News

August 25, 2016

A notary public, also known as a public notary or simply, notary, is most often a practicing attorney or solicitor appointed by a State or territory Supreme Court and given statutory powers.

Their role is to perform a wide range of administrative functions, including preparing, witnessing, administering, certifying and/or notarising originals and copies of legal documents for use within Australia and abroad.

Such documents are typically:

• Wills

• Property deeds

• Contracts

• Powers of attorney

• Oaths and affidavits

• Statutory declarations

More specifically, this may include:

• Corporate business and trust structures

• Security documentation (real property mortgages and Personal Property Security Register charges)

• Sales agreements (real and personal property, partnership interests, businesses, etc.)

• Partnership agreements and Joint Venture agreements

• Strata titling applications and drafting of Bylaws/related agreements

• Building agreements

• Shareholders and Unit Holder agreements

• Franchising arrangements

In addition to the aforementioned, a notary public’s role and services extend to the preparation of ships’ protests and the ability to note or protest bills of exchange.

Accordingly, a notary public will affix the official seal or stamp of their office as near as possible to the signatures of the document’s signatories, if not directly under.

This process — formally acknowledged as a ‘certification of authenticity’ — ensures the documents will be recognized nationally, and under the Hague Convention, internationally.

Other Important Functions of a Notary Public

When carrying out these notarial tasks, a notary public must:

• Confirm a signatory’s true identity through careful examination of an identity document

• Ensure a signatory fully understands the nature and effects of a document’s content

• Determine a signatory’s legal capacity, accounting for such things as physical injury, physical or mental illness, congenital disability, advanced aged, or any apparent intellectual deficiency, etc.

• Ascertain whether a signatory is an official representative of a legal entity and therefore authorised to sign on that party’s behalf

• Refuse notarial services in every instance a document constitutes a fraudulent or unlawful act

Notary Publics vs. Justices of the Peace

In Australia, a Justice of the Peace performs a similar set of duties to a notary public, however, they are not permitted to certify, sign or witness documents that are to be used in the different jurisdictions of foreign countries.

As a result of distinction, the two job titles are not used interchangeably.

If you are in need of notarial services regarding the official status of certain documents, consider contacting David Lewis, LBH Partner and registered public notary on dlewis@lbandh.com.au.

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