Part 5: Legal advice, legal processes and notarial service

Appendix 21A: State and territory law societies

21.1 Provision of lists of lawyers

Australians in difficulties abroad often seek legal advice from consular officers. Officers must not give legal advice, but should advise the enquirer to consult a qualified lawyer, either locally or in Australia, depending on the case.

While posts must not recommend legal advisers, they are required to hold and maintain a list of local lawyers. All lawyers should have some English language capability and list other language skills and their area(s) of expertise. Posts should ensure that at least one specialist in family law, including child abductions, is listed.

Posts are considered to have met the requirements if they are able to refer clients to a comprehensive and electronically accessible list of appropriately qualified English-speaking local lawyers that is maintained by a reputable local law society, bar association or equivalent organisation in the host country. The list should include a standard disclaimer. Posts are required to keep the Lawyers list in their k-base up to date at all times. While the Department does not recommend or accept responsibility for the quality of work performed by any lawyer on a post's list, posts should make preliminary enquiries (including with like-minded missions) to justify the inclusion of a lawyer or legal firm on their list.

If enquirers seek the name of a lawyer in Australia, consular officers should provide the name and address of the appropriate state or territory law society and advise the enquirers to make direct contact, stating the nature of the matter in which they seek representation or advice. Contact details of the state and territory Law Societiescan be found on the Internet or in the Yellow Pages of the relevant Australian telephone directory.

21.2 Role of consular officer

While an Australian seeking protection is pursuing satisfaction through local legal channels, the consular officer must not give advice on any legal aspect of the case and must not advance funds for obtaining local legal advice or assistance.

Australians or Australian companies involved in matters, such as legal proceedings over property matters and actions for compensation, are expected to engage appropriate legal representation to protect their interests. In these cases, consular officers may fulfil their function by monitoring progress of the case without normally being required to attend in court. If officers are in doubt whether attendance in court is desirable, they should seek guidance from Consular Operations.

In Australia, legal aid is provided through Legal Aid Commissions in all states and territories, but these will not normally grant legal aid for legal costs incurred abroad. Contact details for these bodies are in relevant phone directories.

When an Australian's life or liberty is threatened and the Australian Government has a direct interest in the case, an application for ex gratia assistance may be made to the Attorney-General for costs incurred in legal proceedings overseas.

Assistance under the Special Circumstances (Overseas) Scheme (www.ag.gov.au) is provided only in the most exceptional circumstances, for example when the Australian Government has a direct involvement in the matter, or in overseas criminal cases when the applicant is facing a lengthy period of imprisonment or the death penalty. In the absence of special circumstances, a lack of financial means to pay for overseas legal fees is not sufficient in itself to justify financial assistance.

Each application is considered on its own merits. In order to determine its reasonableness, including legal merits, the degree of hardship involved, the inability to obtain legal or financial assistance from other sources (eg. legal aid authorities in Australia and the country concerned), and whether there are any special circumstances warranting a grant of ex gratia assistance are all taken into account.

An application for ex gratia assistance made to an overseas post may be sent by diplomatic bag addressed to the:

Assistant Secretary
Legal Assistance Branch
Attorney-General's Department
National Circuit
BARTON ACT 2600

Telephone: +61 2 6141 4770
Facsimile: +61 2 6141 4926

A copy should be sent to DFAT, addressed Attention: Senior Legal Adviser/International Legal Division.

For assistance available in child custody cases, see Chapter 11.

22.1 Definition of notarial services

The law in many countries requires that a signature on a document is witnessed or other procedures are applied to a document before it can be used for legal purposes or in a court of law. These procedures are called notarial services. Solicitors, justices of the peace, and notaries public normally perform these functions in Australia, but consular officers may also be authorised to do so, both in Australia and at overseas posts. The documents involved must be processed correctly: an error in processing by a consular officer can render a document unacceptable in court.

22.2 What does a notarial act mean?

A notarial act is an action performed by an appropriate person, such as authenticating a document or witnessing an affidavit. A fee may be charged for each notarial act. A notarial service may comprise of several acts.

22.3 Eligibility for notarial services

At overseas posts, notarial services are provided by DFAT for Australians, or when the documents are for use in Australia.

In Australia, most notarial services are provided by public notaries. Locations and contact details of public notaries are at www.notarylocator.com.au.

However, as part of DFAT's role as the local authority for a number of International Conventions, its state and territory offices provide the following notarial services:

These services are only for Australians or in cases when the documents are Australian in origin or for use in, or requested by, Australia.

22.4 Other references

This chapter sets out the procedures for performing the most commonly requested notarial acts which include witnessing and authenticating documents, administering oaths and affirmations, witnessing statutory declarations, and assisting in the taking of evidence and service of documents abroad. It should be read in conjunction with the Notarial Guidelines for State and Territory Offices, which provide further detail on authentications and apostilles. Consular officers may, from time to time, also be called on to provide assistance with other aspects of legal process. In these cases, additional instruction are provided by Canberra.

22.5 Definitions

Definitions of legal terms in this chapter are in Appendix 22A.

22.6 Consular Management Information System (CMIS)

CMIS contains templates to assist in delivering some notarial services. Consular officers at overseas posts are encouraged to develop post-specific templates to assist with providing services such as issuing Certificates of No Impediment. CMIS is also used to collect statistics on notarial work.

22.7 Authority to perform notarial acts

The authority of a consular (or diplomatic) officer to perform particular notarial acts overseas is granted by an array of commonwealth, state and territory legislation, regulations, court rules and other procedures. Commonwealth legislation generally grants notarial powers and the power to charge fees to Australian consular officers who are defined as consular agents, consuls-general, consuls, vice-consuls, and trade representatives. These powers do not include locally engaged staff, who may be referred to as consular officers locally, and Australian Diplomatic Officers, defined as Ambassadors, High Commissioners, Heads of Mission, Ministers, Charges d'Affaires, Counsellors, Secretaries and Attaches. State and territory legislation grants notarial powers to a more limited range of officers.

