ANZCN Practice Note – Notarising Educational Records for Use Overseas

The Department of Foreign Affairs and Trade (DFAT) has proscribed the circumstances under which notarial certificates verifying educational records such as testamurs issued by schools, colleges and universities can be authenticated. This means that notarial certificates which do not comply with the requirements will not be authenticated.

According to a Practice Note issues by the Australian and New Zealand College of Notaries last month, DFAT will refuse to authenticate any certificate that (a) relate to educational records originating outside of Australia, or (b) certificates that do not assert the notary’s verification of the original educational record. The only exception to the latter concerns primary and secondary school documents, as well as documents issued by TAFE and other training college records that include a “nationally recognised training stamp”.

It is possible to have the original educational record authenticated by DFAT. This option means that the notary is not required for the process of verification or authentication. However, this also means that DFAT will affix its apostille or authentication on the original educational record itself. Some people may wish to retain their originals unblemished by DFAT. In that case, the following procedure can be followed with the assistance of a notary:

    1. The client will have to provide written authority to the notary authorising the notary to make inquiries on behalf of the client with respect to the client’s educational records. This is necessary to overcome privacy constraints which may prevent some institutions from disclosing such information.
    2. The Notary will then have to inspect the client’s records and verify their authenticity. In many cases this would involve obtaining access to the educational institution’s online verification system. Alternatively, the institution will have to be contacted and arrangements made for the verification process. Either way, the Notary must be satisfied that the documents he is notarising are true and correct.
    3. The Notary will have to draft a certificate which is specifically phrased such that the notary has independently and personally verified that the educational record is a true and accurate record of the original that it purports to be an original.

The ANZCN has provided a template notarial certificate to its members, which can be used in the case of a client wanting to have his educational records authenticated but who does not want his originals physically compromised. Also provided with this Practice Note is a list of contacts for key educational institutions which can assist in the verification of their records.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who require their educational records notarised for use overseas are encouraged to contact a local notary via this website.

ANZCN Practice Note – Dealing with Documents Written in a Foreign Language

Since notaries are approached by client who need to have documents certified for use overseas, it is not uncommon that those original documents will be drafted in a foreign language. A recent Practice Note issued by the Australian and New Zealand College of Notaries (April 2019) addresses the problems that a notary may encounter in these situations.

The Practice Note outlines four general cases which deal with a foreign language document: Where the Notary and his client are both familiar with the langue in which the document is drafted; where only the client is familiar with the language; where neither the Notary nor his client are familiar with the language; where the document being notarised is bilingual.

The Language is Known to both the Notary and the Client

The key point is that the Notary is satisfied that his client “understands the meaning and agrees with the contents of the foreign language document.”

Our additional comment: In the case where both the Notary and the client are familiar with the language in which the document is produced, the practice Note assumes that the Notary will have some working knowledge of the relevant legal provisions governing the use of the documents being notarised. However we must remind readers that this too can be a fraught with risks and difficulties (for more information, please refer to our article “Dealing with Foreign Documents”)

The Language is Known to the Client Only (not the Notary)

In the event where the Notary has no knowledge of the language in which the document is drafted but which his client claims to be familiar, the notary will have to satisfy himself that the client’s claims are true. The key point here is that even if a client is proficient in the language in which the document is prepared, oftentimes people may overestimate their ability to interpret technical or legal material. The Practice Note suggests that the Notary:

    • Might ask the client to read the document in front of him.
    • Should ask the client whether the document is understood.
    • May engage in a “gentle cross-examination” to ascertain whether the client indeed does understand the meaning of the document.

The practice Note further suggests that an additional paragraph may be included in the Notary’s certificate, to the following effect:

“AB declared to me that he/she was fluent and literate in the XYZ language and AB also declared to me that he/she had read and understood and agreed with the content of the attached document before signing the document in my presence.”

Our additional comment: The Notary may ask to go through the document a paragraph at a time and ask the client to interpret the paragraph, and whether there is any ambiguity or uncertainty in its terms or provisions. The Notary should be wary of moments where the client may appear confused or uncertain. In these situations, it may be advisable to have the client obtain a translation of the document, or seek advice from a legal professional who is competent to provide formal advice on the meaning of the document to be notarised.

The Language is Known to the Notary Only (not the Client)

In this situation, the document must be translated. The Practice Note suggest that this can be accomplished either through an interpreter who orally translates the document in the presence of the Notary, or through an accredited translation service which will provide a written translation and accompanying affidavit.

