Notarial services are increasingly rare in Australia. Most notarial services in Australia involve documents required for use in foreign countries. Notarial services are legal acts which allow a written record to be used for official or legal purposes. The range of, and requirements for, notarial services are varied and often depend upon the requirements of each jurisdiction in which the notarised document is to be used.
The terms “notary public” and “public notary” are interchangeable. Public notaries are almost always appointed by a superior court.
Unlike the United States, Australian notarial appointment by a court is indefinite in duration. Many of the tasks which American notaries perform – particularly, witnessing the execution of documents – can within Australia be done by other authorised persons, such as lawyers, Justices of the Peace, or in some circumstances doctors, pharmacists and members of other professions. A Justice of the Peace can provide services similar to American notaries, but are not qualified to witness documents for use outside of Australia.
The most common functions or tasks of notaries within Australia are:
- Authenticating official, Government and personal documents (including contracts) or extracts from Australian government registries (such as ASIC’s registries) for use overseas;
- Witnessing signatures of individuals to documents and authenticating identity; and
- Certifying true copies of documents for use overseas.
Notaries affix an official seal (usually impressed onto a red or gold sticker) or inked stamp onto documents. The seal is placed as near as possible to the notary’s signature. Ideally, the seal should be pressed over the notary’s signature (placing a signature over an embossed seal is difficult because of the imprinted surface.) Often, the document being notarised is bound by a knotted ribbon and the knot is then impressed with the seal, so as to demonstrate that the document has not been tampered with. Sometimes the document can also feature a legal corner (also called a document corner – a fold of paper, often made from the corner of the envelope, which binds loose documents together by the upper left corner) which can also be impressed with the notary’s seal. Often the document has a covering page provided by the notary, which explains what the notary has done.
- Confirm the true identity of a signatory by careful examination of an identity document. Often, notaries will require one hundred points of identification. Notaries will record this information, including retention of a copy of the deponent’s signature. Notaries will take special care when dealing with digital signatures;
- Assess whether the signatory does not suffer any legal incapacity, including but not limited to illness, senility or dementia, duress, or intoxication;
- Ensure that a signatory fully understands the nature and effect of the contents of the document. But weighed against this, and very importantly, notarisation of a document does not involve the provision of legal advice. Notaries cannot and indeed must not advise on the legal implications of the document. That is the role of the deponent’s lawyer. (Similarly, notaries must not notarise documents which have been prepared by the notary or under the notary’s supervision.);
- In respect of a company, ascertain whether the signatory acting is an official representative capacity and has the company’s authority to sign on behalf of the company. This is often done by way of examining a company board resolution or by considering the ASIC database; and
- Refuse notary services if a document constitutes a fraud or an unlawful act.
Notaries collecting information for the purposes of verification of the signature of the deponent might retain the details of documents which identify the deponent, and this information is subject to the Privacy Act 1988. A notary must protect the personal information the notary holds from misuse and loss and from unauthorised access, modification or disclosure.
Often, the signature and seal of a notary require legalisation. This is where the signature and seal of the notary to certified as correct by the Australian Department of Foreign Affairs and Trade (DFAT). DFAT will issue a certificate of authenticity and attach it to the document. A list of sample signatures and seals pertaining to both public notaries and also Australian government departments and officials, institutions, organisations is maintained on DFAT’s database. The sample signatures and seals cover a period of many years, in order to enable DFAT to authenticate the signature or seal on even very old documents.
Some countries are party to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents (the Apostille Convention). This enables the use of an Apostille. The Apostille is a statement identifying the signature of the notary and comprises a large stamp affixed to the notary’s signed document. Under the Apostille Convention, the Australian authorised affixer of the Apostille is DFAT. The use of an apostille saves time and expense for the person requiring the notarised document.
The list of countries which are signatories to the Hague Apostille Convention can be found at the following website: http://www.hcch.net/index_en.php?act=conventions.status&cid=41