What are notarial services?
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 his or her 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” (see above) (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
- a notary identifies himself or herself on documents by the use of his or her 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 in Australia and internationally
- preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally
- administering of oaths for use in Australia and internationally
- witnessing affidavits, statutory declarations and other documents for use in Australia and internationally
- certification of copy documents for use Australia and internationally
- 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
Although it was once usual for Australian notaries to use an embossed seal with a red wafer, some now use a red inked stamp that contains the notary’s full name and the words “notary public”. It is also common for the seal or stamp to include the notary’s chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use the letters “NP” after their name. Thus a South Australian notary may have “John Smith LLB NP” or similar on his business card or letterhead.
Australian notaries do not hold “commissions” which can expire. Generally, once appointed they are authorized 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. Even judges, who do not hold practising certificates, are not eligible to continue to practise as notaries.
All Australian jurisdictions also have Justices of the Peace (JP) or Commissioners for Affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the Peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore a US notary resembles an Australian JP rather than an Australian notary.