Authorised locally-engaged staff

Locally engaged employees may also be authorised by the Secretary of the Department to perform certain notarial acts and charge the prescribed fees. Posts will be approached by cable twice yearly to nominate local staff to perform notarial work under the Consular Fees Act and Regulations. When nominating locally engaged staff, posts are expected to take into account the suitability, including the capacity and probity of individuals, of officers to perform notarial work, and the length of service. Posts are reminded that these staff must have satisfactorily completed a probation period and met local security clearance requirements.

However, authorised locally engaged staff can perform only a limited range of notarial acts and are not able to perform notarial acts required by laws of Australia's states or territories. Notarial acts that can be performed are limited to:

Locally engaged staff are not authorised to perform any other notarial.

Questions about the extent of powers of authorised locally engaged staff, and on the appointment or removal of these staff from the list of authorised persons, should be addressed to the Consular Policy and Training Section.

22.8 Consular fees

The Consular Fees Act 1955 sets fees for the performance overseas of various notarial acts.

Fees are not payable when the notarial act is performed at the request of and for the purposes of a foreign government.

Consular fees are paid in the post's local currency. Local currency fees are to be reviewed monthly and need only be amended when the exchange rate moves by 3 per cent or more since the last variation.

Local currency fees may be rounded to the nearest commercially used local currency unit.

In countries with multiple Australian posts, for example, the United States, responsibility for setting local currency fees lies with the primary mission. For posts in countries using the Euro, Brussels sets the local currency fees.

Current consular fees are in 22.9. Posts are required to display prominently, in both English and the local language, a current list of local currency fees in their consular public area.

If the act is performed away from diplomatic or consular premises, the following additional charges apply:

22.9 Current consular fees

Item Consular act Fee
1 Administering an oath or receiving a declaration or affirmation, with or without witness of signature AUD20
2 Marking an exhibit to an affidavit or declaration in writing AUD 10
3 Witnessing: (a) a signature or (b) the seal or (c) the signature and seal of an authority or person, other than a person specified in regulation 3 AUD 20
4 Signing a document, or affixing a seal to a document or other article, in a case not otherwise specified in this Schedule; AUD 20
5 Signing and affixing a seal to a document in a case not otherwise specified in this Schedule AUD 20
6 Preparing a declaration or other document in a case not otherwise specified in this Schedule or taking down in writing an oral declaration or deposition made before a person specified in regulation 3 AUD 30 and in addition AUD 20 for each 50 words, or part, by which the document exceeds 50 words
7 Making and certifying a copy of a document or part of a document AUD 30 and in addition
(a) if the consular act includes the typing of the document or a part of the document - AUD 20 for each 50 typed words
(b) AUD 2 for each copy, other than the first typed copy, of a page of the document.
8 Verifying and certifying a copy of a document or part of a document AUD 30 and in addition
(a) if the consular act includes the typing of the document or a part of the document - AUD 20 for each page
(b) AUD 10 for each copy, other than the first typed copy of the document.
9 Uniting documents and affixing a seal to the fastening AUD 20
6 Initialling alterations to, or interlineations in, a document not prepared by a person specified in regulation 3 AUD 5 for each 3 initialling or part of 3 initialling
11 Taking evidence under a commission or order from a court AUD 50 for each hour, or part of an hour, spent in taking evidence or AUD 200 , whichever is the greater.
12 Effecting, or attempting to effect, service of a document and issuing a certificate or affidavit of service or attempted service AUD 30
13 Transmitting through official channels a document or other article AUD 12 and in addition, the amount of postal charges which would be payable if the document or article were transmitted by post.
14 Witness the execution of a Will AUD 40
15 Transferring funds through official accounts, other than for the purpose of the realisation of a deceased estate AUD 40
15A Preparation and issue of an Apostille (a certificate of the kind referred to in Article 3 of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents) AUD 60
16 The performance of a consular act specified in a preceding item of this Schedule: (a) away from diplomatic or consular premises; or (b) outside the hours when those premises are open to the public for business AUD 10
Additional charges apply where the act is performed away from diplomatic or consular premises or after normal business hours. See below.
Other Consular Acts
Issuing a Certificate of No Impediment to Marriage AUD 90

22.10 Disclaimer

Posts are required to display prominently in the public area of the mission a disclaimer notice which should be drawn to the attention of consular clients. The wording of the notice should be:

Please ensure that documents relating to notarial services you require from the Australian Government/Embassy/Consulate, are presented in the correct form and that you provide the correct instructions for witnessing any signatures on the documents. If you are unsure of the legislative requirements relating to witnessing signatures on a particular document, you should seek independent legal advice. Please note, by witnessing a signature on a document neither the Australian Government nor the Australian Embassy/High Commission/Consulate in Post/Country guarantees the legal effectiveness of the document or the accuracy of its contents.

22.11 Notarial tools

Special equipment is needed to perform notarial acts correctly. These include:

Some equipment, such as a Bible or ribbon, should be purchased locally. Other equipment, such as the embossing tool, can only be obtained from DFAT Canberra.

22.12 General points about notarial services

Notarial work is another one of DFAT's client services. Clients expect prompt, courteous and accurate service.

It is the responsibility of the client to present the document to be serviced in the correct form, and to provide the correct instructions for servicing.

Some notarial acts, such as witnessing signatures, taking declarations, or administering oaths in particular, are serious, private occasions and should be performed with due solemnity. They should be performed in a private room or area if possible.

The content of any statements in a document sworn or declared is not the consular officer's responsibility: the consular role is to service the document correctly

When placing stamps and seals on documents, do not cover any text in the document.

22.13 Confidentiality

Subject to the following paragraph, officers performing notarial services must not disclose any information of which they become aware during the process of issuing an authentication or apostille. This caveat applies to both personal and commercial information.

Despite the above, there is no concept of 'consular client confidentiality' for admissions of possible criminal conduct by a consular client. DFAT officers who become aware of information which could reasonably be suspected to relate to the commission of a serious criminal offence must follow the procedure set out in Admin. Circ N543/09 on Australian extraterritorial offences and the responsibility to report.