In the case of the oral translator, he will have to make a declaration to the Notary that he is fluent and literate in the relevant language, and that declaration will form part of the Notary’s certificate. Moreover, the fact that the document was translated in this way must also appear in the client’s signing clause.

In the case of the formal written translation, the translated version of the document, as well as the translator’s affidavit (and of course the foreign language original) must be included as exhibits in the notarial certificate.

Our additional comment: While obtaining a written translation may be more costly and time consuming, it is preferred on the grounds that it represents a clearer record of the manner in which the foreign language document was executed and notarised.

The document being Notarised is Bilingual (Drafted in Two Languages)

In this situation, where the document being notarised may be formatted in a way such that its provisions are arranged in two columns, one in English and another in a foreign language, it is important for the Notary to assert his and his client’s language proficiency. The Practice Note suggests the following paragraph be included into the final certification:

“AB has signed the attached document before me in the English version only understanding the English version to be a true and correct translation of the XYZ version and AB has declared to me that he is not fluent in the XYZ language and only fluent in the English language and I certify that I have witnessed the signature of AB on the attached document in the English version only and I confirm that I have no knowledge of the XYZ language.”

The key point here is that neither the client nor the Notary should assume that purported translations in bi-lingual foreign documents are accurate. Omitting the kind of language status paragraph from the notarial certificate may result in a situation where the foreign language component of the document is relied upon by another party in the foreign jurisdiction, and if that component of the document does not accurately correspond with its English version, the client (and the Notary) may be exposed to an unintended liability.

The Practice Note recommends that practitioners refer to Prof. Peter Zablud’s Principles of Notarial Practice (2nd ed.; The Notary Press, 2016), specifically chapter 10 on “Interpretations and Translations”. Or information on how to obtain a copy of this invaluable text, please direct your inquiries to the ANZCN directly.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who require a foreign language document to be notarised for use overseas are encouraged to contact a local notary via this website.

ANZCN Practice Note – Requirements for Authentication under the Apostille Convention

Notaries must be able to inform their clients whether or not the process of notarisation will involve an apostille, or an additional step involving an authentication or legalisation. The recent Practice Note issued by the Australian and New Zealand College of Notaries (ANZCN) states that:

“In every case, where a notary provides a notarial certificate or attestation, he […] should ensure that the notarial client is aware of the further need for the certificate to have an Apostille affixed or for authentication and consular legalisation to be carried out. In the case of some Commonwealth countries neither step is required.” (p1 ¶ 2)

For the sake of convenience, the Hague Convention Abolishing the Requirements for Legalisation for Foreign Public Documents (5 October 1961) has removed the need for legalisation, which has been known as “chain certification”. However, this only applies to jurisdictions that have signed up to the Convention. Other jurisdictions which have not signed up to the Convention still require the additional step before the notarial act is completed.

As at September of 2017, 155 jurisdictions have signed up to the Convention. In all states of Australia, the Department of Foreign Affairs and Trade is the authority under the Convention to issue apostilles and authentications, as the case requires. This list will likely continue to grow in coming years, and notaries must ensure that they are familiar with the appropriate process for their notarial act.

The Hague Convention website is updated when new jurisdictions subscribe to the scheme which removes the need for “chain certification”. Australia acceded to the Convention on 11 July 1994 and it entered into force on 16 March 1995. Australian Notaries should note however that major jurisdictions such as the People’s Republic of China are not signatories to the Convention at this time, nor are many countries to our near-north.

Notaries should also note that some Commonwealth countries do not require authentication or the apostille, and a straightforward act of notarisation is sufficient for it to be considered probative. The ANZCN suggests that notaries consult with the commentary in the Second Edition of Prof. Peter Zablud’s leading text Principles of Notarial Practice and in particular Appendix 14, “Authentication Requirements for Australian Notarial Acts.” The ANZCN Practice Note makes I explicitly clear that:

“In no circumstances and on no account, should a notary ever purport to complete or sign an Apostille or Authentication.” (p 3 ¶ 4)

Out additional comment: This Practice Note may seem trite and obvious to the experienced notary, however oftentimes it may be beneficial to reinforce key concepts and principles of notarial practice. Notaries in the common law jurisdictions provide an invaluable service to clients dealing with business and other personal affairs across jurisdictions and between different countries. The purpose and function of the Apostille and Authentication is to confirm that the notary and his seal is legitimate. For jurisdictions that are not signatories to the Convention, the process of legalisation by a Consular official of the country in which the notarial certificate is intended to be used essentially authenticates DFAT’s authentication of the notary’s seal. Of course, it is impossible for a notary to authenticate his own seal. Clients must be advised which steps are necessary for their particular notarial act to be seen as credible in the eyes of a foreign court or administrative body.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who need documents to be notarised for use overseas in a court, administrative body or for business purposes are encouraged to contact a local notary via this website.

