Apostille for a Board Resolution Issued in Australia

A board resolution must be notarised before DFAT can apostille it, because it is the company's own internal record with no official signature on it. The notary checks the company on the ASIC register, the signatory's office and how the resolution was made, then certifies what was verified. DFAT apostilles the notary's signature, not the resolution itself.

Key takeaways

• The Department of Foreign Affairs and Trade (DFAT) legalises private company documents only after an Australian notary has dealt with them. A company secretary's certificate alone is not enough.
• The apostille confirms the notary's signature and seal. Anything about the company, the signatory or the resolution comes from the notarial certificate.
• Bring the evidence, not just the resolution: the constitution if there is one, minutes if it was passed at a meeting, and ID for each signatory.
• Government-issued company records, such as an ASIC extract, may go to DFAT directly. Ask DFAT for your document.
• Foreign banks often want a recent resolution and a recent company extract. Ask for the limit before starting.

What the foreign reader wants to know

A foreign bank, registry or counterparty reading an Australian board resolution is really asking three questions. The apostille answers none of them on its own.

1. Does this company exist?
2. Is the person who signed really a director or secretary of it?
3. Was the resolution properly made, so that it binds the company?

An apostille is a certificate DFAT attaches to an Australian public document, confirming the signature and seal on it, so that countries in the Hague Apostille Convention accept it without further legalisation. On a resolution, the signature it confirms is the notary's. The answers to the three questions have to come from the notarial certificate underneath, which is why a notary's work on a resolution is more involved than a simple certified copy.

What the notary checks

Before certifying anything, a notary will usually want to verify:

• The company's existence and details, from a current search of the ASIC register;
• The signatory's office, by comparing the ASIC record of directors and secretaries with the person present and their identification;
• The company's rules for making decisions: its constitution if it has one, or the replaceable rules under Australian company law if it does not;
• How the resolution was made: at a meeting, or as a written resolution signed by all the directors, and whether the company's rules permit that method.

The notarial certificate can then state what the notary verified: that the company is registered, that the signatory holds the office stated, and that the resolution was signed in the notary's presence. Some notaries will go further and certify that the resolution was duly passed; others will certify only what they witnessed and checked. Ask the notary what they are prepared to state, and match it to what the receiving body has asked for. If there is doubt about whether the resolution was validly passed under the company's rules, that is a question for the company's solicitor before the notary appointment.

A notary also checks that each signatory understands what they are signing and is signing freely, and may decline if not satisfied. For the notarial side in more detail, see notarising a board resolution.

Bring the evidence, not just the resolution

Two of those items need more explanation.

Extracts from minutes. A resolution certified as an extract, a single resolution taken from longer minutes, is common and generally acceptable. The notary will usually want to see the full minutes to confirm the extract is accurate, even though only the extract goes overseas.

A missing constitution. If the company has a constitution but nobody can find it, the notary may not be able to confirm how the company makes decisions. ASIC may hold a copy if one was lodged; otherwise the company's solicitor or accountant may have it. Start looking before you book.

The company seal question

Officials in some countries, particularly civil law countries, expect every corporate document to bear a company seal. Australian companies are not required to have one, and many do not. Australian company law allows a company to execute a document through the signatures of its officers, such as two directors, or a director and a secretary, or a sole director who is also the sole secretary, with or without a seal.

When a resolution is going to a country that expects a seal, a notarial certificate that explains briefly how an Australian company executes documents can avoid a rejection that has nothing to do with the resolution's validity. Raise it with the notary if the destination is likely to ask. How a particular company should execute a document is a question for its solicitor if there is any doubt.

A resolution rarely travels alone

A resolution usually goes overseas with other company documents. Each has its own route to DFAT.

Document	Who issues it	Route to DFAT
Board resolution or extract of minutes	The company	Notary first, then DFAT
ASIC company extract	ASIC	May go to DFAT directly as a government document; ask DFAT
Certificate of registration	ASIC	Original to DFAT, or a notarised copy
Power of attorney for a local representative	The company	Signed before a notary, then DFAT
Copy of the constitution	The company	Notarised copy, then DFAT

DFAT's list of documents it can legalise names government commercial documents, such as those from ASIC and the ATO, among the originals it accepts, and company documents among the private documents it accepts after notarisation. Each document normally needs its own apostille. If a notary binds several into a single instrument, ask DFAT how it will count the bundle before relying on that, because for a full corporate set it changes the cost considerably.

The chain, start to finish

Why a resolution goes overseas

• Opening a bank account for an Australian company in another country.
• Establishing a subsidiary or branch abroad, where the foreign registry wants evidence the parent authorised it.
• Appointing a local representative or attorney, often alongside a company power of attorney. See power of attorney and legal declarations.
• Signing a contract or tender, where the counterparty wants evidence the signatory is authorised.

Destination wording and translation

Foreign banks and registries often supply the exact wording they need, sometimes as a bilingual template. Use it. A resolution drafted in Australian style may not use terms the foreign reader recognises, and a registry that expects its own wording will not accept a translation of yours. If the template is in a language the directors do not read, tell the notary in advance, because the notary must be satisfied they understand what they are signing.

Where a translation is needed, confirm whether it should be authenticated with the resolution, in which case DFAT will accept a translation by a NAATI certified or recognised translator with their details on every page, or prepared after the apostille in the destination country. See document translation.

Recency

Resolutions are often subject to recency limits abroad, because a board's composition changes. Foreign banks in particular often want the resolution, and the company extract supporting it, to be recently dated. Ask for the limit before starting, and time the ASIC search close to the notary appointment. If the board changes between the resolution and the appointment, tell the notary.

Apostille or authentication

If the destination is a member of the Apostille Convention, the apostille completes the Australian process. If not, DFAT issues an authentication certificate for the notary's signature and the destination's embassy or consulate then legalises it, sometimes with its own requirements for corporate documents. Membership changes, so check the HCCH status table on the day. Asking DFAT for the wrong certificate means lodging again; see what happens with the wrong certificate type.

Mistakes that cost time

• Signing the resolution before the appointment when the foreign bank wanted the signing witnessed.
• Drafting the resolution in Australian style when the bank had supplied its own template.
• Arriving without the constitution or the full minutes the extract was taken from.
• Running the ASIC search weeks early, so the extract is outside the bank's recency limit.
• Assuming one apostille covers the resolution, the extract and the power of attorney together.
• Asking DFAT for an apostille for a country outside the Convention.

Most of these are avoided by one step: getting the receiving body's written list of documents, wording and recency limits before anyone signs or anything is searched.

Here is an illustration, not a real case

A Perth mining services company is opening a bank account for a new subsidiary in Chile. The Chilean bank sends a bilingual template resolution naming two authorised signatories, and asks for it apostilled with a recent company extract. The company's two directors sign the template before a notary, who has run a current ASIC search, checked both directors against it and against their passports, and reviewed the constitution. The certificate states what was verified and explains that the company has no seal. DFAT apostilles it, and the ASIC extract is lodged with DFAT separately.

In short

A board resolution is a private company record, so it must be notarised before DFAT can apostille it. The notary checks the company, the signatory's office and how the resolution was made, and the certificate states what was verified; the apostille only confirms the notary's signature. Bring the constitution, minutes and ID, use the foreign body's wording, and watch recency limits. More on the service is at document notarisation.

People also search for

• How do I notarise a board resolution?
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Sending company documents overseas? Send us the foreign bank's wording, and we will explain each step before you book.