22.14 Fraud

Should an officer become aware that there are serious grounds to believe that a document has been illegally notarised or may be put to fraudulent use, they should immediately inform their supervisor, who should in turn advise Consular Branch and the Conduct and Ethics Unit of the Department in Canberra.

When staff have been presented with documents, the contents of which cause them concern or they believe them to be contrary to Australia's interests, they should refer the matter to their head of mission or director, who should seek advice from Consular Branch on an appropriate course of action.

22.15 Before providing a notarial service

The consular officer should draw the client's attention to the Disclaimer (22.10) and the schedule of fees (22.9) and calculate and advise the cost of the service requested before proceeding.

The officer should make sure the client qualifies for receiving notarial services from the Australian Government. (22.3)

When relevant, clients should be asked to bring photo ID to enable the consular officer to identify the client to ensure they are the person named on the document.

Precise instructions are provided on many documents. The consular officer should read the instructions on the document, and/or in this handbook and make sure they understand exactly what service is requested. They should then assemble the required tools and take the time to ensure the act is performed correctly and that all parties understand the process.

22.16 Notarial procedures explained

The following eight sections provide a detailed description of the most commonly requested notarial services: what they are for, who is authorised to perform the service, and steps to be followed.

Certifying copies of a document

Clients often require copies of documents to present to authorities for various reasons. The authorities require that the copy be certified by a notary or other authorised person as a true copy of the original.

Commonly requested are certified copies of university degree certificates, diplomas, academic transcripts, financial statements, birth and citizenship certificates, and drivers' licences.

When consular officers are asked to certify that a document is a true copy, they must satisfy themselves that the copy is in fact a true copy of the document. The certification should take the following form: 'This is a true copy of the document presented to me'. Certification of a document should not be provided if the document presented is, or appears to be, something other than an original document (a photocopy or facsimile).

When consular officers are asked to certify a document containing a photograph, such as a driver's licence, they are certifying that the copy is a true copy of the original document presented. They are not making any claims about the identity of the person.

If a client requires a different form of words, they should be advised to have the document certified by a Notary Public or the body from which the document originated. Consular officers should be aware that some jurisdictions allow only the originator of official documents to certify copies of those documents (eg. for a passport, the relevant passport office).

Authority to certify copies

All Australian diplomatic and consular officers and authorised locally-engaged staff can certify copies.

Steps to certify a copy of a document

1. Take the original document and make the required number of copies on the office photocopier. This ensures a true copy of the original document. If the document's size or shape make it necessary to accept a copy from the client, the consular officer must take the time to ensure the copy is the same as the original in every detail.

2. Stamp each copy with 'This is a true copy of the document presented to me' and sign with details of the officer's name, title and date added where indicated by the stamp.

3. Place the official stamp over part of the consular officer's signature, but do not obscure it. This renders the signature difficult to photocopy for fraudulent purposes.

When certifying a copy of a single document, irrespective of the number of pages and how many must be certified, the client is charged for a single act. However, if the client requests multiple copies and certification for each, then they are charged for each copy.

22.17 Witnessing signatures on documents

The law often requires that a client sign a document in front of a notary or other authorised person before using that document for legal purposes. The type of document that clients might bring for witnessing of signature vary greatly.

Commonwealth, state and territory legislation, regulations and court rules provide varying procedures for witnessing documents, affidavits and statutory declarations. Consular officers should be guided by the form provided by the client (the deponent).

Authority to witness signatures

Precise requirements for the effective witnessing of a document, including whether the document may be witnessed by an A-based officer or an authorised locally engaged staff, is dictated by the jurisdiction in which the document is to be relied (eg. commonwealth, state, territory, or foreign). Requirements may vary further, depending on subject matter. All Australian diplomatic and consular officers can witness signatures on documents, though clients need to check whether these officers are eligible witnesses for the purpose required (eg. some legislation does not list consular officers as eligible). Authorised locally-engaged staff can witness signatures on documents used in Commonwealth jurisdictions only.

The document should contain the full name, address and occupation of the deponent.

Clients should be informed that it is their responsibility to present the document to be witnessed in the correct form and to provide the correct instructions for witnessing. Consular officials must not draw up legal documents or guarantee the legal effectiveness of documents they witness.

The rank or appointment of the officer witnessing a document should be stated on the document under the signature of that officer. The official seal should then be fixed to the document.

Steps to witness a signature

The document usually contains specific instructions for witnessing: where to place signatures and other required information.

The client's photo ID should be checked to confirm they are the person named on the document.

The consular officer should point to the place indicated on the document for the client to sign, and ask them to sign. The consular officer should then sign in the place indicated for the witness, and complete the other details indicated on the document, then place the official stamp where indicated. They may need to use their personal name and title stamp if the document does not provide for these details.

The standard form of words for witnessing a signature on a document are shown below as an example, but may differ slightly from document to document.

Despite what is written in 22.15, if an applicant is unaware or unsure of the legislative requirements for witnessing a particular document, upon the client's specific instructions an A-based officer may perform the notarial act using the standard form of certificate. However, the A-based officer must ensure the client is informed that the post cannot guarantee the legal effectiveness of the document.

Witnessing a signature is a single notarial act. See 22.9 for the correct fee.

22.18 Statutory declarations

A statutory declaration is a solemn declaration of fact or belief, and may generally be made in relation to any matter. An affidavit is used to give evidence in court proceedings, while a statutory declaration is used to give evidence in most other circumstances.