ANZCN Practice Note – Dealing with Foreign Documents

The Australian and New Zealand College of Notaries has circulated a Practice Note prepared by Prof. Peter Zablud and Michael Bula (20 April 2017) concerning the treatment by Australian Notaries of “authentic form notarial acts” drafted in civil law jurisdictions such as France, Germany, Italy or Spain. This type of notarial act will take the form of a “single narrative instrument written by the notary in the first person which sets out or perfects a legal obligation and/or records some fact or thing.” [p. 1 ¶ 2] This authentic form recalls what is known in the New South Wales notarial practice as a “notarial act in the private form”, i.e. a document that is wholly drafted by the public notary himself.

The Practice Note states that the authentic form of the notarial act is at the core of the civil law country’s legal system. Accordingly, there are very precise rules and regulations governing the manner in which notaries conduct their practice and provide their services. A notary must “certify in the notarial act itself that the Appearers well understand the transaction(s), their rights and obligations and in appropriate cases, the consequences of not meeting specific obligations.” [p. 1 ¶ 6] France is cited as an example, which has the following requirements for the drawing of a proper and valid notarisation:

  • The document must be read to the relevant parties or their legal representatives (the “Appearers”).
  • The applicable law must be explained to the Appearers.
  • Any questions that the Appearers ask of the notary must be answered.

The point being stressed by Prof. Zablud and Bula is that “failure by a notary to meet his or her responsibilities or to comply with prescribed formalities can render an entire transaction null and void.” [p. 1 ¶ 7]

Example: Foreign Power of Attorney— Authentic Form — Australian Notary Witnessed Signature — Did not Comply with Foreign Legal Requirements — Notarial Act Defective — Set Aside

The Practice Note illustrates how a local notary’s mishandling of a notarial act can lead to serious legal consequences for his client. An example involves a power of attorney drafted by a French notaire but which was presented to an Australian notary who was not familiar with the French language. The purpose of the document was to secure a guarantee for a loan on the purchase of property in France. The Australian public notary merely witnessed the signature of his client as it was applied to the document. He did not, however, know that the document was in the authentic form nor what that entailed. As a consequence, the document was not read to the client, its particulars were not discussed with the client, and the local notary did not execute the document as the author of the notarial act. The bank sought to enforce the guarantee after a default in a payment for the property. In a dispute over the validity of the guarantee, the French civil court held that the guarantee (and therefore the mortgage) ought to be set aside for being defective.

Important Lessons:

Reflecting on the example cited above, the Practice Note warns that Australian public notaries should be wary when they are presented with foreign language documents that they may not understand; these document may import specific legal obligations that might not be immediately apparent to the local practitioner. Moreover, in the event that an Australian notary public is asked to witness a power of attorney or other like document, he should ascertain beyond any doubt whether that document is drafted in the authentic (public) or private form, and precisely what he can or should do. Suggested steps include:

  • Contact the drafter of the document and make direct inquiries about its nature. The local notary can request whether or not the document can be redrafted in private form, thus allowing it to be notarised by way of a notarial certificate followed by an apostille or legalisation.
  • Have the document translated by an accredited translator.
  • If still in doubt about one’s own legal obligations, refer the client to a consular officer of the country in which the document, once notarised, is to be used, or a lawyer who is fluent in the language in which the document is drafted. [p. 2 passim]

For more general information on related issues, see the following sections on our website:

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Should you need a foreign power of attorney notarised by a Sydney Notary Public, you are welcome to contact us for more information on how we can help having your documentation executed properly. Services can be provided to you directly in the Sydney CBD region and surrounding suburbs, including Broadway and Surry Hills. A Public Notary can also come to you if you or your business is located in the north shore, including North Sydney, Artarmon, Kirribilli, St Leonards, Lane Cove, Chatswood, Willoughby and surrounds. For more on our availability, see our Availability page.

ANZCN Practice Note – International Wills

The Australian and New Zealand College of Notaries has circulated a Practice Note concerning the execution of notarial certificates for International Wills and Testaments. The Note, which was prepared by Prof. Peter Zablud, explains that on 10 March of this year, the Convention Providing a Uniform Law on the Form of an International Will (Washington, D.C., 1973) has entered into force in Australia.

