by an appropriate body to determine the areas, if any, where there are sound public interest reasons for continuing to reserve that work to qualified lawyers and those areas where it would be in the public interest to allow competition from non-lawyers."[301]

9.50

The Society and Mr Kyrou both supported the view that only lawyers should be appointed.[302] The difference between the views of the Society and Mr Kyrou centred on the need for a qualifying period before appointment.

9.51

The Society requires the applicant to have practised as a principal solicitor for at least ten years. The origin of this rule is not clear. The Society has not provided any explanation. It was suggested by the then Chairman in the Public Hearing that it was imposed in an earlier time when legal training was not as extensive as it is today.[303]

9.52

The Society moved away from the `practice as a principal requirement'.[304] However, it supported the ten year limit on the basis that it ensures that notaries possess adequate legal qualifications. The work of a notary it argued, requires a high degree of theoretical and practical understanding of Australian law and legal documentation. In addition, a good working knowledge of foreign jurisdiction requirements is also necessary.

The Society contended that such standards are best met by lawyers of long standing.[305] The Society submitted that the ten year rule ensures that the applicant has an impeccable professional and personal record, adequate experience in dealing with people, the law and legal documentation as well as an understanding of the administrative and judicial practices and processes of Australia.

9.53

Mr Kyrou contended that the Supreme Court should have the discretion to appoint any legal practitioner as a notary, irrespective of the number of years of practice. It was suggested this would ensure sufficient flexibility and enable the Supreme Court to develop its own guidelines.[306] Mr Kyrou also raised the idea of permitting all solicitors to be notaries in much the same way as they are able to witness statutory declarations.

9.54

How does this length of practice requirement compare with the interstate experience and other judicial appointments in Victoria? Legislation in Victoria provides for the appointment of Judges of both the Supreme and County Court after 7 and 8 years of practice respectively.[307] In reality it would be unusual for a practitioner of such standing to be appointed to the Bench, however it is the intention of Parliament that they may be so appointed.

9.55

Interstate requirements vary from the South Australian practice of allowing appointment of non-lawyers, to imposing a requirement of five years standing in NSW and Tasmania. All the States impose a requirement that the applicant be of good fame and character. The Committee's view is that appointment should be confined to legal practitioners of good fame and character. It is also of the view that there should be a minimum qualifying period prior to appointment.

9.56

The Committee is of the view that maintenance of the link between qualified legal practitioners and notaries would promote the international reputation of Victorian notaries. Evidence was given to the Committee that many of the functions performed by a notary are administrative in nature.[308] However, the Committee is of the view that given the role of the notary in civil law countries and the consequences of many "notarial acts" the value of formal legal training and experience is clear.

9.57

The Committee received evidence that "notarial acts" of American notaries are not accorded much credibility as American notaries are not required to be qualified.[309] They are more akin to what we would call commissioners for taking affidavits. Most notarial acts in the United States are required to be certified by a court or by a consulate before they will be recognised in many other jurisdictions. Allowing only qualified practitioners to become notaries ensures Victoria stays in line with other countries and avoids the pitfalls of the American experience.

9.58

Moreover, as was pointed out by the Attorney-General of South Australia, notaries who are not lawyers would not be subject to the same disciplinary procedures which the South Australian Supreme Court can impose on lawyers.[310] This may lead to the establishment of a separate disciplinary board for notaries. The Committee is of the view that disciplinary procedures ought to be developed and administered by the Supreme Court as part of the package of reforms in respect of notaries.

9.59

In relation to the suggestion that solicitors should be automatically appointed notaries, the Committee's view is that there should be a positive act involved in becoming a notary. Whilst the taking of an affidavit is important, its use is normally confined to the jurisdiction it is taken in or within Australia. The deponent, the person swearing the affidavit, and the commissioner normally have a reasonable knowledge of the jurisdiction of an Australian Court. This is not usually the case with documents certified by a notary. In view of the importance these documents can have in foreign jurisdictions, the Committee's view is that an applicant should be required to take steps and submit evidence to the Court as to his/her suitability to become a notary.

