Notarising Company Records for a Foreign Registry

When a foreign company registry wants an Australian company's records, the notary can provide one of three things: a certified copy of a record, an officer's certificate with the officer's signature attested, or a notarial certificate of fact based on the notary's own search. The registry's instructions decide which. DFAT then apostilles or authenticates the notary's certificate.

Key takeaways

• A foreign registry cannot ring ASIC or inspect your minute book. It relies on the certificate attached to what it is sent, which is why it is strict about form.
• A certified copy says the copy matches a record. An officer's certificate is the officer's statement, with the notary attesting the signature. Only a notarial certificate of fact has the notary vouching for facts, as far as they can be verified.
• Tell the notary how each record is kept. Electronic registers and digitally signed resolutions need careful wording.
• Registries increasingly want the ownership chain up to individuals. Map it before booking; each foreign link is evidenced in its own country.
• Collect the registry's prescribed wording and send it to the notary in advance.

Why registries are strict

A foreign company registry files what it is sent. It cannot ring the Australian Securities and Investments Commission (ASIC), check your minute book or ask your company secretary a follow-up question. The certificate attached to a filing is the only thing standing between the registry and a forged one. That is why registries ask for company records to be notarised and apostilled, and why they often prescribe the exact form.

This page covers the mechanics common to every such request: registering a branch, filing a shareholder's details, updating the directors of a subsidiary, or proving who owns a foreign entity. For specific documents, see notarising company incorporation documents and notarising a board resolution. This page is about choosing the right notarial act and assembling the set.

Three ways a record can reach a registry

The same record can be put in front of a registry in three quite different ways, and they do not carry the same weight.

A certified copy of a record the company holds. The notary sights the original, such as a signed minute, the register of members or the adopted constitution, and certifies that the copy is a true copy of it. The certificate says nothing about whether the record is accurate or current. It says the copy matches the paper the notary saw.

An officer's certificate, with the officer's signature attested. A director or secretary signs a statement, often called a secretary's certificate or certificate of extract, declaring what the company's records show. The notary identifies the officer, checks their office against the register, and attests the signature. The content is the officer's statement, not the notary's. Registries do not always appreciate that distinction, but you should.

A notarial certificate of fact. The notary searches the public register and examines the company's records personally, then certifies what they found: that the company is registered, its number, its officers and similar facts. This is the only one of the three in which the notary vouches for the facts themselves, to the extent they can be verified from the register and records.

The registry's instruction says	Usually satisfied by
"Certified copies" of named records	Certified copies; a certificate of fact may also be accepted, if asked
"Certified by a director or secretary, signature notarised"	An officer's certificate, attested by a notary
"Independent verification" or "confirmed by a notary"	A notarial certificate of fact
A prescribed form of words	Whichever act supports that wording; send it to the notary first

If the instruction asks for independent verification, an officer's certificate alone is unlikely to satisfy it, because the content is the company's own statement. If it asks for certified copies, a certificate of fact may be accepted as well, but ask before substituting. What a notarial certificate proves explains the weight each form carries.

Records that exist only on a screen

Much of an Australian company's record-keeping is now electronic: share registers held in software or by an outside registry provider, resolutions signed digitally, ASIC extracts downloaded as PDFs. A certified copy needs an original to compare against, and a printout of a screen is not obviously one.

Notaries handle this in different ways, including verifying information against the source directly and saying exactly that in the certificate. Tell the notary, before the appointment, how each record is kept and how it was produced. If an outside provider keeps the share register, that changes who holds the original and what the notary can sight. A certificate that accurately describes what was examined is worth more to a registry than one that glosses over it.

Ownership questions travel up the chain

Registries increasingly want to know not only who holds the shares but who ultimately owns or controls the company. For an Australian company, the answer can take several steps.

The ASIC register shows the members of a proprietary company and may record whether shares are held beneficially, but not for whom. If a shareholder is another company, a trustee or a foreign entity, the registry will usually want the next link evidenced too, and the next, until it reaches individuals. Each link can need its own certified evidence. A link located in another country generally needs evidence from that country, authenticated there, because an Australian notary cannot vouch for a foreign registry's records.

Map the chain before you book anything. Trusts deserve special attention: a registry may ask for the trust deed, the trustee's details and the beneficiaries, and whether a trust deed should be disclosed, and how, is a question for the company's lawyer.

Assemble the set as one job

1. Match names exactly. The company name, including "Pty Ltd" and the ACN, and every officer's name must match across the ASIC record, the internal records and the documents being filed, and each person's name must match their passport.
2. Collect the registry's wording. Many registries prescribe the form of words for a certificate. Send it to the notary in advance, so they can say what evidence supports it and what they cannot certify.
3. Ask about binding. Several records can sometimes be certified under one notarial certificate and bound as one instrument. Where DFAT and the registry both treat that as one document, it means one apostille instead of several. Neither is certain to, so confirm with both first.
4. Order spare originals at the same appointment. If a bank or tax office in the same country also wants the records, each will want its own.
5. Authenticate. The Department of Foreign Affairs and Trade (DFAT) issues an apostille for a country in the Hague Apostille Convention, or an authentication certificate followed by embassy legalisation for others. Check the HCCH status table on the day. A notary cannot issue an apostille. DFAT's page of documents it can legalise treats company records as private documents that must be notarised first.

Translation, where required, happens at the point in the sequence the registry specifies. Keep the company name exactly as registered in any translation; see NAATI translation with a notary.

What the notary will not certify

Whichever act the registry asks for, some things are outside it. A notary does not confirm that the company is solvent, that its lodgements with ASIC or the tax office are up to date, or that a decision recorded in the minutes was commercially sound or validly made under the company's rules. A notary also cannot certify facts that only exist in a record they have not seen, such as a register kept by a provider who was not asked to produce it. If the registry's wording asks the notary to go further than the evidence allows, the notary will say so and suggest what can be certified instead. That conversation is far easier a week before lodgement than at the appointment, which is another reason to send the wording early.

Filings that come back

Some foreign registries expect periodic updates, and most expect notice when directors or shareholders change. Each change can mean a fresh set of certified evidence. If your group files regularly in the same jurisdiction, keep a note of which records that registry wants, in what form and how recent, so each filing does not start from a blank page. A standing resolution naming who may sign officer's certificates saves proving authority every time. Registering a foreign subsidiary covers the first filing, and closing an overseas entity the last.

Here is an illustration, not a real case

A Sydney logistics group must file beneficial ownership details for its Dutch subsidiary. The Dutch registry wants the Australian parent's current officers confirmed independently, and the chain of ownership up to individuals. The parent is owned by an Australian holding company, which is owned partly by a family trust and partly by a Singapore company. The group's lawyer maps the chain. An Australian notary issues certificates of fact for the parent and the holding company after searching the ASIC register, and attests the trustee director's signature on an officer's certificate about the trust. The Singapore link is evidenced and authenticated in Singapore. DFAT apostilles the Australian certificates.

In short

A foreign registry relies entirely on the certificate attached to your company's records. Choose the notarial act its instructions call for: a certified copy, an officer's certificate with the signature attested, or a notarial certificate of fact. Explain how records are kept, map the ownership chain, and assemble the set as one job before DFAT. For the notary step, see document notarisation, and for DFAT, apostille and authentication.

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Filing company records with a foreign registry? Send us the registry's instructions, and we will explain each step before you book.