A notary is a lawyer who is licensed by the government to witness and certify signatures and documents for overseas jurisdictions.
There are three significant differences between notaries and other lawyers.
- the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it is their duty is to ensure that the transaction that they conclude is fair to both sides.
- a notary will often need to place and complete a special clause onto or attach a special page (known as an eschatocol) to a document in order to make it valid for use overseas.
In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an “authentication” or an “apostille” (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
- a notary identifies themselves on documents by the use of their individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the authenticity of a document.
Their principal duties include:
- attestation of documents and certification of their due execution for use internationally
- preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally
- administering of oaths for use internationally
- witnessing affidavits, statutory declarations and other documents for use internationally
- certification of copy documents for use internationally
- exemplification of official documents for use internationally
- noting and protesting of bills of exchange (which is rarely performed)
- preparation of ships’ protests
- providing certificates as to Australian law and legal practice for use internationally
To “notarise” a document generally means the performance by a notary of a series of steps, which may include but is not limited to the following:
- Identifying the person appearing before the notary by reference to significant proofs of evidence including passport, driving license, birth certificate, diplomatic documents etc.
- Where significant rights may accrue by reference to the identity, signatures may also be verified, recorded and compared
- Recording the proof of identity in the notarial register or protocol
- Satisfying the notary that the person appearing is of full age and capacity to do whatever is intended
- Taking an affidavit or declaration and recording that fact
- Taking detailed instructions for a protest of a bill of exchange or a ship’s protest and preparing it
- Recording the signature of the person in the register or protocol
- Taking an acknowledgment of execution of a document and preparing a certificate of acknowledgement
- Preparing a notarial certificate as to the execution or other step
- Sealing or stamping and signing the document
- Recording all steps in the register or protocol
- Delivering the completed original to the person appearing
- In some cases, retaining a copy of the document in the register or protocol
- Charging the person appearing a fee for the service