The declaration must contain an acknowledgement that it is true and correct and that it was made in the belief that a person making a false declaration is liable to the relevant penalties for perjury (eg. in the case of a Commonwealth statutory declaration, imprisonment of up to four years). Commonwealth, state and territory jurisdictions in Australia all provide for making of Statutory Declarations, although the form varies slightly in each jurisdiction:

Commonwealth and the ACT

A person wishing to use a statutory declaration in connection with a law of the Commonwealth, the Australian Capital Territory or certain other territories must make the declaration in accordance with the Statutory Declaration Act 1959. The form for making a statutory declaration and the persons who can witness a statutory declaration are prescribed under the Statutory Declarations Regulations 1993. The form is on the Attorney General's Department website: www.ag.gov.au/statdec

State or territory

Persons wishing to make a statutory declaration in relation to a matter concerning state law needs to check the procedures for making and using declarations with the relevant state. A consular officer, but not an authorised locally employed staff, may be able to witness a statutory declaration for use in a state or territory. The form and procedure are generally similar to those of a Commonwealth Statutory Declaration, although legislation on the declaration and the penalties for perjury are different.

Authority to witness a statutory declaration

Subject to the requirements of the legislation, Australian diplomatic and consular officers can witness statutory declarations. Authorised locally-engaged staff can witness Commonwealth declarations, but not state or territory declarations.

Steps to witness a Statutory Declaration

The client usually brings the form already filled in with the statement they wish to declare, which can be handwritten or typed, or they may request a blank form to complete. (See DFAT Corporate database - Templates/ Forms.)
The client (declarant) must provide all the information requested on the form, including name, address and occupation.
The consular officer should check the client’s identity by asking if they are the person whose name appears on the declaration, and also check, to the extent possible, that the person is competent to make the statutory declaration.
The consular officer should then:

Witnessing a statutory declaration is a single notarial act (see 22.9). If the declaration has more than one page, and the declarant requests that the document be bound, there is an additional fee.

22.19 Affidavits

An affidavit is a written statement that allows the person making it (the 'deponent') to present evidence in court or other legal proceedings. The person making the affidavit must take an oath, or make an affirmation, that the contents of the affidavit are true and correct. Generally, it is an offence to swear or affirm to false information.

The consular officer's role is to witness the affidavit and administer the oath or affirmation.

The precise form of an affidavit is dictated by the commonwealth, state or territory legislation under which the affidavit is made or the proceedings in which the evidence contained in it is to be relied on. An affidavit that has not been drawn up correctly may not be effective. It is the deponent's responsibility to provide the document in the correct form and any additional witnessing/administering instructions. The deponent should be informed that the post takes no responsibility for the correctness of the form of an affidavit. When a deponent is unclear about the form that the document should take, they should be advised to seek professional legal advice.

Authority to witness affidavit and administer oath or affirmation

Only an Australian diplomatic or consular officer can witness an affidavit and administer the oath or affirmation. The rank of a consular officer at an overseas post empowered to do so may vary, depending on the jurisdiction and relevant legislation. Again, it is the deponent's responsibility to provide the correct instructions on this.

If a deponent is unaware or unsure of the legislative requirements for a particular document, an A-based officer should use the following standard affidavit procedure and inform the deponent that the post cannot guarantee the legal effectiveness of the document.

Consular officers do not assume responsibility for the correctness of the statements in any document sworn or declared before them.

Attachments

If there are any attachments to the affidavit, the consular officer should endeavour to confirm that they are in fact those referred to in the document. Each exhibit should be marked as follows:

'This is the Attachment marked <Attachment A etc> referred to in the affidavit of <deponent's name> sworn <or> affirmed at <place> before me on <day><month><year>. <Consular officer's signature>'

The person making the affidavit should then sign the document below the text to the right of the position in which the jurat will be placed (see below).

Only after all the text has been inserted and the document is signed by the person making the affidavit is the oath taken. The deponent swears or declares not only to the truth of the contents of the document but the authenticity of her/his signature and to her/his identity.

Steps to witness an affidavit:

Sworn at <city> in <country>

this day of <day><month><year>

<deponent signs before the oath>

before me, <name and position>

<Signature of Consular Officer>

Official seal

Other forms of oath

The person making the affidavit may request that they be sworn by some other form of oath (an oath may be administered in any form or manner which the deponent declares to be binding upon their conscience). Section 22.20 provides examples of oaths administered to deponents of non Judaeo-Christian belief.

When an affidavit is sworn by a person who appears blind or illiterate, the consular officer must certify in the jurat that the affidavit was read to the deponent in their presence, that the deponent appeared to understand the matter contained in the affidavit, and the deponent signed it with a mark or otherwise in the presence of that person.

Administering an affirmation

If the deponent indicates they have no religious belief, or that taking an oath is contrary to their religious belief or conscience, the person may be permitted to make an affirmation in lieu of swearing an affidavit. An affirmation has the same legal effect as an affidavit, but it is not taken on the Bible and does not refer to religious belief.

The officer should open the document at the page containing the deponent's signature and, pointing to that signature, request that the deponent repeat the following words:

'I, <full name of deponent> do solemnly, sincerely and truly declare and affirm that this is my name and handwriting, and that the contents of this my affirmation are true.'

The attestation (corresponding to a jurat in the case of an affidavit) should follow at the end of the document and take the following form:

Affirmed at <city> in <country>

This day of <day><month><year>

<deponent signs before oath>

before me, <name and position>

<Signature of Consular Officer>

Official seal

Affidavits often comprise more than one page, and may need to be bound with a ribbon and dry seal.

Servicing an affidavit usually comprises two notarial acts: administering the oath with witness of signature, and uniting documents and affixing a seal to the fastening (ie. binding).

Amending an affidavit

Affidavits must not be amended once they have been sworn or affirmed. If an affidavit needs to be corrected, either a second affidavit clarifying the matter in question to the first affidavit must be made, or the first affidavit must be re-sworn.

22.20 Alternative oaths

As a general rule, an oath may be administered to any person professing a religion other than Christian or Jewish in any form or manner which the deponent himself declares to be binding upon his conscience.

The following forms of oaths are effective if the consular officer receives an affirmative answer to the question: 'Are you bound by that oath (or by that ceremony you have performed) to speak the truth'.

