What is a Notary?
A Notary Public (or notary or public notary) in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are shown below as well as to perform certain other official acts depending on the jurisdiction. Any such acts are known as "notarial acts".
The term Notary Public only refers to common-law notaries and should not be confused with civil-law notaries. The role undertaken by notaries in civil law countries is much greater than in common law countries. At common law, notarial service is distinct from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries.
A Notary, in almost all common law jurisdictions is a practitioner trained in the drafting and execution of legal documents. Notaries traditionally record matters of judicial importance as well as private transactions drawn up with professional skill or knowledge or events where an officially authenticated record is required.
There are three significant differences between notaries and other lawyers:
- Notary’s duty is to the transaction as a whole, and not just to one of the parties. A Notary may act for both parties to a transaction as long as there is no conflict between them, and if so it their duty is to ensure that the transaction that they conclude is fair to both sides.
- Notary will often need to place and complete a Notarial Certificate to a document in order to make it valid for use overseas. For some documents to be used in 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, (DFAT).
- 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.
Who is a Notary
The Supreme Court of SA has said that a Notary should be a legal practitioner of several years standing. The duties and functions of a Notary Public and the preparation of a notarial act require a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.
Australian notaries are appointed and authorised to act as a Notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain States, for example, New South Wales and Victoria, they cease to be qualified to continue as a Notary once they cease to hold a practising certificate as a legal practitioner.
Roy Hasda has had extensive experience, since being admitted as a lawyer in 1978 and his appointment as a Notary in 1986. He speaks Italian and French. Roy’s background allows him to understand and relate to different national and religious cultures.
Roy has experience in the following areas of law:
- Notary Public
- Wills and Estates
- Personal Injury
- Property Damage
- Insurance Law
- International Humanitarian Law
Roy is a:
- Member of The Australian and New Zealand College of Notaries
- An individual member of the International Union of Notaries
- Member of the Notaries Society of SA
- Barrister and Solicitor of the High Court of Australia
- Barrister and Solicitor of the Supreme Court of SA
- A Commissioner for Taking Affidavits in the Supreme Court of SA
- Graduate of the Asia Pacific Military Law Centre
- Graduate of the United Nations Institute for Training and Research.
Notarial fees will generally be charged at the rate set out in Notarial Terms of Engagement which we are obligated to have you peruse and sign at your first appointment. No estimate of fees will generally be provided. However, any estimate that is provided must be taken as an estimate only, and not a quotation and we will not be bound by any such estimate.
What does a Notary do
The first and foremost function of a Notary is to establish and verify the identity of the person who requires Notarial Services. This will involve normally, some form of photo identification document such as a passport or current drivers licence.
A Notary’s main duties for use in Australia and internationally include but are not limited to:
- attestation of documents and certification of their due execution;
- preparation and certification of powers of attorney, wills, deeds, & contracts;
- administering of oaths;
- witnessing affidavits, statutory declarations and other documents;
- certification of copy documents;
- exemplification of official documents for use internationally;
- noting and protesting of bills of exchange;
- preparation of ships' protests;
- providing certificates as to Australian law and legal practice;
Documents certified by notaries are sealed with the Notary's seal or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by them.
Some Specific Considerations
a. Overseas Students
One issue that overseas students may not consider, not unless and until they return to their home country, is local recognition of their Australian obtained educational records and qualifications. Many options are available or recognised in countries all over the world, but the requirement may be as simple as obtaining an apostille (see below) from DFAT.
As an experienced notary public, our Notary can assist clients, who were once overseas or local students in Australia, to notarise their educational qualifications and obtain an apostille on their behalf.
b. Australian citizens who want to marry Overseas
Will generally need to provide the foreign country with a sworn declaration witnessed by a Notary stating that, according to the Australian law, there is no impediment to the marriage. The Notary can certify the identity and Australian citizenship of the applicant, as well as following the requisite format required for specific countries.
c. Overseas Powers of Attorney
Many immigrant families when arriving in Australia still have property in their country of origin. In most cases when these families (either naturalised Australians or not) wish to dispose of their overseas assets a Power of Attorney duly Notarised and in most cases in the language of the foreign country will be necessary.
As an experienced notary public, our Notary can draft foreign Powers of Attorney to facilitate the disposal of these overseas assets, according to the law of that foreign country and in the language of that foreign country.
Embassy or Consulate Legalisations
Overseas authorities will often request that you have your Australian documents (for example a birth certificate) ‘authenticated’ or ‘apostilled’. Both these services are provided by DFAT.
Authentication verifies a signature, stamp or seal on certain types of Australian documents. Once verified, DFAT stamps and signs the document confirming that they have verified the signature or seal on the document.
Apostilles are basically authentications but are only used in some countries. In countries subscribing to The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents or Apostille Convention, the only further act of certification required is the Apostille.
Whether an Authentication or an Apostille is needed depends on the country being dealt with.
Roy’s Notary details are recorded in the official register maintained by DFAT which means that documents notarised by him and requiring an Apostille will be authenticated by DFAT within 24 hours.
For countries which are not subscribers to the convention, an "authentication" or "legalisation" must be provided by the Foreign Affairs Ministry of the country from which the document is being sent or the Embassy, Consulate-General, or consulate of the country to which it is being sent. Apostille Certificates are unacceptable in countries which have not ratified the Hague Convention.