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.

The Convention applies only to "public documents" 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:

However, the present Convention shall not apply:

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

• a sealed original or duplicate order of a court signed by a judicial officer or a registrar;
• a sealed original or duplicate certificate of judgment signed by a registrar;
• an original grant or exemplification of probate or letters of administration signed by a registrar of probates.

Administrative documents

• a certified copy (issued by a registrar and printed on security paper) of a birth, death or marriage certificate;
• an original extract (issued and signed by an authorised person) from an official register, such as the ASIC database or a lands titles registration database or an intellectual property register;
• an original police criminal record check or fingerprint report signed by an authorised officer and printed on security paper;
• original academic and education credentials.

Notarial acts

• an original notarial act in private form (a notarial certificate of the kind most commonly seen in Australia) signed and sealed by the notary;
• an original notarial act in public (or authentic) form signed and sealed by the notary.

Official certificates

• a notarial certification of a signature or of a copy document;
• a jurat to an affidavit, or a declarat to a statutory declaration, by which a notary certifies that the document has been duly sworn, affirmed or declared.

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 Secretary of the Department of Foreign Affairs and Trade, may refuse to issue an apostille in circumstances which may include the following:

• the public document is not to be produced in a State Party;
• the public document is expressly excluded from the operation of the Convention;
• the document is not a public document under Australian law;
• the origin of the public document cannot be verified;
• the contents of the underlying document are offensive;
• the underlying document is suspected of being fraudulent.