Version incorporating amendments as at
1 March 2019
table of provisions
Section Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 1
3 Definitions 1
Part 2—Appointment of public notaries 4
4 Eligibility for appointment 4
5 Application for certificate of eligibility 4
6 Application for appointment as a public notary 7
7 Appeal from Victorian Legal Admissions Board 7
8 Roll of public notaries 7
Part 3—General 9
9 Offences 9
9A Oaths and Affirmations Act 2018 9
10 Effect of expression "public notary" 9
11 Regulations 10
Part 4—Savings, consequential and transitional provisions 11
12 Transitional—Legal Profession and Public Notaries Amendment Act 2012 11
Endnotes 12
1 General information 12
2 Table of Amendments 14
3 Amendments Not in Operation 15
4 Explanatory details 16
Version No.013
Public Notaries Act 2001
No. 52 of 2001
Version incorporating amendments as at
1 March 2019
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1 Purpose
The purpose of this Act is to provide for the appointment and enrolment of public notaries by the Supreme Court.
2 Commencement
(1) Subject to subsection (2), this Act comes into operation on a day to be proclaimed.
(2) If this Act does not come into operation before 31 July 2002, it comes into operation on that day.
3 Definitions
In this Act—
S. 3 def. of Australian lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 89.1(a)), repealed by No. 17/2014 s. 160(Sch. 2 item 81.1(b)).
S. 3 def. of Australian practising certificate inserted by No. 18/2005 s. 18(Sch. 1 item 89.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 81.1(c)).
Australian practising certificate has the same meaning as in the Legal Profession Uniform Law (Victoria);
S. 3 def. of Board of Examiners substituted by No. 18/2005 s. 18(Sch. 1 item 89.1(b)), repealed by No. 17/2014 s. 160(Sch. 2 item 81.1(d)).
Chief Justice has the same meaning as in the Supreme Court Act 1986;
S. 3 def. of Council of Legal Education substituted by No. 18/2005 s. 18(Sch. 1 item 89.1(c)), repealed by No. 17/2014 s. 160(Sch. 2 item 81.1(d)).
S. 3 def. of Legal Practice Board repealed by No. 18/2005 s. 18(Sch. 1 item 89.1(d)).
S. 3 def. of Legal Services Board inserted by No. 18/2005 s. 18(Sch. 1 item 89.1(a)), repealed by No. 17/2014 s. 160(Sch. 2 item 81.1(d)).
S. 3 def. of practising certificate repealed by No. 18/2005 s. 18(Sch. 1 item 89.1(d)).
Prothonotary means Prothonotary of the Supreme Court;
public notary means a person enrolled in accordance with section 8 as a public notary;
S. 3 def. of roll amended by No. 17/2014 s. 160(Sch. 2 item 81.1(e)).
roll means roll of public notaries kept in accordance with section 8;
S. 3 def. of Victorian Legal Admissions Board inserted by No. 17/2014 s. 160(Sch. 2 item 81.1(a)).
Victorian Legal Admissions Board has the same meaning as in the Legal Profession Uniform Law Application Act 2014;
S. 3 def. of Victorian Legal Services Board inserted by No. 17/2014 s. 160(Sch. 2 item 81.1(a)).
Victorian Legal Services Board has the same meaning as in the Legal Profession Uniform Law Application Act 2014.
Part 2—Appointment of public notaries
S. 4 amended by No. 15/2012 s. 16 (ILA s. 39B(1)).
4 Eligibility for appointment
(1) A person cannot be appointed as a public notary unless the person—
(a) is a natural person; and
S. 4(1)(b) substituted by No. 18/2005 s. 18(Sch. 1 item 89.2(a)).
(b) is an Australian lawyer; and
S. 4(1)(c) amended by No. 18/2005 s. 18(Sch. 1 item 89.2(b)).
(c) subject to section 5(7), has held for a period of 5 years an Australian practising certificate authorising the person to engage in legal practice as a principal; and
S. 4(1)(d) substituted by No. 17/2014 s. 160(Sch. 2 item 81.2(a)).
(d) has completed, to the satisfaction of the Victorian Legal Admissions Board, a course of study related to notarial practice approved by that Board.