Buddhist

'I declare, as in the presence of Buddha, that I am unprejudiced, and if what I shall speak shall prove false, or if by colourful truth others shall be led astray, then may the three Holy Existences, Buddha, Dharma and Pro Sangha, in whose sight I now stand, together with the Devotees of the twenty-two Firmaments, punish me and also my migrating soul; and I accordingly swear that this is my name and handwriting (or mark) and that the contents of this your affidavit are true.'

Muslim

A copy of the Koran is handed to the deponent. The deponent places his/her right hand flat upon the book and left hand upon his/her forehead and brings his head down to the book and into contact with it. The deponent then regards the book for some moments.

The deponent is asked: 'What is the effect of the ceremony you have performed?'

Deponent should reply: 'I am bound by it to speak the truth and I swear (or declare) . . . . . . . . . . . . . . . . . . . .'

Arabic

Some people will only take the oath on the Koran in the original Arabic language.

The deponent places his/her right hand upon his forehead and left hand upon the book. The Deponent then bends down to the Koran and kisses it. The consular officer says: 'By the ceremony that you have just performed are you bound by your conscience to speak the truth, the whole truth and nothing but the truth?'

The deponent answers: 'I am'.

Consular officer: 'Do you swear that this is your name and handwriting (or mark) and that the contents of this your affidavit are true?'

Deponent: 'I do.'

22.21 Authentication (also called legalisation)

Documents originating or executed in Australia, whether private or public, are often required to be authenticated or legalised before they can be used or relied on in a foreign jurisdiction. Authenticating a document means verifying the signature and/or seal which appears on a document, and making a statement on the document to that effect. An official stamp, seal or signature on a document is verified by checking it against a specimen held on file, then stamping the document with the authentication stamp. The sort of documents brought in for authentication include Australian birth certificates, divorce documents, driver’s licences, educational certificates and marriage certificates.

The purpose is to establish a chain of authentication in order to verify the signatures (and/or stamps or seals) appearing on a document. Each party that is required to authenticate a signature (and/or stamp or seal) must be able to verify the signature of the preceding authentication. Authentication does not, however, verify the truth or accuracy of the contents of a document.

The precise requirement for each authentication (ie. how many steps in the chain are required and the preferred route) is a matter for the authorities of the receiving state to determine. For example:

Occasionally a document must be presented in a receiving country which does not have consular representation in Australia. The Department or an Australian post abroad may be asked to verify, under its seal, a signature of the notary public or justice of the peace before whom the document is sworn.

Authority to perform authentications

All Australian diplomatic and consular officers, and authorised locally-engaged staff can authenticate documents.

Recognition of Signature

A consular officer can only verify a signature (or a seal, or both if they are absolutely satisfied that it is in fact that of the person/organisation whose signature (or seal) it purports to be. Photocopies of signatures/seals or stamps cannot be authenticated.

Steps to authenticate a document:

Wording of authentication

Signatures affixed by rubber stamp, computer or automatically generated signatures can be authenticated providing the authenticating officer is satisfied, following a comparison with a copy of the seal on file or the CMIS database, that it is the properly sanctioned 'mark' of the relevant authority or person.

Non-recognition of signature

If, after a comparison with the relevant file or CMIS database, the document to be authenticated does not include a signature that the consular officer recognises, the person presenting the document should be advised to return it, through private channels, to Australia for authentication. Sending the document to Australia through private channels need not preclude presentation of the document to a Departmental officer in Australia or to the Department. Only in exceptional circumstances should the document be sent by diplomatic bag to the Department.

If the matter is urgent, posts may request the DFAT office in the state or territory in which the document originated to fax a specimen of the signature to be authenticated so a comparison can be made.

If the signature or seal still cannot be recognised, the client should be asked to have the document certified by a notary before presenting it again for authentication.

Occasionally officers at post may be requested to authenticate the signatures of Departmental officers in various branches of the Department. When the signature is not personally known to the officer at post, the officer should directly request the signer to forward a specimen signature to the post.

Authenticating a document is a single notarial act. If it consists of more than one page, the binding fee is to be added. However, the fee for binding should not be charged if binding became necessary only because a second page was added to accommodate the stamp.

Public documents without signatures or seals

Several Australian authorities are producing, or intending to produce, public documents which bear no signature or seal.  These documents instead employ sophisticated security features built-in to the paper, such as the National Police Clearance Certificates issued by the Australian Federal Police.

The relevant sample documents will be entered into the CMIS database with instructions for authentication as the Department becomes aware of them. Officers should use the below form of authentication for these documents:

Download a sample of the form for authenticating a public document without seals or signatures [DOC 23 KB]

Steps to authenticate education documents

To prevent against incidents of fraud, DFAT officers should authenticate education documents in accordance with the following procedures:

22.22 Certificate of No Impediment to Marriage

Any legally performed marriage in an overseas country, which would have been legal had it been performed in Australia, is accepted as a legal marriage under Australian law.

The laws of some countries require that, before a foreigner may marry within their jurisdiction, they must produce a certificate issued by the authorities of the country to which they belong, stating that those authorities do not know of any impediment to the marriage. Such a certificate is known as a Certificate of No Impediment or a Nulla Osta Certificate.

Authority to accept applications and issue Certificates of No Impediment

There is no specific legislation in Australia authorising the issue of these certificates by diplomatic or consular officers. In practice, Australian diplomatic and consular officers and authorised locally-engaged staff at posts can accept applications and issue Certificates of No Impediment. It is also possible for the application to be witnessed by a person overseas who holds the local equivalent office or professional qualification, for example. a local notary would be acceptable. Any post or state and territory office of the Department may issue this certificate.

Certificates of No Impediment are issued to Australian citizens and Australian permanent residents.

It is the responsibility of the parties to the proposed marriage to ascertain whether the authorities in the country concerned require the certificate to be issued by the Australian embassy or consulate in that country, or whether a certificate issued in Australia is acceptable.

