Notarial Acts in Public and Private Form

A notarial act in private form is a short certificate the notary adds to your own document, such as "signed before me". A notarial act in public form is a formal instrument the notary writes in their own name, with your document attached. Both are signed and sealed by the notary. Some countries, mostly civil law ones, expect public form.

Key takeaways

• Private form: your document, with the notary's brief attestation or certificate added. It is the most common kind.
• Public form: a notarial instrument written by the notary, in the third person, that records the act and has your document annexed.
• Public form is more formal and more familiar to civil law authorities, which is why some foreign recipients ask for it.
• Neither form certifies that your document's contents are true. Both record what the notary did and saw.
• Both can be apostilled or authenticated by DFAT, which verifies the notary's signature and seal.
• The receiving authority decides which form it wants. If it does not say, private form usually suffices.

What is a notarial act?

A notarial act is anything a notary does in their official capacity and records under their signature and seal. The commonest acts are witnessing a signature, administering an oath or affirmation, certifying a copy of an original document, and certifying facts the notary has verified, such as a company's registration. Every notarial act has two parts: what the notary actually did, and the written record of it that travels with the document. Our guide to what a notary public does covers the range of acts.

That written record can take two shapes. Australian notaries follow the English notarial tradition, which distinguishes a notarial act in private form from one in public form. The difference is not about what the notary checks. It is about how the record is written and whose document it is.

What is private form?

In private form, the document is yours. It might be a power of attorney, a declaration or a company resolution. The notary adds a short attestation clause or certificate to it, often at the foot of the signature page or on a page attached behind it. A typical private-form certificate says, in effect, that the named person signed in the notary's presence, that the notary verified their identity, and when and where it happened. The notary signs, dates and seals it.

Private form is quick, familiar and accepted for most purposes. Most notarised documents that Australians send overseas, from powers of attorney to certified copies of degrees, are in private form. Our guide to how a notary witnesses a signature describes the usual procedure.

What is public form?

In public form, the notary writes a separate instrument in their own name. It usually opens with a formal statement, such as "to all to whom these presents shall come", then identifies the notary and narrates the act in the third person. It records that on a given date a named person appeared before the notary, was identified, and signed or swore the attached document, or that the notary examined certain records and found certain facts. Your document is annexed to the instrument, often bound to it so that pages cannot be separated, and the notary signs and seals the whole.

Because the notary speaks in their own name and with more detail, a public-form act reads more like the authentic instruments of civil law countries. That is why some authorities in Europe, Latin America and elsewhere prefer it. In the English tradition, a notary may keep the original of a public-form act in their records and issue certified copies. Whether an Australian notary does so depends on their practice and the document. Every Australian notary keeps a register of their acts. Our guide to the notarial register explains what it records.

Feature	Private form	Public form
Whose document	Yours, with a certificate added	The notary's instrument, with yours annexed
Voice	Short attestation, often first person	Formal narrative, third person
Detail	Identity, signature, date, place	Often more: capacity, documents seen, facts verified
Typical use	Most signatures, oaths and certified copies	When a civil law authority asks, or for certificates of fact
Apostille or authentication	Yes, on the notary's signature and seal	Yes, on the notary's signature and seal
Certifies the contents are true?	No	No

When is public form used?

Mostly in three situations. The first is when the foreign authority asks for it, sometimes by name ("a notarial act in public form") and sometimes by sending a model that is plainly a public-form instrument. The second is when the notary is certifying facts rather than witnessing a signature. A notarial certificate that a company is registered, who its directors are and who may sign for it is often drawn in public form, because the notary is stating what they verified. The third is a small group of traditional acts, such as protests of bills of exchange, which the English tradition has always recorded in public form.

If the foreign authority does not specify, private form is usually enough. Some notaries will suggest public form where they know a destination's authorities expect it. But ask the recipient first, because a public-form act is longer to prepare and the extra formality helps only if the recipient values it. Our guide to company document notarisation covers certificates of company facts.

Does the form change what the notary checks?

No. In either form the notary must be satisfied of your identity, usually from a passport or other photo identification. They must be satisfied that you understand the document and are signing freely, and for a copy, they must sight the original. A public-form act may record more of this in writing, such as the documents the notary examined or the capacity in which you signed. But the checks themselves are the same, and the notary may decline in either case.

Neither form certifies that the contents of your document are true. A notary who witnesses your declaration in public form has still only recorded that you made it before them. Our guide to the legal effect of a notarial certificate explains what the record does and does not prove.

What happens after the notary?

If the destination wants proof that the notary is genuine, the document goes to DFAT. DFAT's page on documents it can legalise explains that a private document becomes a public document once notarised, and can then be legalised. For a country that is a party to the Apostille Convention, DFAT issues an apostille. For others, DFAT issues an authentication and the country's embassy or consulate then legalises it. Check the HCCH status table on the day. DFAT verifies the notary's signature and seal, whichever form the act takes. It does not look at whether private or public form was the right choice; the receiving authority does.

Do not separate the pages. A public-form act, or a private-form certificate on an attached page, is usually bound to the document it relates to. Removing a staple, ribbon or eyelet can make the document look altered, and DFAT does not accept altered documents.

How do you get the right form?

1. Read the recipient's instructions. Look for words such as "public form", "notarial instrument" or a model certificate.
2. Ask if unclear. Ask the foreign authority, lawyer or notary which form it expects.
3. Send the document and instructions ahead. The notary can say which form fits and what they need to see.
4. Bring identification and originals. Photo ID for each signer, and originals of anything to be copied or referred to.
5. Keep the bound document intact. Do not remove staples, ribbons or eyelets.
6. Arrange the apostille or authentication. Then any embassy step the destination requires.

Common mistakes to avoid

The most common mistake is ignoring a recipient's request for public form and sending a document with a private-form certificate, which may be rejected. The second is the reverse: paying for a public-form instrument when the recipient would have accepted a short certificate. The third is removing the notary's binding to scan or copy the pages. The fourth is assuming public form makes the document's contents more reliable. It makes the record of the notarial act more formal, nothing more. The last is using a Justice of the Peace for overseas use; a JP's witnessing cannot be apostilled. Our guide to what makes a notarial act invalid covers other problems.

Here is an illustration, not a real case.

A Sydney company is registering a branch in Brazil. The Brazilian lawyer sends a list asking for a notarial certificate in public form confirming the company's registration, its directors and the authority of the person signing a power of attorney. The notary checks a current ASIC extract, the board resolution and the director's passport. They draw up a public-form instrument narrating those facts, with the power of attorney annexed, then sign, seal and bind it. DFAT adds an apostille before the documents are sent to Brazil.

In short

A notarial act in private form is a short certificate added to your own document. One in public form is a formal instrument the notary writes in their own name, narrating the act, with your document annexed. Both are signed and sealed, both can be apostilled or authenticated by DFAT, and neither certifies that your document's contents are true. Some civil law authorities prefer public form, and certificates of fact are often drawn that way. Let the receiving authority's instructions decide. Our document notarisation services page explains the acts a notary can perform.

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