S. 4(2) inserted by No. 15/2012 s. 16, amended by No. 17/2014 s. 160(Sch. 2 item 81.2(b)).
(2) A person cannot be appointed as a public notary unless the Victorian Legal Admissions Board is satisfied that the person is a fit and proper person to be a public notary.
5 Application for certificate of eligibility
S. 5(1) amended by No. 17/2014 s. 160(Sch. 2 item 81.3(a)).
(1) A person who intends to apply for appointment as a public notary must apply to the Victorian Legal Admissions Board for a certificate that the applicant is eligible for appointment in accordance with section 4.
(2) An application under subsection (1) must be in the form prescribed by the rules of the Supreme Court.
S. 5(3) amended by Nos 10/2004 s. 15(Sch. 1 item 24), 14/2006 s. 18.
(3) An applicant must pay to the Prothonotary a fee of 29 fee units or, if a fee is prescribed by the regulations, the prescribed fee.
S. 5(4) amended by No. 15/2012 s. 17(1).
(4) An application must be accompanied by evidence of the matters set out in section 4(1)(b), (c) and (d) and (2).
S. 5(4A) inserted by No. 15/2012 s. 17(2), amended by No. 17/2014 s. 160(Sch. 2 item 81.3
(b)(i)).
(4A) In determining whether an applicant is a fit and proper person to be a public notary, the Victorian Legal Admissions Board must have regard to—
(a) whether the applicant has ever been suspended from practice; and
S. 5(4A)(b) amended by No. 17/2014 s. 160(Sch. 2 item 81.3
(b)(ii)).
(b) whether the applicant has been found guilty of either of the following within the meaning of the Legal Profession Uniform Law (Victoria)—
(i) professional misconduct; or
(ii) unsatisfactory professional conduct; and
S. 5(4A)(c) amended by No. 17/2014 s. 160(Sch. 2 item 81.3
(b)(ii)).
(c) whether the applicant has been found guilty of either of the following under a corresponding law within the meaning of the Legal Profession Uniform Law (Victoria)—
(i) professional misconduct; or
(ii) unsatisfactory professional conduct; and
S. 5(4A)(d) substituted by No. 17/2014 s. 160(Sch. 2 item 81.3(c)).
(d) whether the applicant is being investigated for a complaint containing a disciplinary matter—
(i) within the meaning of the Legal Profession Uniform Law (Victoria); or
(ii) under a corresponding law within the meaning of that Law.
S. 5(5) amended by No. 17/2014 s. 160(Sch. 2 item 81.3(d)).
(5) The Victorian Legal Admissions Board may require an applicant—
(a) to provide any further evidence that the Board thinks fit in relation to any matter relevant to the Board's consideration; or
(b) to appear in person before the Board.
S. 5(6) amended by No. 17/2014 s. 160(Sch. 2 item 81.3(d)).
(6) The Victorian Legal Admissions Board may make any enquiries it thinks fit concerning an application under this section.
S. 5(7) amended by Nos 18/2005 s. 18(Sch. 1 item 89.3), 17/2014 s. 160(Sch. 2 item 81.3(d)).
(7) The Victorian Legal Admissions Board may, subject to any conditions it thinks fit, dispense with or vary, in an individual case, the requirement that an applicant have held for a period of 5 years an Australian practising certificate authorising the person to engage in legal practice as a principal to the extent that the Board considers that the dispensation or variation—
(a) does not; or
(b) if the applicant complies with the conditions imposed by the Board, will not—
materially diminish the value of that requirement.
S. 5(8) amended by No. 17/2014 s. 160(Sch. 2 item 81.3(d)).
(8) If it appears to the Victorian Legal Admissions Board that the applicant is eligible for appointment as a public notary, the Board must issue to the applicant a certificate in the form prescribed by the rules of the Supreme Court.
6 Application for appointment as a public notary
(1) A person to whom a certificate has been issued under section 5 may apply, within 30 days after the date of issue of the certificate, to the Supreme Court constituted by the Chief Justice for appointment as a public notary.