Eligibility for a Certificate of No Impediment

The Attorney-General has announced that, though same sex marriages are not recognised in Australia, from 1 February 2012, Certificates of No Impediment may be issued to Australians wishing to be married to their same-sex partner overseas. The issue of a CNI will allow same-sex couples to take part in a marriage ceremony overseas and to be recognised as being married according to the laws of that overseas country. While a same-sex marriage will not be recognised as a marriage in Australia it will be prima facie evidence of a de facto relationship for the purposes of a civil union under some state and territory laws.

From 1 February 2012 a Certificate of No Impediment can be issued if, on the basis of information supplied by the applicant, the couple meet the criteria which would render a marriage legal in Australia:

Information about marriage under Australian law is on the Attorney-General's Department's website: http://www.ag.gov.au/familiesandmarriage/marriage/pages/gettingmarriedinaustralia.aspx

With the exception of the marriage of same-sex couples, if there is any doubt about whether the marriage will be recognised in Australia, the certificate should not be issued, and the matter should be referred to Consular Policy and Training Section of DFAT which will consult the Attorney-General's Department when necessary.

Applicants under 18

From time to time, posts in countries where the marriageable age is less than 18 receive requests for the issue of Certificate of No Impediment for persons who are under the age of 18. The marriageable age on the application form is the Australian marriageable age, ie. 18 for both parties, not the local age. If either party to the marriage is domiciled in Australia, Australian law on marriageable age applies as far as recognition of the marriage in Australia is concerned, no matter where the marriage takes place. Under Australian law, exceptions to the requirement that both parties be 18 or older can be authorised only by a judge or magistrate, and then only in respect of a marriage between a people aged 16 or 17 and a particular person aged 18 or over. Parental consent to the marriage of a minor is not sufficient. Therefore, unless the Australian applicant produces authorisation for that particular marriage by an Australian court, a Certificate of No Impediment should not be issued if either party is under 18.

Parties to a marriage should be advised to consult a solicitor if unsure that their marriage will be recognised in Australia, including a doubt that an overseas divorce is recognised by Australian authorities.

Under Australian marriage law, a couple cannot be married more than once and cannot be married in Australia if they have already been married under the law of another country. However, under the Marriage Act there is nothing prohibiting a couple from having another religious ceremony after they have been married, but it cannot purport to be a ceremony of marriage and no documents can be prepared or filed in relation to the religious ceremony.

Steps to issue a Certificate of no Impediment

Clients are to complete and submit the form Application for Certificate of No Impediment to Marriage, which is then witnessed by the consular officer.

In Turkey, Poland and Portugal, the application form is a Statutory Declaration and the procedure for servicing Statutory Declarations should be followed. See 22.23 for an example of the form.

In all other countries, applications for Certificates of No Impediment are administrative declarations in front of a witness, and the usual procedure for witnessing a signature should be followed.(22.24)

The consular officer then prepares the certificate in accordance with the sample 22.25, provided by the Attorney-General's Department. Although it is strongly preferred that posts use the text provided, some posts, for local requirements, have had amended versions approved for local use. There is a template in the Signatures and Seals database in CMIS which enables posts to print off a certificate pre-formatted with post details.

When required by a foreign state, posts may issue certificates in a foreign language, provided they are confident that the translation accurately reflects the English text in 22.25. Posts requiring amended wordings for certificates should approach the Consular Policy and Training Section for advice.

Clients can download application forms from the DFAT Smartraveller website. In Australia, they can complete the form and have it witnessed by a qualified witness listed on the application form. They can then present it at any DFAT office. Clients overseas can complete the form and present it at an Australian mission for witnessing.

It is desirable to sight documentary evidence of the applicant's and his/her partner's date of birth, nationality, Australian residency and, if either party is divorced or widowed, the relevant divorce order or death certificate.

In Turkey, Poland and Portugal it is mandatory to sight applicants' IDs, birth certificates, citizenship certificates, or divorce orders, etc. when accepting the application.

The consular officer should sign the certificate and add their details where indicated on the form, then complete the process by adding the official stamp. A hard copy of the final certificate complete with signatures and seals should be retained on file, along with any supporting documentation.

The fee charged for the preparation of this certificate will be in accordance with item 6 of the Consular Fees Act 1955. This includes any witnessing services provided in conjunction with the relevant certificate.

22.23 Application for certificate of no impediment to marriage - Portugal, Poland and Turkey

22.24 Application for certificate of no impediment to marriage - other countries

22.25 Certificate of no impediment to marriage

22.26 Preventing fraud - binding and other procedures

It is important that legal documents are not tampered with or have anything added to them after statements have been sworn and the document serviced. Binding documents, lining through blank spaces, initialling pages and alterations, and placing stamps over signatures help prevent this.

Documents (and exhibits) covering more than one sheet of paper can be bound to assist in preventing extra pages being fraudulently added after witnessing. However, it is not necessary for the consular officer to bind those pages unless a client specifically requests it or if, due to reasons of space, the authentication stamp needs to be attached to the document on a separate sheet. In these cases, the entire document must be bound with ribbon, with the ends of the tape covered by a notarial wafer affixed to the sheet containing the certificate/jurat/attestation. The official seal should then be impressed through the wafer and that part of the document upon which it is affixed, but not through the whole document. Before binding a document, the consular officer must ensure it is signed on every page by the deponent. This precludes the possibility of adding or deleting sheets after the document has been bound. However, note that the requirement to sign every page is only for documents that DFAT is binding. Documents of more than one page that do not need a DFAT bind do not need to be signed on every page.

Interlineations and alterations must be authenticated by the initials of the deponent and the consular officer. In the case of an erasure, any words or figures written over the erasures are to be written in the margin and the erasure and the words written in the margin initialled by the deponent and the consular officer.

When there are large spaces at the end of statements or between them, the client should be prompted to draw a Z-shaped line through these to ensure nothing can be inserted later. Statutory Declarations in particular often require this.

The official stamp (wet seal) should, if possible, be placed over part of the consular officer's signature (usually over the top right hand corner) to make it difficult to photocopy that signature for fraudulent purposes.

