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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Notaries Public Bill 2016
A BILL FOR
An Act to provide for the admission and enrolment of notaries public and to
regulate the practice of notaries public; to make related amendments to the
Legal
Practitioners Act 1981
; and for other purposes.
Contents
1Short title
5Appointment of notaries public
6Powers
and authorities of notary public
8Investigations, inquiries and disciplinary
proceedings
9Power
of Court to suspend or remove name from roll
10Automatic removal of name from
roll
11Person
acting as notary public contrary to Act
Schedule 1—Related amendments and
transitional provision
Part 2—Amendment of Legal
Practitioners Act 1981
2Amendment of section 14C—Functions of
LPEAC
3Amendment of section 17A—Conditions as to
training etc
4Amendment of section 21—Entitlement to
practise
6Continuation of roll and persons admitted to
the roll
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Notaries Public
Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
interstate legal practitioner has the same meaning as in the
Legal
Practitioners Act 1981
;
legal practitioner has the same meaning as in the
Legal
Practitioners Act 1981
;
local legal practitioner has the same meaning as in the
Legal
Practitioners Act 1981
;
LPEAC means the Legal Practitioners Education and Admission
Council established under the
Legal
Practitioners Act 1981
;
Registrar means the Registrar of the Supreme Court.
(2) For the purposes of this Act, a person is entitled to practise
the profession of the law in this State if the person is a local legal
practitioner or an interstate legal practitioner.
(1) LPEAC has the
following functions under this Act:
(a) to make rules
prescribing—
(i) the qualifications for admission and enrolment of a person as a notary
public; and
(ii) the
requirements for post-admission education, training or experience for a person
admitted as a notary public;
(b) to keep the effectiveness of education and training courses and
post-admission experience under review so far as is relevant to practice as a
notary public;
(c) to monitor compliance with rules prescribed under
paragraph (a)
.
(2) Rules prescribed by LPEAC under
subsection (1)
may—
(a) be of general, limited or varied application according to the classes
of person to which they are expressed to apply; and
(b) leave a matter to be determined according to the discretion of LPEAC
or the Supreme Court.
(3) A rule made under
subsection (1)(a)
may only be made after consultation with any body that represents the
interests of notaries public prescribed by the regulations for the purposes of
this subsection.
(4) A rule made under
subsection (1)(a)(ii)
requiring notaries public to undertake further education or training or
obtain further experience may only be made with the concurrence of the
Attorney-General.
(5) Rules made under
subsection (1)(a)(ii)
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
(a) is entitled to practise the profession of the law in this State;
and
(b) has been admitted and enrolled as a legal practitioner (in this State
or any other State) for at least 5 years,
may apply to the Supreme Court to be admitted and enrolled as a notary
public of the Supreme Court.
(2) A person who, on application under
subsection (1)
, satisfies the Supreme Court—
(a) that the person's entitlement to practise the profession of the law is
not, in this State or any other State, subject to any limitation, restriction or
other condition inconsistent with the carrying out of the functions of a notary
public; and
(b) that—
(i) the person has complied with the rules relating to the qualifications
for admission and enrolment of a person as a notary public made by LPEAC under
section 4(1)
; or
(ii) insofar as there has been non-compliance with those rules, the person
should be exempted from such compliance; and
(c) that the person is a fit and proper person to practise as a notary
public,
is entitled to be admitted and enrolled as a notary public of the Supreme
Court.
(3) A person admitted as a notary public under this Act must make an oath
in the prescribed form before the Registrar of the Supreme Court or a
Commissioner authorised to take affidavits in the Supreme Court.
6—Powers
and authorities of notary public
A person admitted and enrolled as a notary public under this Act has all
the powers and authorities (including the power to take affidavits) exercisable
by law or custom by notaries public.
(1) The Registrar of the Supreme Court must cause a roll to be kept of all
notaries public admitted under this Act.
(2) On the
application of a person whose name appears on the roll, the Registrar must grant
a certificate in the prescribed form certifying that the person is a notary
public duly authorised and admitted and enrolled to practise as such in this
State.
(3) An apparently genuine document purporting to be a certificate under
this section will, in the absence of proof to the contrary, be accepted in legal
proceedings as evidence that the person named in the certificate is admitted and
enrolled as a notary public.
