What is a notary public?
In Australia, a notary public is a specially qualified lawyer who is authorised to perform notarial acts for official use overseas.
A notary public is entitled to do all the following notarial acts:
- witness signatures and certify copies;
authenticate documents to be filed or registered in a foreign country; - take affidavits for use in a foreign court or foreign jurisdiction;
- administer oaths and take declarations as evidence in a foreign court;
- prepare deeds, agreements and other documents relating to foreign property conveyancing or succession;
- prepare deeds and other documents intended to take effect in the Commonwealth overseas or in foreign countries;
- verify and attest the proper execution of documents, contracts and powers of attorney;
- prepare mercantile documents; and
translate and verify the translation of documents in any foreign language into the English language and vice versa.
How is a notarial act performed?
Any certificate, attestation, note, entry, endorsement, or instrument made, or signed and sealed by a notary public in the execution of the duties of his or her office is a notarial act.
A notary public performs the notarial act by (a) preparing a notarial certificate that certifies or verifies some fact or thing has been done, and (b) authenticating the notarial certificate with the notary’s signature and official seal.
In some cases, the notary is not required to prepare a notarial certificate and the notary’s signature and official seal is recorded directly on the document itself. These cases usually apply when the document concerned is a “public document”, being a document issued by a government or official agency.
Is just a notarial act sufficient for official use overseas?
Where a notarial act is validly made in Australia, whether or not it may be received in evidence in the foreign country without further authentication depends on the laws and rules of that jurisdiction.
In most countries, additional steps are required to be undertaken by the notary (or by you) to complete the authentication process so that the notarised document or notarial certificate can be used overseas:
- The notarised document or notarial certificate must be legalised by a competent authority in Australia, which is currently the Department of Foreign Affairs and Trade (DFAT);
- The legalised document or certificate must then be attested by the consulate of the country or territory in which the document or certificate is to be used.
For more information on the DFAT legalisation and Embassy attestation process, check out our Ultimate Guide to Attestation.
Where does the authority of a notary public come from?
The powers of a notary public are based on laws derived from the United Kingdom, and authority is granted by way of state legislation.
Generally, a notary public in Australia may exercise all powers which may be lawfully exercised by a notary public in the United Kingdom. In all jurisdictions except NSW and QLD, specific provision is made as to the functions of a notary public:
- ACT: Notaries Public Act 1984 (ACT), section 12 (person may exercise and perform the powers and functions of a notary public);
- NT: Public Notaries Act 1992 (NT), section 7 (powers of a public notary include certifying documents to be filed or registered in a foreign country, taking affidavits for use interstate or internationally, protesting, or noting protest of bills of exchange or bills of lading, verifying documents and taking affidavits to comply with the requirements of a foreign law, and the exercise of the powers and authorities that are usually exercised by a public notary in the United Kingdom);
- SA: Notaries Public Act 2016 (SA), section 6 (notary public has all the powers and authorities (including the power to take affidavits) exercisable by law or custom by notaries public);
- TAS: Notaries Public Act 1990 (TAS), section 9 (notary public may exercise all the powers and authorities that may lawfully be exercised by a notary public in the United Kingdom);
- VIC: Public Notaries Act 2001 (VIC), section 10 (public notary has the same powers, authorities, duties and functions as a holder of the office of notary public or public notary had immediately before the commencement of the Act);
- WA: Public Notaries Act 1979 (WA), section 15 (general notary public may exercise all the powers and authorities which may be lawfully exercised by a notary public in the United Kingdom or in Western Australia throughout the State.
Are there any limitations on a notary's powers?
Notaries can only perform their function for foreign purposes. Further, in NSW, a notary public must not carry out notarial work for their employer or a client of their employer unless the notary public is employed by a law practice.
How Authentifier can help you
Authentifier’s experienced team of Notary Public experts can advise you on the notarisation requirements for your documents and provide document notarisation and authentication services anywhere in Sydney.
For the most current and detailed information, get in touch with Authentifier today.
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