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.

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.

ANZCN Biennial Conference in 2018: Announced

The Australian and New Zealand College of Notaries has informed its members that the 2018 Biennial Conference will be held in Osaka, Japan. The advance notice indicates that the Conference will most likely be held in the first week of October, however final dates are yet to be settled. The last Conference was held in New Zealand in 2016 and provided an invaluable opportunity for local and international notaries to network and exchange ideas about the future of the profession as well as provide a venue for members’ professional development. It is hoped that the next Conference will be well attended and that Australian notaries will have the opportunity to familiarise themselves with the notarial profession in Japan.

ANZCN Biennial Conference 2016: Announced

The Australian and New Zealand College of Notaries has announced that its 2016 Biennial Conference will be hosted in Queenstown, New Zealand, between 6 and 8 October 2016. Attendees at the Conference will be able to claim the full 10 credit units for the mandatory continuing legal education requirements for legal practitioners. Further details will be forthcoming in January 2016. For more information, interested parties should contact the ANZCN directly.

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).

ANZCN 2014 Conference: Honolulu Hawaii

ANZCN 2014 ConferenceThe Australian and New Zealand College of Notaries has given notice of its 2014 Conference, which is to be hosted at the Kahala Hotel and Resort, Honolulu, Hawaii on 23 to 25 October 2014 under the title of “Working with the Americas.” Some notable presentations that will be of interest to Australian notaries public include:

  • Daniel-Sedor Senghor, “A new relationship between civil law and common law notaries” (scheduled for Friday 24 October at 9:30 to 9:50) [this presentation is made from the perspective of the civil law tradition; see the presentation of Ken Sherk the following day at 9:30 to 9:45 for the common law perspective]
  • William Fritzlen, “Authenticating US notarial acts, and dealings with the State and Territory notary administration” (scheduled for Friday 24 October at 10:25 to 11:00)
  • Mia Harbitz, “Civil registration – a  neglected dimension of international development” (scheduled for Friday 24 October at 12:00 to 12:30)
  • Joseph Lukaitis, “Who are you with whom I am dealing?” (scheduled for Friday 24 October at 12:30 to 13:00)
  • Prof. Heather MacNeil, “The evolution of written records and trusting records in a post-modern world” (scheduled for Friday 24 October at 12:00 to 14:00)
  • Tim Reiniger, “Electronic notarisation in the USA” (scheduled for Friday 24 October at 14:30 to 15:00)
  • Ron Usher, “Electronic record keeping” (scheduled for Friday 24 October at 15:00 to 15:30)
  • Ken Sherk, “A new relationship between civil law and common law notaries” (scheduled for Saturday 25 October at 9:30 to 9:50) [this presentation is made from the perspective of the common law tradition; see the presentation of Daniel-Sedor Senghor the previous day at 9:30 to 9:50 for the civil law perspective]
  • Prof. Jeffrey Talpis, “Cross border circulation of notarial acts and other aspects of conflicts of law” (scheduled for Saturday 25 October at 10:15 to 10:45)
  • The Hon. J. D. Rooke, “Organised pseudo legals, including the regrettable involvement of notaries in their documentation” (scheduled for Saturday 25 October at 11:30 to 12:00)

This is not an exhaustive list of the scheduled presentations; the selection has been made only in light of what the Australian notary may find illuminating and informative. Other guest speakers and presenters at the conference will include Dr. Christopher Bernasconi, Wane Baird, Michael Bula, Prof. Kathryn Burns, William Fitzlern, Assoc. Prof. Maria Marta Herrera, Sue Marshall, Milt Valera and Prof. Peter Zablud. The College should be contacted directly for more information as to how local notaries in New South Wales may reserve a ticket for the Conference.