9.60

The Committee is of the view that the functions of a notary are of importance and complexity and that the public interest is best served by allowing only qualified barristers and solicitors to be appointed. In supporting this option the Committee recognises that the entire Australian economy is being exposed to the principles of competition. The Victorian Government along with all other State and Territory Governments have agreed in conjunction with the Commonwealth to implement the principles of competition in all areas of State Government activity and legislation.[311] However one of the exceptions to the imposition of competition principles is where the benefits of the restriction to the community outweigh the costs and the objectives of the legislation. This can only be achieved by restricting competition. For the reasons outlined, the Committee is of the view that restricting the criteria of appointment for notaries is in the public benefit and therefore one of the exceptions to the application of competition principles.

9.61

The Committee is of the view that it is necessary to impose a qualifying period in order to ensure that applicants have had sufficient time to acquire both theoretical and practical training in the law. It appears to the Committee that five years from the date of admission as a barrister and/or solicitor in an Australian jurisdiction, is an appropriate time. The Committee is mindful of the advice of the Honourable Jan Wade MP, Attorney-General in paying particular attention to gender biases implicit in language. In a letter to the then Chairman of the Redundant Legislation Subcommittee, the Hon B. A. E. Skeggs, the Attorney-General, the Hon Jan Wade made the following comment:-

"For example, a changed reference in legislation to a criterion for appointment to a tribunal position being a lawyer with seven years experience in practice as a solicitor or barrister may exclude woman who previously would have been eligible for appointment to a position requiring admission to practice as a barrister and solicitor of the Supreme Court for a minimum period of 7 years"[312]

9.62

The Committee considers that the reference to the date of admission will overcome the problems raised by the Attorney General.

9.63

The requirement of good fame and character should not pose a problem to any applicant who meets the first requirement. Evidence of the good fame and character of the applicant is designed to demonstrate to the Court that the applicant is competent to be appointed as a notary and that he/she has a reputation for personal and professional integrity. This will ensure that the international standing of Victorian notaries is maintained.

9.64

A further issue of minor concern is whether each applicant should supply the name of two referees. The Society has this requirement as one of its standards. It is also required by Rule 82.5(f) of the NSW Supreme Court Rules that two practitioners of ten years standing not related to the applicant certify that the applicant is of good fame and character. The Committee considers that this requirement is unnecessary. In Victoria, appointment as a practitioner and the monitoring of professional standards imposes a requirement to be of good fame and character. The Committee believes that this is sufficient.

9.65 ISSUE 6: Course of Training

This is an important issue for the Committee as it reflects on the standing of notaries. Submissions made to the Committee generally supported the concept of some form of training for those who intend to become notaries.[313]

9.66

NSW is the only jurisdiction which requires applicants to undertake formal instruction.[314] Under Rule 82 of the Supreme Court rules, applicants are required to undertake a course prior to the appointment or to give an undertaking to the Court that they will do the course. They may however be excused if the Court is satisfied that they possess suitable qualifications. The course is conducted by the NSW College of Law. It is a two hour course with no formal assessment.

9.67

Would such a course be suitable for Victoria? One of the objectives of such a course should be to educate notaries and teach skills which are relevant to the practice of being a notary.

9.68

The Committee envisages a course[315] would detail the various requirements of countries which use notarial services and related matters. The object of such a course is to be educative and also to provide evidence to the Supreme Court that applicants have a reasonable understanding of notarial obligations.

9.69

The Committee recommends that the decision as to what course applicants should undertake and the question of assessment is a matter for the discretion of the Supreme Court. The Society may have a role to play in this regard.

9.70

The question of fees is also a matter for the discretion of the Supreme Court. The Committee's recommendations are designed to provide the broad outlines for reform of the appointment and discipline of notaries. Issues such as fees, transitional arrangements, and other related issues should be developed as part of the legislative package.

RECOMMENDATION 35

The Committee recommends that the proposed notaries legislation incorporate a requirement that applicants undertake an approved course of study. The approved course, including the method of assessment is to be determined by the Supreme Court.

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