Notarial Requirements When Appointing an Overseas Director

It depends on which way the appointment runs. If you are in Australia and joining a company's board overseas, a notary usually witnesses your consent and declarations and certifies your passport copy, then DFAT adds an apostille. If an Australian company is appointing a director who lives overseas, Australian law asks for very little notarial work.

Key takeaways

• Work out which situation you are in first. The two call for very different paperwork.
• Joining a foreign board typically means a consent to act, a certified passport copy, proof of address and sometimes a declaration of eligibility, each in the foreign registry's form.
• A notary certifies that you signed, that a copy matches the original, or that you swore a declaration. The truth of what you declare is yours.
• After the notary, the documents go to DFAT for an apostille or authentication. A notary cannot issue an apostille.
• An overseas person joining an Australian board signs where they are, and any formal witnessing happens in their country, not before an Australian notary.

Which situation are you in?

"Appointing an overseas director" covers two different transactions, and the first job is to sort out which one you have.

• A person in Australia is becoming a director of a company overseas, usually a subsidiary, a joint venture vehicle or a client's local entity. This generates most of the notarial work, and most of this page is about it.
• An Australian company is appointing a director who lives overseas. This generates surprisingly little Australian notarial work, and it is worth knowing why before anyone pays for it.

What will a foreign registry ask for?

The foreign registry, or the company's local lawyer, needs to know who you are, that you agree to act and, sometimes, that you are eligible to act. Expect some combination of the following, usually in the registry's own form and sometimes in its own language:

• A consent to act, signed by you;
• A certified copy of your passport, sometimes with wording the registry prescribes;
• Proof of residential address;
• A specimen signature, for the registry's or a bank's records;
• A declaration of eligibility: that you are not bankrupt, not disqualified from managing companies, or not subject to particular convictions;
• occasionally a police certificate, and sometimes an application for a local tax or identification number.

Get the full list in writing from the company's local lawyer or corporate services provider before you book the notary. A list compiled from memory by someone in head office is the most common reason for a second appointment.

What does the notary actually certify?

Each of these documents asks the notary to do something different, and it helps to know what the notarial certificate will and will not say.

The consent and any signed forms. The notary checks your identity against current photo identification, confirms you understand what you are signing and are doing so freely, and watches you sign. Do not sign beforehand; a signature made at home can only be made again.

The passport copy. The notary certifies a copy only after comparing it with the original passport in front of them. If the registry prescribes wording, such as "I certify that this is a true copy of the original and that the photograph is a true likeness", send it to the notary in advance so they can check they are able to give it accurately.

Proof of address. A notary can certify a copy of a utility bill or bank statement. That certifies the copy, not the fact that you live at the address. If the registry wants the address itself attested, the usual form is a declaration you make, which the notary witnesses. Ask which the registry wants.

Declarations of eligibility. The notary administers the oath or affirmation; the truth of what you declare is yours. A false declaration to a foreign registry can have consequences for you personally, and some questions, such as whether you have been disqualified anywhere else, are less obvious than they look. If you are unsure how to answer one, ask the company's lawyer before the appointment, not at it.

How does the chain run after the notary?

1. Get the registry's list and forms, including any prescribed certification wording.
2. Attend the notary with your passport, the unsigned forms and the originals of anything to be copied. The notary witnesses, administers oaths and certifies copies, and records each act in their register.
3. Send the notarised documents to DFAT. It issues an apostille if the destination is a member of the Hague Apostille Convention, or an authentication certificate followed by legalisation at the destination's embassy if it is not. Check membership on the HCCH status table on the day.
4. Arrange translation if the registry wants the documents in its language, in the order it specifies. See document translation.
5. Send the originals, keeping a copy of every page.

A Justice of the Peace cannot stand in for the notary here. A JP is a free witness for Australian purposes, a JP certification is not accepted by foreign registries in the usual case, and DFAT cannot apostille it. DFAT's list of documents it can legalise explains that private documents must be notarised first. For the notarial side of company work in general, see document notarisation.

If you are one of several new directors living in different countries, each of you signs before a notary where you are, and each set of documents is authenticated in that country. Confirm that the registry is content to receive certificates from more than one jurisdiction, and that it does not need everyone's signature on one page.

What to bring to the appointment

• Your current passport, and a second form of identification if the notary asks for one;
• every form unsigned, in the version the registry sent, with any foreign-language pages and their translations;
• the originals of anything to be copied, such as a bill for proof of address;
• any prescribed wording for the certified copies, sent to the notary beforehand;
• if a parent company is nominating you, its board resolution, which may need notarising in its own right.

Ask the registry how recent the certified copies must be. Some want copies made within a set period before lodgement, so a passport copy certified for last year's bank account may not do.

Director duties go with the appointment

Accepting a directorship of a foreign company exposes you to that country's director duties and liabilities, which is outside what a notary deals with. If the role is more than nominal, or if it is nominal and you are being asked to accept it as a convenience, get advice on the foreign law before you sign the consent. A solicitor can tell you whether you need a foreign adviser as well.

When an Australian company appoints someone who lives overseas

Here the question is what Australian law and ASIC require, and much of it involves no notary at all.

Requirement	What it involves	Is a notary needed?
Written consent to act	Signed before appointment and generally kept in the company's records rather than lodged	Usually not, unless the company's advisers want it witnessed
Director identification number	The director's own obligation, through the government's identity process	Not as a rule; check the current instructions for anyone who cannot use the online process
A resident director	A proprietary company must have at least one director who ordinarily resides in Australia	No; take advice if the overseas appointee would be the only director
Formal witnessing, if a counterparty wants it	Done where the director is, under that country's rules	A notary or official in their country, not an Australian notary

The director identification process has its own rules on who may certify identity documents for someone outside Australia. Check the current instructions rather than assuming a notary is required or sufficient. A document signed overseas for use in Australia is authenticated in the country where it was signed; see documents notarised overseas.

Here is an illustration, not a real case

A Sydney finance manager is to become a director of her employer's new subsidiary in a European country. The local law firm sends a consent form in two languages, a declaration that she is not disqualified, and a request for a passport copy with a prescribed certification sentence. She sends everything to the notary a week ahead. The notary confirms the sentence can be given accurately, and at the appointment she swears the declaration, signs the consent and has the passport copy certified. DFAT apostilles all three, and the originals go to the law firm, which files them with the registry.

In short

Joining a board overseas from Australia means notarial work: a witnessed consent, sworn declarations and a certified passport copy, each then apostilled or authenticated by DFAT. Appointing someone who lives overseas to an Australian board mostly does not: the consent is kept by the company, the director arranges their own identification number, and any witnessing happens where they live. Get the registry's list in writing, send the forms to the notary in advance, and take legal advice on the duties before you accept.

People also search for

• Which documents does a foreign subsidiary registration need?
• How is a board resolution notarised?
• How do I send company records to a foreign registry?
• What do I need to set up a business overseas?
• How does a notary verify my identity?

Joining a board overseas? Send us the registry's list and forms, and we will explain each step before you book.