8—Investigations,
inquiries and disciplinary proceedings
(1) For the purposes of the definition of unsatisfactory
professional conduct in section 68 of the
Legal
Practitioners Act 1981
, conduct of a person admitted and enrolled as a notary public in
performing the functions of a notary public is taken to be conduct occurring in
connection with the practice of law.
(2) For the purposes of the definition of professional
misconduct in section 69 of the
Legal
Practitioners Act 1981
, conduct of a person admitted and enrolled as a notary public in
performing the functions of a notary public is taken to be professional conduct
of a legal practitioner.
(3) The Legal Profession Conduct Commissioner may, without limitation, in
taking action under section 77J of the
Legal
Practitioners Act 1981
in relation to a legal practitioner who is admitted and enrolled as a
notary public, make an order imposing specified conditions on the practitioner's
practising certificate (whether a practising certificate under the
Legal
Practitioners Act 1981
or an interstate practising certificate) relating to the practitioner's
practice as a notary public.
(4) The Legal Practitioners Disciplinary Tribunal may, without limitation,
in taking action under Part 6 of the
Legal
Practitioners Act 1981
in relation to a legal practitioner who is admitted and enrolled as a
notary public, make an order imposing specified conditions on the practitioner's
practising certificate (whether a practising certificate under the
Legal
Practitioners Act 1981
or an interstate practising certificate) relating to the person's practice
as a notary public.
9—Power
of Court to suspend or remove name from roll
(1) The Supreme Court may, on its own initiative, or on the application of
the Attorney-General, the Legal Profession Conduct Commissioner or the Law
Society of South Australia—
(a) suspend the name of a notary public from the roll of notaries public
for a specified period or indefinitely; or
(b) remove the name of a notary public from the roll of notaries
public,
if the Court considers that a ground exists for so doing.
(2) An application under this section—
(a) must be served on the notary public to whom it relates in accordance
with the rules of the Supreme Court; and
(b) must—
(i) specify the order sought by the applicant; and
(ii) state the ground for seeking the proposed order; and
(iii) invite the notary public to make written representations to the
Court, within a time specified by the Court of not less than 7 days and not
more than 28 days, as to why the order should not be made.
(3) If the Supreme Court makes an order suspending or removing a person's
name from the roll of notaries public, the Court must give the person a written
notice about the order setting out—
(a) the terms of the order; and
(b) the reasons for the order.
10—Automatic
removal of name from roll
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 if—
(a) the person's name is removed from the roll of legal practitioners
maintained under the
Legal
Practitioners Act 1981
; or
(b) in the case of an interstate legal practitioner, the person's name is
removed from the roll kept in another State that corresponds to the roll of
legal practitioners maintained under the
Legal
Practitioners Act 1981
.
11—Person
acting as notary public contrary to Act
(1) If a person acts as
a notary public without—
(a) being admitted and enrolled as a notary public under this Act;
and
(b) being entitled to practise the profession of the law in this
State,
the person is guilty of an offence.
Maximum penalty: $50 000.
(2)
Subsection (1)
does not apply in relation to a person who is admitted and enrolled as a
notary public of the Supreme Court having been admitted and enrolled as a public
notary under the
Legal
Practitioners Act 1981
before the commencement of this Act.
The Governor may make such regulations as are contemplated by, or necessary
or expedient for the purposes of, this Act.
Schedule 1—Related
amendments and transitional provision
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Legal Practitioners
Act 1981
2—Amendment
of section 14C—Functions of LPEAC
Section 14C(1)(d)—after "assigned to LPEAC by this Act"
insert:
or any other Act
3—Amendment
of section 17A—Conditions as to training etc
Section 17A—after subsection (7) insert:
(8) For the purposes of this section insofar as it relates to a legal
practitioner who is admitted and enrolled as a notary public under the
Notaries
Public Act 2016
, a reference to rules made by LPEAC includes rules made by LPEAC under
that Act.
4—Amendment
of section 21—Entitlement to practise
Section 21(3)(r)—delete "public notary" and substitute:
notary public admitted and enrolled under the
Notaries
Public Act 2016
Part 7—delete the Part
Part 3—Transitional
provision
6—Continuation
of roll and persons admitted to the roll
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 Act continues after that
commencement as the roll of notaries public required to be kept by the Registrar
of the Supreme Court under
section 7
of this Act and a person listed on that roll is taken to be admitted as
enrolled as a notary public under this Act.