Notaries are often asked to intervene in relation to documents
from a foreign jurisdiction which are written in a foreign language. Such
documents present particular challenges unless the notary is conversant
with the relevant foreign law and able to read and understand the
relevant foreign language. Further challenges arise if the
appearer is fluent in the relevant foreign language, but not in English.
The notary must carefully observe the following principles:
The notary's paramount duty is to the transaction itself,
rather than to any individual or entity.
The notary must be able to verify that the appearer (the
person who is to sign the document) knows and understands the meaning
and effect of the document. The notary can only do this if he/she also
understands the meaning and effect of the document.
If part of the notary's function is to verify the content
of the document or to verify that the form or content of the document
complies with Australian law or the relevant foreign law, or both, the notary must
be able to do so of his/her certain knowledge and not merely from
information supplied by someone else.
If part of the notary's function is to verify a
translation of the document, this will only be possible if the notary
knows of his/her certain knowledge (so far as it is
possible) that the translation is a true and
accurate translation of the meaning and effect
of the document.
Therefore, it will be important for the appearer to produce to the
notary detailed written instructions from the foreign jurisdiction, so
the notary may know precisely what is required.
The notary will also usually require that the document be translated by
a translator who is competent to translate a document of the type
concerned. This means competent not only to translate the language, but
also to translate the legal or other technical terminology so
that the legal or other effect of the language is made clear. The
translator will be required to swear to the accuracy of the translation.
Dual language documents from a foreign jurisdiction (foreign language
and English, usually in columns side by side) are sometimes presented
for notarial intervention. In such documents, the foreign language
version is considered the definitive version and a signatory will be
taken to have signed the foreign language version and not the English
version. Therefore, if the English version is later found to be an
inaccurate translation, the signatory may have no recourse. An appearer
with a dual language document should therefore consider seriously
whether the document should be checked by a competent professional
translator before it is signed.
Notaries are sometimes asked to sign and seal pro forma
certificates which have been drafted in foreign jurisdictions and
provided with the intention of assisting in the process of notarial
certification. A notary will never complete, or sign, or seal a form of
notarial certificate written in a language which he/she cannot
understand, even if it is accompanied by a purported English