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.

What happens after your document is notarised? Authentication and Apostille in New South Wales

People who have not had any prior experience obtaining a Sydney Notary Public may find the process of notarising their documentation a little confusing. Often, a new client may think that getting the certification from the notary is enough to have their documentation recognised in a foreign jurisdiction (i.e. in a foreign court, tribunal or administrative body). With very few exceptions,* this is not the case. Depending on the country in which the notarised document is to be used, it will almost certainly require further steps before it is ready for presentation. Clients should therefore be very careful that they have followed all the steps in the process before sending their material to where it needs to be viewed or cited.

The Australian and New Zealand College of Notaries has published a very useful guide to notarial practitioners that outlines the basics of what happens after a document is certified and sealed in New South Wales. This is a valuable reminder to practitioners to either (a) properly inform their clients what they are supposed to do after their signature and seal is placed on the documentation, or (b) ensure that the practitioner himself takes the necessary steps to give effect to the notarisation. In essence, the guide provides for the following general information:

1. What is the Purpose of the Notarisation, and why does DFAT need to be involved?

The purpose of notarisation is to establish the authenticity of a document or item, or information contained in the document, or to take  Declaration or witness that a signature belongs to the person signing a document. However, because an overseas authority will have no objective way to ascertain whether a notary who notarises a document is indeed authorised to certify such a document or item, DFAT will be involved in the process by establishing the notary’s authenticity. A foreign court, administrative body or tribunal will accept that DFAT has the power to declare whether or not a notarial seal is genuine because DFAT has a record of all current notaries’ signatures and seals. When DFAT is asked to place an apostille or authentication on the document that has had the notary’s signature and seal applied, that apostille or authentication attests to the authenticity of that signature and seal. This is why it is essential for DFAT to be involved in the final stages of the notarisation.

2. How do I know whether my Document needs an Apostille or an Authentication?

Whether DFAT applies an apostille or authorisation will depend on the jurisdiction (counrty) to which the notarised document will be sent. Countries that have signed the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961) will require the apostille. Generally, all other countries will require an authentication. The ANZCN suggests that these other countries will include China (PRC), Vietnam and most fo the states in the Middle East. It should be remembered that if a notarisation will need an authentication, there is a third step in the process: that document, after obtaining the authentication from DFAT, will then need to be taken to the diplomatic mission of the country it will be presented to, and there it will be receive legalisation.

3. What should I do to ensure that my Document is properly notarised?

Apostilles and Authentications can be obtained by sending the notarised document to DFAT along with a fee. At the date of this post, that fee is set at $80. The fee is payable to DFAT and not the NSW Public Notary. The fee includes binding and return by post, however, if the client wishes to have their documents returned by registered post or express post, a pre-paid envelope will have to be provided along with the document itself (this will not have the effect of reducing the fee payable to DFAT). Providing DFAT with the documentation can be done either “over the counter” by appointment or by post. Clients should allow the authorities a week to process the documentation before it is returned either to the client or the notary.

A Notary Public in Sydney may providing his signature and seal to the client’s documentation, or he may take it upon himself to follow any additional steps so that the documentation is ready to be sent overseas. Either way, the steps above will be essential to complete the task at hand. A notary may chose not to take the additional steps of securing an authentication or an apostille himself so as to keep the costs to the client to a minimum (notaries are entitled to charge for their time and pass on the costs of DFAT onto the client). However, in this circumstance, the client will therefore have to remember that the work of the notary himself constitutes only part of the process of notarisation and acquiring an apostille or authentication will become his own obligation. So that confusion and misunderstanding is avoided, the notary should properly advice and instruct his client what the circumstances require and the client should take heed of this advice before using the notarised document.

For more information about the process involved after the notary has applied his signature and seal to the document, see the following relevant sections:

* In some cases, the requirement of obtaining an apostille may not be necessary. There are Commonwealth countries where the apostille is not needed, such as the United Kingdom, New Zealand and Singapore. It is essential, however, to always check the Notary Public in NSW so that documents are not embarrassingly rejected when they are inspected, relied upon or otherwise used overseas.

Proper notarisation is essential if you want your documentation to be respected by overseas authorities. For more information about whether your material will need an apostille or an authorisation (and legalisation) see your local Sydney Notary so that proper advice can be provided to you. If the notarial act is not recognised by the relevant overseas body, consequences can include dire and long lasting damage to personal and business interests. A Notary in Sydney will be able to provide the necessary services to ensure that your document is treated in the appropriate manner.