What is a Notary?
All notaries in New South Wales are qualified lawyers.
Notaries are appointed by the Supreme Court pursuant to the Public Notaries Act 1997 (NSW) and the Public Notaries Appointment Rules 1998. Applicants must be lawyers of at least 5 years standing who complete the prescribed Notarial Practice Course and apply through the Legal Profession Admission Board (the Board). Upon appointment, the name of the Notary is entered on the Roll of Public Notaries maintained by the Board.
Rules governing the practice, administration, regulation and discipline of Notaries are very similar to the laws covering all practising solicitors. This includes the holding of compulsory professional indemnity insurance for the due protection of their clients.
The Notary is permitted to practice anywhere within the state of New South Wales whilst on the Roll of Notaries.
A Notary has been likened to “an International Justice of the Peace” because, almost exclusively, the work of a notary involves documentation required by a client for overseas use. By comparison, documentation for use within Australia can usually be dealt with by a qualified lawyer.
COMMON FUNCTIONS PERFORMED BY NOTARIES
The most common functions or tasks of Notaries within Australia tend to be:
- Authenticating official, Government and personal documents and information for use overseas
- Witnessing signatures of individuals to documents and authenticating identity
- Witnessing Powers of Attorney for use overseas, including from time to time, preparing them
- Certifying true copies of documents for use overseas
- For corporations and business, witnessing documents and authenticating status and transactions
- Dealing with documentation for land, property and deceased estates overseas
OTHER NOTARIAL FUNCTIONS
Often notarial functions may include the requirement for the preparation of legal documents, such as a power of attorney or an agreement encompassing and formalising a transaction. As a lawyer the Notary is well qualified to carry out this legal work for the client as well as perform the notarial function.
LEGALISATION OF THE NOTARY’S SIGNATURE
In many instances the document/s to be sent overseas may require the signature and seal of the Notary to be legalised (certified as correct) by the Australian Department of Foreign Affairs and Trade (DFAT). Once DFAT has issued its certificate and endorsed or attached it to the Notary’s document, the document may have to be certified at the Consulate or Embassy of the foreign country to which it is to be sent. The Consulate or Embassy is in effect certifying the Australian Government’s seal and signature on the document is correct.
The Notary can usually help the client by explaining DFAT’s requirements and the requirements of the particular Consulate. The act of DFAT’s legalisation of the Notary’s signature and seal never implies acceptance or approval of any words, statement, certificate or other document preceding the legalised signature. This is frequently stated by DFAT in its certificates.
Many countries, including Australia, are signatories to a Convention that overcomes the double requirement of legalisation and then certification by the Consulate. Member countries issue an “Apostille” which cuts time and expense for the client. 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 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 1961, the Australian authorised affixer of the Apostille is DFAT.