(2) An application must be made in accordance with the rules of the Supreme Court.
(3) The Supreme Court constituted by the Chief Justice may appoint and enrol a person as a public notary if the person—
(a) files with the Court the certificate issued under section 5; and
(b) pays the fee, if any, prescribed by the regulations.
S. 7 (Heading) amended by No. 17/2014 s. 160(Sch. 2 item 81.4).
7 Appeal from Victorian Legal Admissions Board
S. 7(1) amended by No. 17/2014 s. 160(Sch. 2 item 81.5).
(1) A person may appeal to the Supreme Court constituted by the Chief Justice against a decision of the Victorian Legal Admissions Board with respect to his or her application for a certificate under section 5.
(2) An appeal under subsection (1) must be made within 30 days after the person is notified of the decision.
(3) An appeal under subsection (1) is to be conducted as a re-hearing.
8 Roll of public notaries
(1) The Supreme Court must cause to be kept a roll of the names of persons appointed as public notaries in Victoria.
(2) The roll must include the date of birth and date of appointment as public notary of each person listed on the roll.
(3) A person appointed as a public notary must sign the roll kept by the Supreme Court.
(4) The appointment of a person as a public notary is effective from the time the person signs the roll.
(5) The Supreme Court may, at the request of a public notary, cause the name of the public notary to be removed from the roll.
S. 8(6) amended by No. 18/2005 s. 18(Sch. 1 item 89.4(a)).
(6) If a public notary ceases to be an Australian lawyer the Supreme Court must cause the name of the public notary to be removed from the roll.
S. 8(7) amended by Nos 18/2005 s. 18(Sch. 1 item 89.4(b)), 17/2014 s. 160(Sch. 2 item 81.6).
(7) The Prothonotary must forward to the Victorian Legal Services Board the name, date of birth and date of appointment of each public notary as soon as practicable after the person has signed the roll.
Part 3—General
9 Offences
(1) Subject to subsection (2), a person, other than a person who—
(a) is named on the roll; and
S. 9(1)(b) amended by No. 18/2005 s. 18(Sch. 1 item 89.5).
(b) holds an Australian practising certificate that authorises the person to engage in legal practice as a principal—
must not—
(c) hold out that the person is entitled, qualified, able or willing to practise as a public notary; or
(d) practise as a public notary.
120 penalty units.
(2) Subsection (1) does not apply to a person who is deemed by section 12(1) to be a public notary appointed under this Act.
S. 9A
inserted by No. 6/2018 s. 67.
9A Oaths and Affirmations Act 2018
Parts 2, 3 and 4 of the Oaths and Affirmations Act 2018 apply, with any necessary modification, to any notarial act.
10 Effect of expression "public notary"
For the avoidance of doubt, it is declared that—
(a) a holder of the office of public notary has the same powers, authorities, duties and functions as a holder of the office of notary public or public notary had immediately before the commencement of this Act; and
(b) nothing in this Act affects the validity or operation within Victoria of a notarial act duly done outside Victoria.
11 Regulations
The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
Part 4—Savings, consequential and transitional provisions
S. 12 repealed by No. 28/2007 s. 3(Sch. item 56),
new s. 12 inserted by No. 15/2012 s. 18.
12 Transitional—Legal Profession and Public Notaries Amendment Act 2012
Part 2 as amended by sections 16 and 17 of the Legal Profession and Public Notaries Amendment Act 2012 applies in respect of a person who applies for a certificate of eligibility under section 5 after the commencement of those sections.
Ss 13, 14 repealed by No. 28/2007 s. 3(Sch. item 56).
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 17 May 2001
Legislative Council: 18 September 2001
The long title for the Bill for this Act was "A Bill to provide for the appointment and regulation of the practice of public notaries, to amend the Legal Practice Act 1996, the Instruments Act 1958 and the Evidence Act 1958 and for other purposes."
The Public Notaries Act 2001 was assented to on 25 September 2001 and came into operation on 6 June 2002: Government Gazette 30 May 2002 page 1118.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Public Notaries Act 2001 by Acts and subordinate instruments.