What Is a Notarised Document in Australia?

What is a Notary Public?

A notary public, sometimes referred to as a public notary, is a highly experienced legal practitioner—usually a solicitor—who has undertaken further specialist training and been formally appointed to a public office. Their primary function is to attest, authenticate, and certify documents for use in foreign jurisdictions.

Appointment and Regulation

Each Australian state and territory has its own framework for the appointment and regulation of notaries public. Appointments are made by the Supreme Court of the respective state or territory. For instance, in New South Wales, the Public Notaries Act 1997 (NSW) and the Public Notaries Appointment Rule 1998 govern the appointment process. Similar legislation exists in other jurisdictions, ensuring a consistent standard of practice across Australia. Notaries are also subject to the professional conduct rules of the legal profession in their jurisdiction, supervised by bodies such as the Law Society of New South Wales or the Victorian Legal Services Board + Commissioner, in addition to their notarial duties.

The Notarial Act

When a notary public performs a 'notarial act', they are exercising an ancient common law power, supplemented by statutory provisions. This act gives international legal validity to documents. The notary's seal and signature are internationally recognised as evidence that specific procedures have been followed, thereby verifying the authenticity of signatures, documents, and facts for use outside Australia.

Common notarial acts include:

• Witnessing Signatures: Verifying the identity of the signatory and confirming that they signed the document voluntarily.
• Certifying Copies: Declaring that a copy of an original document is a true and accurate reproduction.
• Administering Oaths and Affirmations: For statutory declarations, affidavits, or other sworn statements, ensuring the deponent understands the gravity of their statement.
• Certifying Company Documents: Attesting to the authenticity of company resolutions, minutes, or extracts from corporate registers for foreign registries or transactions.
• Preparing Notarial Certificates: Issuing formal certificates that summarise the notarial act performed, often appended to the document itself.

Notary Public vs. Justice of the Peace (JP)

A common point of confusion arises when distinguishing between the roles of a notary public and a Justice of the Peace (JP) or other authorised witnesses (like legal practitioners). While both roles involve witnessing signatures and certifying documents, their scope and international recognition differ significantly.

A Justice of the Peace is an honorary appointment made by state or territory governments. JPs are authorised to witness affidavits, statutory declarations, and certify copies of original documents for use within Australia. Their authority stems from state and territory legislation, such as the Justices of the Peace Act 2002 (NSW). Documents certified by a JP are generally not recognised by overseas authorities.

A notary public, by contrast, performs similar functions but specifically for documents intended for use outside Australia. Their authority is recognised internationally through long-standing common law principles and international conventions. Overseas governments, banks, courts, and other institutions almost universally require notarisation by a public notary—not JP certification—to ensure the integrity and authenticity of Australian documents presented to them.

When is a Notarised Document Required?

The need for notarisation typically arises when an Australian individual or entity has legal dealings in a foreign country. Examples include:

• International Business Transactions: Companies undertaking mergers, acquisitions, or forming subsidiaries overseas may need notarised copies of their corporate documents, board resolutions, or powers of attorney. For intricate details on such agreements, see our insights on business contracts.
• Overseas Property Transactions: Buying, selling, or mortgaging property in another country often requires notarised property transfer documents, powers of attorney, and identity verification.
• Immigration and Visa Applications: Some countries require notarised copies of educational qualifications, birth certificates, marriage certificates, or police checks as part of visa applications.
• Inheritance and Estate Matters: When dealing with an estate that has assets in multiple countries, notarised wills, death certificates, and probate documents may be necessary.
• Overseas Court Proceedings: Affidavits, statutory declarations, or evidence intended for use in foreign courts nearly always require notarisation.
• Education and Employment Overseas: Foreign universities or employers may request notarised copies of academic transcripts or professional qualifications.

The Apostille and Authentication Process

Notarisation is often the first step in a multi-stage process to ensure an Australian document is legally recognised in another country. Once a document has been notarised, it may require further certification by the Australian Department of Foreign Affairs and Trade (DFAT) in the form of an apostille or authentication.

The Hague Apostille Convention

Australia is a signatory to The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, commonly known as the Apostille Convention. This international treaty simplifies the process of authenticating documents between signatory countries. Under the Convention, a single certificate—the Apostille—issued by the competent authority (DFAT in Australia) is sufficient to certify the origin of the public document and the authenticity of the signature, seal, or stamp on the document. It eliminates the need for further legalisation by the embassy or consulate of the destination country.

For a list of countries that are signatories to the Apostille Convention, you can refer to the Hague Conference on Private International Law website.

Authentication and Legalisation

If the destination country is not a signatory to the Apostille Convention, a different process called 'authentication' is required. DFAT will issue an Authentication Certificate, which attests to the authenticity of the notary's signature and seal. However, unlike an apostille, an authentication certificate is typically not the final step. The document then usually needs to be presented to the embassy or consulate of the destination country in Australia for 'legalisation' (also known as consularisation). This final step involves the embassy or consulate affixing their own seal, confirming that the document has been properly authenticated by DFAT and is therefore recognised by their country's legal system.

Which one do you need?

Determining whether an apostille or authentication is required depends entirely on the country where the document will be used. It is crucial to verify the specific requirements of the foreign authority or institution requesting the document. DFAT provides comprehensive information on this process via its Smartraveller website, specifically detailing document authentication and apostilles.

The Process of Getting a Document Notarised and Legalised

1. Identify the Need: Confirm with the overseas authority if notarisation is required and whether an apostille or authentication will be necessary afterwards.
2. Contact a Public Notary: Engage a notary public. You will typically need to present the original document (or the document to be signed), along with valid photo identification (e.g., passport, driver's licence). The notary will verify your identity, witness your signature (if applicable), and affix their official seal and signature.
3. Seek DFAT Certification (if required): If an apostille or authentication is needed, you will then submit the notarised document to DFAT. This can be done in person at a DFAT office or by mail.
4. Consular Legalisation (if required): For non-Hague Convention countries, after DFAT authentication, you will need to contact the relevant foreign embassy or consulate in Australia to arrange for their legalisation.

The timeframes and costs for each stage can vary. Notary fees are unregulated and set by individual notaries. DFAT charges a fee for apostilles and authentications, and foreign embassies or consulates set their own fees for legalisation services.

Navigating the requirements for international document use can be complex. Envision Legal can assist clients by guiding them through the notarisation process and coordinating with DFAT and relevant embassies to ensure their documents are correctly prepared and legally recognised overseas, allowing you to focus on your core business or personal matters.

This article contains general information only and does not constitute legal advice. Envision Legal accepts no liability for any loss arising from reliance on this content. You should seek independent legal advice tailored to your specific circumstances. For enquiries, contact Envision Legal.