New South Wales has enacted legislation, namely the Succession Amendment (International Wills) Act 2012 (NSW) which gives effect to the Convention‘s operative provisions. The Annex to the Convention – which outlines the procedures for the drafting and execution of an international will – has therefore  been incorporated into the law of NSW. The form of notarial certification has therefore been established under the present regime.

Prof. Zablud notes that the Convention does not aim to harmonize the laws relating to the drafting and execution of international wills, rather it seeks to provide “an additional form […] which if employed, would dispense to some extent with the search for the applicable law” (Preamble to the Convention). The Convention‘s Explanatory Note reflects this purpose, that the new process and form “simply proposes, alongside and in addition to the traditional forms, another form which it is hoped practice will bring into use mainly but not exclusively when in the circumstances a will has some international characteristics” (per Jeab-Pierre Plantard, Rapporteur).

The international characteristics contemplated in the Explanatory Note include: the fact that the will is made in a jurisdiction which is not the nationality of the person signing the will or his domicile or place of residence; the fact that some of the property subject to the operations of the will are located in different jurisdictions; the fact that some of the beneficiaries under the will are located in other jurisdictions other than the one in which the will is made.

The International Will will have to aspects: the first is the will itself, and the second is the notarial certificate which is in the form or substantively in the form of the template established under the state law (Prof. Zablud notes however that under the new law, the certificate is to be executed by an “authorised person” and that this can be a solicitor entitled to practice law in the state as well as a Notary Public).

Other procedural and legal matters are outlined in the Practice Note. Individuals who are seeking to make or execute an International Will are urged to seek professional assistance in relation to the proper form and procedure. Contact us for more information as to how we can assist.

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

If you require an international will notarised by a Sydney Public Notary, we may be able to come to you if you are located in the Northern Sydney region or Central Business District and surrounds. For more notarial service locations, see our Availability page. Be sure that all parties have at least two forms of photo identification available so that the notarial act can be applied to the international will. An international will can be certified by a Notary Public in North Sydney, Chatswood, Lane Cove, Artarmon, St Leonards, Crows Nest, Roseville, and other suburbs. For more information, contact us for a quote via the email form on this webpage or call us on the phone number provided.

ANZCN Practice Note – Record Keeping Guidelines

The Australian and New Zealand College of Notaries has issued a Practice Note concerning the minimum requirements for the notarial practice in relation to the keeping of records. The Practice Note, which has been circulated to members of the College today, states that the following matters should be retained by Notaries Public:

  • The date that the notarial service was offered to the client;
  • The name and address of the client to whom the notarial service is being provided;
  • The particulars of the service, described in concise terms;
  • The manner in which the client was identified by the notary, including the identification particulars;
  • In the event that the client was acting in a representative capacity (eg. if the client was a corporate entity and the person giving instructions to the notary was a director of that company) then evidence that establishes that the person was legitimately acting in his purported representative capacity must also be recorded;
  • The basis upon which an original document was certified;
  • Any unique number (such as an index number or serial number) of any document that was connected to the notarial act or certificate, where that document or copy thereof is to be retained by the notary in his protocol;
  • The details of any non-notarial services provided to the client which were adjunct to the notarial service;
  • Fees charged for services rendered;
  • Any special notes or notations in relation to the notarisation or the client.

Notarial records can be retained electronically or in hard copy format, however these must be kept in a secure location and treated according to how a legal practitioner would be expected to treat sensitive and confidential documents.

Importantly, the College recommends that:

  1. Notaries should retain records for a period of twelve years in relation to marine protests, records relating to notarial intervention and originals and copies of authentic form acts;
  2. Recommendation 1 is subject to the individual State and Territory regulatory requirements for notarial practices in relation to the retention of records.

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

In line with the requirements of notarial practice in New South Wales, as outlined in the Notarial Practice Course (College of Law, “Continuing Professional Development: Seminar Papers: Notarial Practice” #CN130703_NOT1, 30 July 2013, at p. 7) clients should expect that a copy of the notarial act or certificate which is drafted, produced and executed by the notary will be retained for the notarial record.

ANZCN Comment – Fraudulent Notarial Acts and Certificates

The Australian and New Zealand College of Notaries has circulated a Comment concerning problems and dangers that some practitioners encounter when they are presented with spurious or nonsense documents for notarisation.

