The Convention of 5 October 1961, Abolishing the Requirement of Legalisation for Foreign Public Documents, known as The Hague Apostille Convention ("the Convention"), provides for authentication of documents by way of apostille when both the state of origin and the state of destination are States Party to the Convention.
However, the Convention applies only to "public dcuments" created or executed in the state of origin. Article 1 of the Convention states:
The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.
For the purposes of the present Convention, the following are deemed to be public documents:
a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.
However, the present Convention shall not apply:
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs operations.
The law of the state of origin dictates whether a document is a public document, irrespective of the law of the state of destination. The law of the state of origin may treat a document as a public document even if it falls outside the four categories listed in Article 1.
Examples of the types of Australian documents that may be included in the four categories of public documents are:
Documents emanating from an authority or an official connected with the courts or tribunals of the State
In such a case, it is the official certificate, and not the underlying private document, which is the public document for the purposes of the Convention.
Simple (uncertified) photocopies and scanned copies are not considered public documents for the purposes of the Convention.
The Australian "Competent Authority" under the Convention, the Department of Foreign Affairs and Trade, may refuse to issue an apostille in circumstances which may include the following: