Are you dealing with foreign legal documents or engaging in business overseas? A public notary must verify documents that are used or intended for use outside of Australia. Fraud, identity theft and forgery are becoming increasingly commonplace and harder to track down and resolve.

The services of public notaries are therefore increasingly important when it comes to ensuring the authenticity of documents, signatures and identities. The strict requirements involved in notarising documents is to ensure that individuals do not engage in, as well as are protected from, fraudulent behaviour when engaging with other individuals or businesses overseas.

What is a Public Notary?

In Australia, a public notary is a practising lawyer or solicitor who has special statutory powers to prepare and certify documents, witness signatures, confirm a person’s identity, administer oaths, take statutory declarations and provide a range of other administrative services to the public.

You may be thinking that the powers and functions of a public notary closely resemble those of a Justice of the Peace (JP). You are not wrong! While many of their functions are largely the same, public notaries hold the exclusive power to witness international documents, in other words, those intended for use outside of Australia. Notaries are lawyers with specialist education in Notarial Practice, while a JP is a volunteer of good character and does not necessarily require training.

It is also important to note that the differentiation between notaries and JPs in Australia does not transfer to other parts of the world. For example, the functions of a US notary are more similar to that of an Australian JP, and so the powers of an Australian public notary exceed those of a US notary.

In Australia, the legal tradition of notaries was passed on from England, and it was only in 1986 that the power to appoint public notaries was removed from the Archbishop of Canterbury to the State and Territory Supreme Courts (except for in QLD). In NSW, the Public Notaries Act 1997 (NSW) and the Public Notaries Appointment Rules 1998 now contains this power.

What is the Purpose of Notarisation?

The function and purpose of notarisation have deep historical roots, dating back to Ancient Rome. At this time a ‘notarised’ document was one that contained the official wax seal comprising the family crest or another personal identifier of an appointed official or clergy member.

Nowadays, public notaries use simple red adhesive wafer seals and staplers, so the glamour of the wax seal may be dead but the symbolism of the distinctive seal, declaring authenticity, remains the same. Each public notary in Australia has his or her unique official seal and signature, which is registered with the Department of Foreign Affairs and Trade (DFAT). DFAT refers to their register of seals to verify the public notary and the authenticity of the document in question.

Essentially, the purpose of notarisation is to authorise documents via this official seal, so as to make them acceptable to judicial or other public authorities in the foreign country or jurisdiction in which they will be used. Notarisation has been dubbed a “powerful risk management tool” in preventing fraud, forgery and identity theft.

When Would I Need a Public Notary?

When assessing whether you need to engage a public notary rather than a JP, the international element will usually be the deciding factor. If you intend to have a document enforced or recognised overseas, are applying for a foreign passport, are engaging in contracts with foreign nationals or signing something written in a foreign language, you will need the services provided by a public notary.

For example, if you create a Power of Attorney in Sydney but require it’s recognition in India, you will need for it to be notarised. Similarly, imagine if you are involved in international litigation, a public notary must witness an affidavit or declaration made in Sydney before it’s admissible in a foreign court.

What are the Requirements?

Depending on the foreign country you wish to have the document recognised in, the requirements for notarisation will differ.

The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) (the Treaty) abolished the obligation to have a country’s diplomatic body or embassy authorise notarised documents. Instead, the Treaty requires the Foreign Affairs department in the origin country to provide an ‘apostille’ authorising the notary’s seal and stamp.

This law only applies to countries that have signed the treaty. Australia is one of the countries that subscribes to the Apostille Convention, along with the UK, US, Italy, Greece, The Netherlands, Russia and others. If you are seeking to have a document recognised in one of these countries, you can, with the help of your public notary, apply to DFAT for an Apostille.

If you are engaging with a country that is not a party to the Apostille Convention, such as China, Vietnam or the UAE, DFAT will first need to authenticate the document before you present it at the relevant embassy or consulate, and then send it overseas. For a checklist of what you’ll need when working with a public notary, see our article titled, ‘what happens when I see a notary?’

Ursula Hogben

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