The Commentary encloses an example of a document purporting to be a “Notarial Protest For Non-Payment – Non-Performance of the Bill’s Irrevocable Prerogative Writ of Commands” which is allegedly drafted pursuant to the Bills of Exchange Act 1909 (Cth). Prof. Philip Hamilton, who prepared the Commentary for the College, urges notaries to take care when they find themselves being asked by their clients to sign and seal documents that appear to be suspicious.

From the outset, there is in fact no such creature as a “Prerogative Writ of Commands” (ANZCN Comment at ¶¶ 2, 10(g)). Moreover, while the Bills of Exchange Act applies to defined bills of exchange, inland bills do not require to be protested; yet the suspicious document that the notary was asked to notarise appeared to concern parties all of whom appear to be residents within the Commonwealth. Only foreign bills of exchange can be protested, and within 48 hours after being noted (ibid at ¶¶ 4-7).

Another thing that should alert the notary to the potential danger of executing and sealing a suspicious document is that it is drafted in a manner which suggests it is the act of the notary himself. Prof Hamilton notes that “[b]y virtue of this, the notary is not merely attesting that [the client] has signed it, but is adopting it as [his], and is asserting the truth and accuracy of its contents” (ibid at ¶ 1).

Furthermore, the suspicious document, which was not drafted by the notary to whom it has been presented, purports to narrate a series of alleged factual events, which veracity the notary cannot possibly be aware (ibid at ¶ 11). In addition, the suspicious document includes further argumentative and unprofessional text which appears to go to the powers and authority of certain persons addressed in the narrative; this is then followed by “the crunch”: a claim for payment (ibid at ¶ 12).

Prof Hamilton identifies that “the entire thrust of this document is to grab onto the coattails of the Bills of Exchange Act because it uses the grossly misunderstood term ‘protest’ in relation (solely) to foreign bills of exchange” (ibid at ¶ 14) but that Public Notaries:

“[S]ould understand that protests of bills of exchange and ships’ protests are merely antiquated methods of recording a sequence of events so that, in any proceedings that arise from the facts, there is immediately available an authoritative statement of the essential facts.” (ibid at ¶ 15)

The Commentary warns notaries that the use of similar documents in the United States has resulted in criminal prosecution of  the guilty parties as well as their advisers and that some of these have had lengthy prison terms imposed at sentencing (ibid at ¶ 16).

The fact that the suspicious document makes reference to yet another document, while that other document is not attached or exhibited (ibid at ¶¶ 8-10) should raise additional concerns in the mind of the notary. A question that should naturally arise is whether or not that other document in fact exists, or whether it is itself defective or spurious if it does exist. Prof. Hamilton concludes that:

It is, in our opinion, only a matter of time before documents such as the present come before the superior courts in Australia, at which point notaries who have permitted the malefactors to engage their services by preparing, signing and sealing such patently fraudulent rubbish will be inevitably found to have been instrumental in perpetrating the fraud, which traduces the fame and office of the notary public.” (ibid at ¶ 17)

In light of the dangers that may arise when a notary seals a document that may be nonsensical or fraudulent, especially where that document is drafted as if it were issued by the notary himself, the risk of a potential finding of professional misconduct against the notary is a very serious matter. Where the notary’s signature and seal attest to the veracity of the document being notarised, “[c]ritical appraisal of every document is vital” (ibid at ¶ 19).

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Additional Comment

In light of the issues described above, some questions that the notary may wish to ask his potential client before offering his services (in circumstances similar to those outlined in the College’s Commentary above) may be:

  1. Why does the client require the document to be notarised?
  2. Who prepared the document that is requested to be notarised?
  3. Has the client received legal advice in relation to the document to be notarised?
  4. Has the client received any other advice in relation to same, and if so, from whom?
  5. Where are the other documents which are referred to in the narrative?
  6. If the other documents are unavailable, why are they unavailable?
  7. Who is attesting or declaring to the veracity of the narrative in the document?
  8. Why does the client not prefer to swear or affirm an affidavit or statutory declaration in respect of the narrative?
  9. Are there any proceedings on foot, whether legal or administrative, in relation to the subject matter in or of the document to be notarised?
  10. If there are proceedings on foot or being contemplated, is legal counsel involved, and if not, why not?
  11. If legal counsel is involved, is he aware of the fact that notarisation of the document is being requested, if not, why not?

In the words of Prof. Hamilton, “[w]e stress yet again that the notary has no duty to sign whatever is put before […] him” (at ¶ 19).