THE NOTARY
In the reign of Henry VIII the power to grant Faculties was assumed by the King and a Court of Faculties under the jurisdiction of the Archbishop of Canterbury was called into existence with the passing of the Ecclesiastical Licences Act 1533.
In the ACT (Australian Capital Territory) until 1984, Notaries were appointed by the Archbishop of Canterbury from lawyers. After the passing in the ACT of the Notaries Public Act in 1984, Notaries were appointed from lawyers of at least five years standing by the Supreme Court after proof of demand, eligibility and capacity. A Notary Public is an officer of the law. Their functions are generally to draw up and/or authenticate documents of a quasi-public character requiring unusual solemnity, and to give a certificate of due execution of such documents authenticated by their signature and seal.
A Notary Public may be engaged in mercantile affairs such as protests of bills of exchange and the Notary Public is invested with an official and international character that is recognized by the laws of all civilised nations.
A Notarial Act is the act of a Notary Public authenticated by signature and official seal certifying the due execution in their presence of a deed contract or other writing or verifying some fact or thing done in his presence. A Notary keeps a Notarial Register to record all transactions in which they have acted as a Notary. Entries in such Register may be produced in evidence upon proof of the Notary’s death should any enquiry be made as to the authenticity of any Notarial Act. A Notary in the ACT is appointed for life.
In some jurisdictions, such as NSW, registration each year is required. Identification of parties is not always a simple matter. This difficulty can be overcome by a party who knows a Notary providing introduction or by identification documentation. Such documentation may include a passport, Driver Licence, bank passbook, an Aliens Registration Certificate, or Identity Card sufficient to satisfy a Notary beyond a reasonable doubt that the person is the party the Notary is endeavouring to identify. When a document identifies a person by an identity card or passport, the original of that identity document must be sighted.
On the 16th March 1995 Australia became a contracting State to the Hague Convention of 5th October 1961.
By this Act a Certificate called an ‘Apostille’ can be obtained under the Convention. This is issued by the Department of Foreign Affairs and Trade (DFAT) and is legalization of the Notary’s Certificate. The Certificate is then accepted in a foreign country without involvement of the Embassy or Consulate of that foreign country. This streamlines what would otherwise be three steps in legalisations. For documents to be executed in a language other than English it is within the Notary’s discretion whether or not to require a certified translation into English of the document from the foreign language. A memorandum at the foot of such a document can be made stating that although signed in the Notary’s presence, the Notary is not responsible for the contents which are in a language in which the Notary is unlearned.
A Notary in a shipping port can be called upon to note a Ship’s Protest. This is a procedure followed by the Master of a ship who arrives at the first port of discharge after encountering heavy weather or some incident during the course of the voyage or arriving at a port of refuge or distress when compelled by some extraordinary accident or injury to put into such port. The purpose is to provide evidence that damage has been caused by maritime perils and not by any negligence or misconduct on the part of the Master, the Officers or Crew. Affidavits for use in foreign countries need to be made by way of oath or affirmation before a Notary. Some countries also require that documents dealing with property in their country be executed before a Notary.
