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The Various Laws (Notarial Acts, Archives And Profession) (Amendment) Act, 2010 (Bill No. 71)

A BILL

entitled

AN ACT to amend various laws relating to the Public Registry and

Notarial Archives.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-

1. The short title of this Act is the Various Laws (Public

Registry and Notarial Archives) (Amendment) Act, 2011.

PART I Amendment to the Civil Code

2. (1) This Part amends the Civil Code, and it shall be read

and construed as one with the Civil Code, hereinafter in this Part referred to as "the Code".
(2) The provisions of this Part shall come into force on such date as the Minister responsible for justice may, by notice in the Gazette, establish, and different dates may be so established for different purposes of this Part.

Short title.

Amendment to the Civil Code. Cap. 16.

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Amendment of article 306 of the Code.

Amendments to the Notarial Profession and Notarial Archives Act. Cap. 55.

Amendment of article 3 of the principal Act.

Amendment of article 14 of the principal Act.

3. Sub-article (5) of article 306 of the Code shall be substituted by the following new sub-article:

"(5) The Director of the Public Registry shall be the only competent person to represent in any capacity the Public Registry in any legal proceedings under this Code or any other law, so however that he may delegate such duties, including judicial representation, to one or more Assistant Directors either on an ad hoc basis or on a more permanent one.".

PART II

Amendments to the Notarial Profession and Notarial Archives Act

4. (1) This Part amends the Notarial Profession and Notarial Archives Act and it shall be read and construed as one with the Notarial Profession and Notarial Archives Act, hereinafter in this Part referred to as "the principal Act".

(2) This Part shall come into force on such date as the Minister responsible for notarial affairs may by notice in the Gazette appoint, and different dates may be so appointed for different provisions or for different purposes of this Part.

5. Sub-article (2) of article 3 of the principal Act shall substituted by the following new sub-article:

"(2) Saving the provisions of articles 14 and 22, in so far as they relate to the offices of Chief Notary to Government or Notary to Government, no person holding an office of profit under the Government, except the office of Director or Assistant Director of the Public Registry or Director or Assistant Director of the Land Registry, may be appointed to be a Notary:
Provided that the Director or the Assistant Director of the Public Registry and the Director or Assistant Director of the Land Registry may not practise as a notary except in the capacity of Chief Notary to Government or Notary to Government.".

6. Article 14 of the principle Act shall be amended as follows:

(a) in the proviso to paragraph (a) of sub-article (1) thereof, the words "or Notary Public in the Government Property Division or Notary Public with the Housing Authority" shall be deleted; and
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(b) in sub-article (3) thereof, the words "or of Notary Public in the Government Property Division or of Notary Public with the Housing Authority" shall be deleted.

7. Article 22 of the principal Act shall be substituted by the following new article:

"22. (1) There shall be a Chief Notary to Government and one or more Notaries to Government as may be established in Schedule II, such that all notaries indicated in the said Schedule shall be under the direct supervision of the Chief Notary to Government even though they may be specifically assigned with any other department or entity.
(2) The Chief Notary to Government and Notaries to Government shall be appointed from among notaries appointed by the President of Malta in accordance with the provisions of Title I of Part II.
(3) The functions of Chief Notary to Government and Notaries to Government shall consist in receiving those deeds only to which the Government, any corporate body established by law, or, as may be authorized by the Minister in each case, any partnership or any other body in which the Government of Malta or any such body as aforesaid have a controlling interest or over which they have effective control, is a party, in having the custody of the deeds respectively received by them and in serving out copies and extracts of or from such deeds during their tenure of office. The notary shall also tender advice, examine researches or perform other duties as may be within his competence and as may be required by the Chief Notary to Government or the head of the department or entity to which he is assigned.
(4) (a) A Notary to Government, even though assigned duties in a particular department or entity, shall exercise such duties, powers and functions as may be delegated or assigned to him by the Chief Notary to Government, provided that in assigning such duties the Chief Notary shall seek, in writing, the advice of the head of department or entity where the notary is assigned before deciding on such delegation.
(b) The Chief Notary may require one or more of the Notaries to Government to be assigned with any Government department or entity as may be required for the better management of the notarial work indicated in sub-article (3).

Substitution of article 22 of the principal Act.

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(5) In the case of absence or other lawful impediment of the Chief Notary to Government, the Minister responsible for notarial affairs may delegate one of the Notaries to Government for the Island of Malta, or appoint another notary to discharge the duties of the Chief Notary to Government or of any of the Notaries listed in Schedule II.

Amendment of article 105 of the principal Act.

Renumbering of the Schedule to the principal Act.

(6) The office of Chief Notary to Government or of Notary to Government shall be deemed not to be incompatible with the office of Archivist of the Public Registry.".

8. Article 105 of the principal Act shall be amended as follows:

(a) for the words "shall be served." there shall be substituted the words "shall be served:" and
(b) immediately after the words "shall be served:" there shall be added the following new provisos:
"Provided that where the removal of any of the acts, registers and indexes referred to in this article is requested by a person or entity for a cultural, scientific or forensic purpose, within the Maltese Islands, it shall be at the discretion of the Archivist, after consultation with an expert in the field of conservation and preservation of documents, and after obtaining endorsement by the Minister responsible for notarial affairs, to authorise their removal from the Archives. Such person or entity shall ensure that they are returned and replaced as soon as the purpose for which they shall have been removed from the Archives shall have been served and in no case shall their removal from the Archives exceed twenty calendar days:
Provided further that where such acts, registers and indexes are removed for the purposes of this sub-article, any measures considered necessary by the Archivist, including those relating to security and insurance cover, shall be taken by the persons or entity requesting their removal to the satisfaction of the Archivist and expert abovementioned.".

9. The Schedule to the principal Act shall be renumbered as

"Schedule I".
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10. In articles 81, 101, 104, 110 and 146 of the principal Act, for the word "Schedule", wherever it occurs, there shall be substituted the words "Schedule I".

11. Immediately after Schedule I, as renumbered, of the principal Act, there shall be added the following new Schedule:

"Schedule II Notaries to Government
(unless otherwise indicated includes Malta and Gozo as may be required)
Notary to Government
Assistant Director Public Registry Assistant Director Land Registry Notary with the Housing Authority Notary with the Joint Office
Notary with the Government Property Division".

PART III

Amendment to the Notarial Acts (Temporary Provisions) Act

12. (1) This Part amends the Notarial Acts (Temporary Provisions) Act and it shall be read and construed as one with the Notarial Acts (Temporary Provisions) Act, hereinafter in this Part referred to as "the principal Act".

(2) This Part shall come into force on such date as the Minister responsible for notarial affairs may by notice in the Gazette appoint, and different dates may be so appointed for different purposes of this Part.

General amendment to the principal Act.

Addition of new schedule to the principal Act.

Amendment to the Notarial Acts (Temporary

Provisions) Act. Cap. 408.

13. In the proviso to sub-article (8) of article 4 of the principal Act, the words "Such inspection of Acts deposited in the archives shall be carried out at the archives." shall be deleted.

Amendment of article 4 of the principal Act.

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Objects and Reasons

The objects of this Bill are to facilitate the duties of the Director of Public Registry in any legal proceedings and to enable him/her to appoint a delegate, to facilitate the procedure for the removal of volumes from the Notarial Archives when the scope for their removal is a cultural, scientific or forensic one and to ensure that the requisite conservation and safety measures are taken, and to remove the restriction from the proviso to article 4(8) of the Notarial Acts (Temporary Provisions) Act in order to enable the members of the Court of Revision of Notarial Acts to carry out the inspection of Notarial Acts deposited in the Notarial Archives on premises other than the Archives.