People are often perplexed when for some reason, usually a transaction in a foreign country, they are obliged to seek the services of a notary public. What is a notary public? Is this the same as a public notary? Who are these people?!
The expressions notary public and public notary are generally interchangeable and, commonly, reference is made simply to a notary.
The office of a notary public has its origins in the Roman Empire, and started with respected scribes who recorded public acts and documents, often using a special form of shorthand notae Tironianae. Such a scribe became known as a notarius. Private scribes, who recorded documents for private individuals rather than the public record, were known as tabelliones, but eventually these functions became merged and practitioners providing services for private individuals became known as notaries. The Roman Church had the function of appointing notaries, and many notaries were clergy.
Notaries did not become established in England until about the 13th century. The Archbishop of Canterbury was authorised by the Pope to appoint notaries, and in England a notary is still appointed, with the authority of the Archbishop of Canterbury, by the Court of Faculties of the Archbishop of Canterbury.
One of the reasons that notaries emerged much later in England than on the Continent is that, under the common law of England, no particular formality is generally required for a contract between parties. This may be contrasted with requirements in Civil Law countries where the concept of a notarial act exists. A notarial act in public form requires a document (which may contain an agreement between parties, which may be signed and, where necessary, sealed by the parties in the presence of the notary and possibly witnesses). It is then signed and sealed by the notary, thereby making the document an act of the notary or a notarial act, which gives it force. There is no similar concept in English and Australian law.
How are Notaries Appointed in Australia?
In the States and Territories of Australia, notaries public are appointed, other than in Queensland, under legislation in the State or Territory. In South Australia, the legislation is found in Sections 91-94 of the Legal Practitioners Act 1981. The appointment is made by the Supreme Court, and the practitioner is admitted to the Role of Notaries. This is, however, much more mundane than an appointment in the Court of Faculties of the Archbishop of Canterbury. Queensland is the only State of Australia in which notaries are still appointed in the Archbishop's Court.
To be appointed as a notary in South Australia and elsewhere, an applicant must usually be a legal practitioner and be able to demonstrate knowledge of the practice of a notary public, and a need for appointment.
What Do Notaries Do?
No one is quite sure exactly what notaries are supposed to do. Historically, in English law, notaries have had a wide range of functions. There is, however, no definition or statement of the role of a notary public. A notary's work often involved protests of bills of exchange or ships protests, and notaries undertook a large number of functions in relation to shipping and international trade.
In Australia now, probably the main function of notaries public is to witness and certify documents and matters for use overseas. With continued growth in world trade and movements of people around the world, demand for the services of notaries is also growing.
Legalisation and Apostilles
Formerly, a country in which a document executed in another country was received would be likely to require the document to be legalised. Legalisation requires a chain or process of authentification and verification of the authorities, signatures, appointments and all other matters necessary to ensure validity of the document.
On 5 October 1961 a convention known generally as the Hague Convention (or Hague Apostille Convention) came into being. This is a convention of the Hague Conference on Private International Law (an intergovernmental organisation convened in 1893 in the Netherlands) and its full title is the Hague Conference's Convention of 5 October 1961, Abolishing the Requirements of Legalisation for Foreign Public Documents.
As the name implies, the Hague Convention was intended to do away with the requirements for legalisation. Most countries have now accepted the Hague Convention, but some (eg China) still require legalisation.
The Hague Convention introduced an instrument known as an Apostille. An Apostille is a document given under the signature and seal of an official of a government and is recognised by the country which receives the Apostille. In Australia, the Department of Foreign Affairs & Trade issues Apostilles.
An Apostille effectively certifies the appointment of a notary public . Attached to the Apostille is a document which must be signed and sealed by the notary public, and contain any certificate required from the notary public. Accordingly, it is the notary public who certifies and, where appropriate, witnesses or authenticates the document that is attached in accordance with requirements of the country that is to receive the document. The sole purpose of the Apostille is to verify the appointment of the notary.
A document that has been notarised, and to which an Apostille is attached, can look quite impressive, with the combination of seals of the Department of Foreign Affairs and the notary, and binding in official green tape.
The Seal of a Notary
A notary public must have a seal. Today, these seals are normally metal seals with the name and place of appointment of the notary inscribed. The seals are applied to documents, often with the use of a red adhesive paper seal to take the impression. For the Department of Affairs to provide a Apostille for a notary, it is necessary for the notary to produce evidence of the appointment of the notary from the appropriate Court and a copy of the signature and seal of the notary, so that these can be verified by the Department in giving an Apostille.
Some countries, particularly those which will not accept an Apostille under the Hague Convention, will recognise the appointment, seal and signature of a notary, if these have been registered by the notary at the Embassy of the foreign country.
What is Required for Notarisation?
A notary public is often required to do much more than simply witness a signature to a document that is required to be "notarised". It is necessary for the notary to examine the documents to be notarised and ascertain precisely what is required. This will often (but not always) require the notary to witness signatures to the document, however (depending on the requirements of the receiving country) notarisation may also require the notary to:
- verify the identity or citizenship of a person signing by sighting passports or other means of identification, or to be able to state that the person is known to the notary;
- verify the incorporation of a company;
- verify whether directors of a company have been validly appointed, and are authorised to sign a document on behalf of the company;
- verify that a company has power to execute a document.
These are only a few examples and some foreign countries can require a complex range of certifications and verifications, even for comparatively simple documents like powers of attorney.
The Process and Fees
As well as the primary documents for notarisation, it is often necessary for a notary to undertake a process of research and verification and to draw up appropriate execution clauses, certificates and other documents to accompany the primary document.
Because of the potential complexities, the process of notarisation can take some time and the fees for notarisation of documents are therefore often more than the fee for a quick attendance to witness a document. Charges are normally made at the usual rates of the legal practitioner/notary performing the notarisation.
Fees are also charged by the Department of Foreign Affairs for an Apostille. The fee is $60.00 for an Apostille for a single-sided one page document, plus $20.00 binding fee for a double-sided document or a document of more than 2 pages. Countries that require notaries to be registered at their Embassy and , in turn, a certificate of the Embassy to certify the appointment of the notary (rather like an Apostille) also charge fees.
The concept underlying the appointment of notaries (initially by ecclesiastical courts, and now by other Courts), and the recognition accorded by the Hague Convention, is that a notary is a person of the utmost good faith and, accordingly, recognition is given by foreign countries to acts and certificates of notaries. This system has worked well to facilitate international trade and dealings, and a notary public will take these responsibilities seriously, without "cutting corners".
If you require the services of a notary, you should let the notary have, as soon as possible, the documents to be notarised (or copies) together with any instructions or requirements received from the country or party requiring the notarisation, and be prepared to produce supporting documents and identification where necessary. This will allow the notary to determine in advance precisely what is required for notarisation and, hopefully, make the process quicker, easier and more cost-effective for you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.