Binding a document

Binding a document makes it impossible for anyone to add another page without it being obvious. It involves tying the pages of the document together with ribbon rather than stapling them, and placing a dry seal over the trailing ends of the ribbon

To bind a document correctly you need:

Steps to binding a document

  1. Put a hole through the top left hand corner of the document and all its pages with the hole punch, about 2 cm from each edge.
  2. Fold the ribbon in half and push the folded end through the hole.
  3. Turn the trailing ends over the top of the document and pass them through the loop in the folded end. Tie a small knot.
  4. Pull the knot around to the front of the document, extend the trailing ends of the ribbon and place them so they form a v-shape about 2 cm apart on the page.
  5. Place a red wafer seal so that it covers both the trailing ends of ribbon. Press it down firmly.
  6. Using the embossing tool, insert only the front page under the seal and push the handle down firmly to impress the official seal onto the wafer.

If there is not enough room to place the trailing ends of the ribbon and the seal on the front page without covering up text, pull the knot to the back of the page and seal the trailing ends on the back instead.

23.1 Authority to issue apostilles

Only Australian diplomatic and consular officers working in DFAT Canberra, or in a state or territory office can issue an apostille. An apostille can only be placed on documents bearing the signature/stamp/seal of someone holding an Australian public office, such as an Australian government official or an Australian notary public. If the document is not an Australian public document, it must be notarised by an Australian notary public before an apostille can be requested. Once an apostille stamp is affixed to a public document, it does not need to be re-certified overseas by an Australian post.

Advise clients seeking an apostille to submit the relevant documents (providing they are public documents) to the DFAT state or territory office in which the document was issued. If there is doubt about whether a document qualifies as a public document, the client should seek clarification from the relevant state or territory DFAT office before the document/s are sent to the office. The notarial guidelines provide further advice on the issue of apostilles.

Authenticity of an Australian apostille

The Canberra office and each state or territory office maintain separate registers of the apostilles they have issued. The registration number usually consists of one alphabetical character followed by a four-digit number. The alphabetical character denotes which state or territory office has issued the apostille: A for Adelaide, B for Brisbane, C for Canberra, D for Darwin, H for Hobart, M for Melbourne, P for Perth and S for Sydney (eg. the first apostille registered in Sydney was numbered S0001). Apostilles issued in Canberra and numbered C28-C532 inclusive, while not containing leading zeroes in the registered number, are valid.

Steps to issue an apostille

The issuing officer should:

  1. Check the document is an Australian public document, or bears the signature/stamp or seal of someone holding a public office in Australia.
  2. Open the Signature and Seals database in CMIS and click on the name of the person whose signature or seal to be authenticated. The database will show an example of their signature or seal.
  3. Compare the two. If the issuing officer is completely satisfied the signature and/or seal on the document is the same as the one demonstrated in CMIS, they may go ahead and authenticate the document by placing the apostille stamp on it, signing it, filling in the details requested, and placing the official stamp over the corner of their signature.
  4. The issuing officer should then impress the official dry seal over a red wafer onto the place indicated, using the embossing tool.
  5. Register the apostille.

Form of the certificate

The certificate is in the form of a square with sides at least 9 centimetres long as shown below:

The apostille certificate must not be placed over any of the text of the document. If necessary, it can be placed on the back of the document, or another page added. If another page is added, the document must be bound. (see binding 22.26)

CMIS can be used to print onto the document an apostille stamp, already completed with the required details.

Issuing an apostille is a single notarial act described in 22.8 on the consular fees schedule. If it consists of more than one page the binding fee is added, unless binding only became necessary because a second page was added to accommodate the stamp.

23.2 Taking evidence

The conventions on Legal Proceedings in Civil and Commercial Matters, as well as the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (1970) and a number of bilateral agreements, make provision for taking evidence for use in civil proceedings in Australia in countries that are party to the conventions. When no formal arrangements exist between Australia and foreign countries for taking evidence, requests for assistance of the foreign court are based on international comity (courtesy).

There are four main procedures for taking evidence:

Available methods vary from country to country, depending on the terms of the conventions and the reservations by countries which have ratified them. The Internet web site of the Australian Government Attorney-General's Department provides comprehensive information on the procedures applicable in foreign countries: http://www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/Takingofevidenceacrossinternationalborders.aspx

Canberra provides detailed instructions when evidence is to be taken in a foreign country by a consular officer. Taking evidence from a witness in a foreign country by an Australian court via video link is generally not provided for in the relevant conventions or agreements. Requests to take video evidence are dealt with as a matter of comity (international courtesy). Posts may be requested by Canberra to determine whether local authorities object to video evidence in their territory by Australian courts, and provide details of the procedures that must be followed before this evidence can be taken.

Appointment of a special examiner

A diplomatic or consular officer may be appointed as a special examiner to take the evidence. The function of the special examiner is to chair the proceedings. Counsel for both parties is usually present.

Generally, the special examiner must swear in the shorthand reporter and interpreter, if any, and then the witness. The counsel proceeds in turn with their examination of the witness. Should either counsel object to a question by the other, this must be noted in the record. Once the examination is completed, the special examiner must read the depositions to the witness and have them sign them. The special examiner will then sign and seal the document at the conclusion of the depositions. The document must be returned to the relevant court in Australia.

Canberra will provide consular officers with the necessary instructions, and the appointed officer may also be able to discuss procedure with counsel, prior to the commencement of the proceedings.

23.3 Letters of no objection

Consular staff at posts are often called upon to provide documents titled Letters of No Objection. These are generally required as part of the paperwork submitted to a host government in relation to, for example, Australians applying for visas from third countries. Posts providing these letters should not indicate support for this travel, but rather that the Australian government does not object to it.

When the Letter of No Objection is for a country with a Do Not Travel warning, consular staff should request that the client sign a declaration stating that:

Letters of No Objection for entry into Gaza require approval from either the Minister or the Consular Policy and Training Section, depending on the circumstances.

The consular fee for this service is in 22.8.

