Editing software allows a scanned document to have details changed without leaving obvious traces of alteration. Parties will therefore commonly seek verification that a copy of important documents does in fact reflect the unaltered original version. Requests generally ask for a “certified copy”, or less commonly a “notarised copy”. The purpose is to have a third party verify the copy is a true and correct copy of the original, though in practice there can be a large gap of understanding between what the third party is actually doing and what the recipient may think they are doing.
The concept of a “certified copy” is not new. References to a certified copy being used in evidence arise from some of the earliest cases in Australia.[1]
Other that specific requirements as apply under the Powers of Attorney Act to creating certified copies of general or enduring powers of attorney, there is no general rule as to how a certified copy may be made in Queensland.[2] There is no obligation for a certified copy to even be of an original document, and it is not unusual for wording on a certified copy to clarify that the original was not sighted.[3] Thus it is for the recipient to be satisfied with the form of certification used, unless there is a legal requirement for the document to be a certification of an original.[4] This compares to the position in Victoria where there is a specific statutory provision on how a certified copy of an original may be made, and when certification of a copy is permitted.[5]
Lawyers
Some Queensland legislation directly authorises a lawyer to certify a copy of particular documents.[6] However, except for those areas of direct authority, there is no general legislative provision indicating that a generic reference to a “certified copy” includes a copy certified by a lawyer. Notwithstanding that lack of legislative support, a copy certified by a lawyer will usually be accepted, presumably in reliance on the ethical obligations on lawyers.
Justice of the Peace and Commissioner for Declarations
Justices of the peace or commissioners for declarations have the power to “attest” any instrument or document that may be attested under any Act or law.[7] Some legislation directly authorises a justice of the peace or commissioner for declarations to certify a copy.[8] Other legislation refers only to a “certified copy” without any clarification of the process of certification or who can so certify the document.[9] It appears in those situations the Justices of the Peace and Commissioners for Declarations Act 1991 authorises the making of a certified copy within the power to “attest”, and such a document is then admissible in evidence under section 116 of the Evidence Act.[10] Where the law in question directly allocates the power to certify a copy to only specific persons, it is unlikely that justices of the peace or commissioners for declarations can certify the document.[11]
Notary Public
There are no domestic document categories that can only be certified by a notary public under Australian law, though a notary public is often listed amongst others as someone can perform that function.[12] A document is “notarised” when it is verified by a notary public. Documents that require copies to be sent internationally are often notarised to ensure that they are in a form which a foreign recipient will accept. Foreign authorities may require the copy to be both notarised and legalised, the latter being a process by which the Department of Foreign Affairs and Trade attaches an apostille to a notarised document to confirm that the signature and seal of the notary public appears genuine.[13]
In most other States the appointment of a notary public is governed by legislation, such as in New South Wales where any lawyer with at least five years’ standing may apply to the Court for appointment.[14] No such legislative process applies in Queensland, so that somewhat incredibly a Queenslander seeking appointment as a ‘notary public’ must ultimately apply to the Faculty Office of the Archbishop of Canterbury in England.[15] As in New South Wales an applicant must be a lawyer, but in Queensland they must have at least ten years’ standing. The solemnity of such an appointment is further entrenched by requiring references from two solicitors, two existing notaries, five “local business people”, as well as judicial approval as a person who would constitute a proper appointment.[16]
The concept of a notary public is foreign to many other jurisdictions. Any act that is required to be done by a notary public by any Queensland court or matter can be done by any Australian consular official in any location outside of Australia.[17]
[1] E.g. In re Jane New [1829] NSWSupC 11; (1828) NSW Sel Cas (Dowling) 549, 551, 874.
[2] Part [10.8] Proof of Power of Attorney.
[3] See Queensland Government documents: Duties of Justices of the Peace (Qualified) handbook and the Duties of Commissioner for Declarations handbook.
[4] For example, see Evidence Act 1977 (Qld), s 105(3).
[5] Oaths and Affirmations Act 2018 (Vic), Div 2.
[6] For example, see Part [10.8] Proof of Power of Attorney.
[7] Justices of the Peace and Commissioners for Declarations Act 1991 (Qld), ss 29(1); 29(8).
[8] For example, see Part [10.8] Proof of Power of Attorney.
[9] For example, see Evidence Act 1977 (Qld), s 74; Land Title Act 1994 (Qld), s 22.
[10] McCollom v Kovarik [2013] QDC 111, [28]-[30].
[11] Evidence Act 1977 (Qld), s 105.
[12] For example, see Part [10.8] Proof of Power of Attorney.
[13] Department of Foreign Affairs and Trade, Documents We Can Legalise, 30 January 2024, https://www.smartraveller.gov.au/consular-services/notarial-services/documents.
[14] Public Notaries Act 1997 (NSW), ss 5-6.
[15] The Society of Notaries of Queensland Inc, “How to Become a Notary”, https://societyofnotariesqld.org/how-to-become-a-notary/ (as accessed on 25 February 2024).
[16] Ibid.
[17] Australian Consular Officers’ Notarial Powers and Evidence Act 1946 (Qld), s 3. Note the definition of “Commonwealth” under the Acts Interpretation Act 1954 (Qld), Schedule 1, is the Commonwealth of Australia, not the Commonwealth of Nations.