The Legal Force of a Notarial Certificate

People often talk about a notarised document as though notarisation made it stronger — more binding, more true, harder to challenge. Some of that is right and some of it is badly wrong. A notarial certificate carries real weight, but the weight is precise: it attaches to what the notary did and saw, and to nothing else.

This page sets out what a notarial certificate proves, how much force that proof has, and where it stops.

What the certificate is evidence of

A notarial certificate is a formal statement, by a public officer appointed by a Supreme Court, of facts within the notary's own knowledge. Depending on the act, those facts are:

• that a named person appeared before the notary on a particular date
• how that person was identified
• that they signed the document in the notary's presence
• that they swore or affirmed its contents, where an oath was administered
• that a copy was compared with an original produced to the notary and found to be a true copy
• where relevant, the capacity in which someone signed and the evidence of authority the notary saw

That is the whole of what is certified. Each item is something the notary personally observed.

Why it is trusted

A notarial certificate is relied on by people who were not there and cannot inquire: a registry in another country, a foreign court, a bank abroad. They rely on it for three reasons.

The office. The notary is an appointed public officer with a duty that runs beyond the client, and whose appointment can be reviewed.

The register. The act is recorded permanently and can be checked.

The chain. The notary's signature and seal can be verified by DFAT against a lodged specimen, and confirmed to the foreign reader by apostille or authentication.

In common-law systems, including Australia's, the practical result is that a regular-looking notarial certificate is generally accepted as proof of the facts it states unless there is evidence to the contrary. It is strong evidence. It is not conclusive. Evidence of forgery, impersonation or a false certificate can displace it.

How civil-law countries may treat it differently

In many civil-law countries, a notarial instrument drawn up by a local notary has a special status. It may be treated as close to conclusive proof of its contents and, for some instruments, may be directly enforceable without a court order. The local notary in those systems also takes responsibility for the legality of the transaction, not only for the signatures.

An Australian notarial certificate is a different kind of document. It speaks to execution and copies, not to the legality of the deal. Whether a foreign authority gives it the same effect as one of its own notarial instruments is a matter for that country's law. Some civil-law jurisdictions ask whether a foreign notarial act is equivalent to their own before accepting it for particular purposes — certain company share transfers and land dealings are the usual examples — and may require the act to be performed locally regardless.

If a transaction abroad requires a "notarial deed", ask a lawyer in that country whether an Australian notarial act will satisfy the requirement before relying on it.

What the certificate does not do

It does not make the contents true. A notarised declaration containing a false statement is a genuinely notarised false statement. The notary certifies that you swore it, not that it is right.

It does not make an invalid document valid. If a contract is void, a will is improperly made, or a company officer had no authority, notarisation does not repair it. The certificate records execution; the document's validity is a matter of the law that governs it.

It does not replace a required formality. Where a document must be signed before particular witnesses, registered, stamped for duty or lodged by a deadline, a notarial certificate does not substitute for any of that unless the governing law says it does.

It does not guarantee acceptance. A receiving authority can refuse a perfectly valid notarial act because it wanted different wording, a newer document or a different form of authentication.

Where an oath adds real force

One notarial act does change the legal character of a document: administering an oath or affirmation. An affidavit sworn before a notary is sworn evidence. A deponent who knowingly swears something false is exposed to the consequences that attach to false sworn statements — in Australia and, depending on its law, in the country where the affidavit is used.

That force comes from the oath, not from the seal. It is the reason the notary will ask whether you understand what you are swearing to.

Force in Australia versus abroad

For most domestic purposes, a notarial certificate is not needed at all; a Justice of the Peace or another authorised witness does the job and costs nothing. Notarisation adds nothing to an Australian statutory declaration that the domestic rules do not already provide.

The certificate's real force is international. It exists so that a foreign reader can accept an Australian act without investigating it.

Common questions

Can a notarised document be challenged? Yes. The certificate is strong evidence of what the notary observed, but it can be displaced by evidence of forgery, impersonation or fraud. The contents can be challenged on their merits, as with any document.

Does an apostille add legal force? No. It confirms the notary's signature and seal are genuine. It adds nothing to what the notarial certificate itself proves.

Is a notarised contract more enforceable? Not in Australia merely because it was notarised. Abroad, it depends entirely on the law of the country concerned.

Is a notarised copy as good as the original? For many overseas purposes it is accepted in place of the original. That is a choice made by the receiving authority, not a legal equivalence.