23.4 Service of documents overseas

Australia is a party to a series of uniform conventions on legal proceedings in civil and commercial matters. The conventions which deal with the methods of serving legal process and taking evidence, generally direct service requests, are made through the diplomatic channel to the relevant authority in the country to which the request for service has been directed.

Requests for service of legal documents overseas generally originate in the superior courts of the states and territories, following an application by one or both parties to the proceedings. Once the documentation is complete, including translations into the language of the requested country, it is sealed by the court and sent to the relevant state premier's department which will, in turn, ask the Department to arrange for service. The Department sends the documents to the appropriate post.

The post's responsibility is to ensure that the request for service is passed to the competent local authorities (in the first instance, the Foreign Ministry) and, once service has been effected, to advise the Department of the costs so these may be recovered from the party making the original request.

When served documents are returned to the post by the local authorities, it is important they are accompanied by a Certificate of Service or an Affidavit of Service. The Certificate of Service, which is to be returned by the post to the Department, should indicate how the person to be served was identified, how service was effected, and the date the service was effected. It should also be signed by the person who served the documents.

When no convention for legal proceedings exists between Australia and a foreign country, persons wishing to effect service in that country are generally referred to private legal channels for assistance. There are, however, exceptional cases when the Department will assist in the absence of such a convention. For example Japan, where service of foreign process is not permitted through private channels..

23.5 Service on Australia-based staff

Australia-based staff overseas are not immune from the jurisdiction of the Australian courts and authorities but are, generally, immune from the service of legal process in the country to which they are accredited. This makes the service of Australian legal documents on them through the usual channels problematic.

Heads of Mission may therefore be requested to (in confidence) serve documents arising from Australian court proceedings on Australia-based staff in their mission. Service by a Head of Mission would not involve the costs of attempted service by an agent or local authority, which could fall to the officer. The Head of Mission may, at their discretion, choose either to serve the documents on the officer or return them un-actioned to the Department.

23.6 Service of documents in Australia

It is unlikely that Australian missions abroad will be approached for advice or assistance in serving foreign process in Australia. In the case of countries party to the relevant convention, requests for service from foreign courts are transmitted to the appropriate state or territory authorities for action via that country's mission in Australia and the Department.

When no convention exists, persons wishing to serve foreign civil process in Australia should make their own arrangements through private legal channels. If service is required by the initiating foreign court to be effected through diplomatic channels in Australia, assistance may be provided as a matter of comity. Further information on the service of process abroad and in Australia are on the Australian Government Attorney-General's Department's website at http://www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/Servingalegaldocumentacrossinternationalborders.aspx

23.7 Authentication of school and tertiary education certificates

School Certificates

Persons seeking authentication of school certificates issued by state education authorities should be asked to produce the original of the documents or a copy or photocopy certified by the authority which issued the original document. Posts should not authenticate educational certificates unless the signature of the authorised signatory is known to them.

Tertiary Education Certificates

Due to high incidence of fraud, all tertiary education certificates, regardless of whether they are computer generated or bear original signatures and seals, must be certified by the Student Administration area of the issuing institution as being a ‘true and accurate record’. Should the originating institute not wish to perform this certification, the document must be notarised by an Australian Notary Public. Once this certification has been obtained, the document may be authenticated by the Post after checking the signature of the Student Administration officer (or Notary Public) against the signatures and seals database.

It is the client’s responsibility to obtain the certification from the educational institution or Notary Public.

23.8 Educational certificates

Frequently, before a student can be enrolled abroad, a school will require a certificate which states the level of education achieved in Australia. This should be provided in general terms, on the basis of evidence produced by the applicant. As the requirements of Australian states vary in terms of years of attendance and definition of levels reached in both primary and secondary education, these certificates should be based on years of study. For example, if a student has completed Third Form in Victoria, the certificate should state that the student has completed nine years of schooling.

When a student has not completed a full year, the certificate should indicate this by stating in terms of the example above, that the student has completed eight years of schooling, and has attended one term of the ninth year of education.

A certificate may include only details supported by acceptable documentary evidence. If the evidence available is inadequate, officers should suggest writing to the school or institute involved to obtain the necessary evidence.

23.9 Sample educational certificate

These certificates should take a form similar to the following:

23.10 Eligibility to enter a tertiary institute

Posts may be asked to provide a certificate stating that an Australian is eligible to enter a tertiary institute in Australia. This certificate should not be given without documentary proof.

Persons educated in Australia who seek certificates confirming their eligibility to enter tertiary institutes in Australia, should be advised to request this statement from the appropriate authority in the relevant state. When this statement is subsequently produced, the consular officer may then issue a certificate.

23.11 Standing of an educational organisation

In some cases, particularly organisations at the tertiary level, a certificate is required stating that a particular Australian educational organisation has a particular educational level.

These certificates can only be given when consular officers are aware that the information is correct. The required information can frequently be obtained from university or other tertiary handbooks.

23.12 Supervision of examinations overseas

On some occasions posts may be requested to supervise examinations arranged for Australian state or federal educational institutions. However, this facility is extended only when satisfactory local alternatives for supervising examinations are not available. Offices of the British Council can often assist in providing supervision for examinations.

When no alternative local arrangements can be made, posts should attempt, as far as practical, to provide assistance. Spouses of A-based staff can often assist in these cases. While the post will facilitate contact between the examiners and supervisors, all financial arrangements should be made directly between those two parties.

When examination supervision is sought by an Australian commercial education service provider, even when that body may be contracted by the Australian government to deliver educational services in Australia or overseas, it is not appropriate from a commercial ethical perspective for posts' resources to be used for this. Posts may, however, assist a commercial provider in finding a suitable organisation in country to provide the supervision service on a commercial basis.

When conducted by post staff, all fees for supervision of examinations by officers should be paid into revenue-Miscellaneous-Consular Fees. It is not expected that any circumstances will require an examination to be supervised outside office hours and posts should decline requests for this. If, however, exceptional circumstances require an examination outside office hours, the officer undertaking supervision may be entitled to overtime.