Apostille Bill

Order for Second Reading read.

6.26 pm

The Second Minister for Law (Mr Edwin Tong Chun Fai): Mr Deputy Speaker, Sir, I beg to move, “That the Bill be now read a Second time”.

Sir, this Bill gives effect to the obligations under the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as the Apostille Convention.

Sir, in my speech, I will explain why Singapore intends to accede to the Apostille Convention and also set out the key features of the Bill to this House.

Singapore's continued success depends very much on our ability to remain a vibrant international business and commercial hub. In a world that is at risk of turning inward, we have doubled down on our commitment to remain open and connected to the world.

We welcome the best companies from around the world to be sited in Singapore – bring their base into Singapore and do their business in, from, or out of Singapore.

We also encourage and support our own companies to pursue regional or even global ambitions.

This can only work by ensuring that the business environment is facilitative of cross-border transactions and activities.

The COVID-19 pandemic has not changed our approach, but has made it even more imperative that we remain open and connected.

Acceding to the Apostille Convention is a step in pursuit of this commitment. It signals in concrete terms to the international community that Singapore remains open for business.

Let me briefly explain what the Convention does.

Sir, cross-border transactions and activities often involve the use of public documents issued by public authorities from one state, to support transactions taking place in another state. For example, a person seeking to relocate or study abroad may need to produce identification documents, academic transcripts, proof of residency, proof of employment or income and other such similar supporting documents. Businesses seeking to acquire properties overseas may need to produce incorporation documents and also produce official business profiles.

Many states require that foreign public documents be “legalised” before they are recognised and accepted in those states.

Whilst differences exist amongst states, the process of “legalisation” typically involves the authentication of the signature, the seal or the stamp on a local public document by a series of different public officials along a “chain”, examining the document and reviewing at each step the different aspects of legalisation, where the ultimate authentication is recognised by the state of destination. This is oftentimes cumbersome and costly, and not to mention time-consuming as well.

The Apostille Convention replaces the process of “legalisation” with a one-step process involving a single certificate issued by the state’s designated Competent Authority. This certificate is known as an apostille.

The Bill gives effect to the obligations under the Apostille Convention domestically, so that Singapore can become a Contracting Party.

We will be in good company: there are 118 Contracting Parties to the Apostille Convention, including some of Singapore’s major trading partners such as the USA, the UK, India and the EU member states.

Acceding to the Apostille Convention bolsters Singapore's reputation as a bustling and interconnected hub, and will serve as a statement of Singapore's intent to remain committed as a global player in facilitating international movements, transactions and activities.

When Singapore becomes a Contracting Party to the Apostille Convention in 2021, other Contracting Parties will be obliged to waive the legalisation requirement for public documents issued by Singapore authorities and must accept the apostilles issued by Singapore's designated Competent Authority. This will save cost and time for persons who seek to use Singapore-issued public documents in other Contracting Parties. Likewise, Singapore's authorities will be obliged to accept apostilles in place of legalisation for incoming foreign public documents from other Contracting Parties, where applicable.

Sir, I will now take the House through the key features of the Bill. The purposes of the Bill are fairly straightforward and are three-fold.

First, the Bill provides for apostilles to be issued for Singapore public documents by Singapore's Competent Authority. In this case, the Singapore Academy of Law or SAL will be designated as Singapore's Competent Authority under the Convention and will be authorised to issue apostille certificates on Singapore public documents as defined in clause 14 of the Bill.

Presently, MFA performs the legalisation function in respect of outgoing documents issued out of Singapore. This function is needed for outgoing public documents intended for use in Contracting Parties with legalisation requirements, until Singapore becomes a Party to the Convention. This function will continue to be needed for outgoing public documents intended for use in non-Contracting Parties with legalisation requirements. The legalisation and apostillisation functions will thereafter be centralised in one agency – this is of course more user-friendly and also efficient. Clause 21(2) of the Bill therefore transfers the legalisation function from MFA to SAL.

The transfer of the legalisation function from MFA to SAL ties in with SAL's current authentication services, making it more convenient for the legal industry and the public. SAL is expected to take over the legalisation function from MFA by January 2021.

Second, clause 9 of the Bill expressly exempts public documents executed in other Contracting Parties from any requirement of legalisation. Our written laws do not currently require incoming foreign public documents to be legalised, before they are recognised and accepted in Singapore. As an administrative practice, however, some agencies would require foreign documents to be so legalised. Under the Bill, Government agencies may no longer require such foreign documents to be legalised if the documents come from a Contracting Party to the Convention. In its place, these agencies may require the apostilles.

Third, the Bill provides for the effect of apostilles issued by other Contracting Parties and facilitates, but does not require, their use. Clause 11 of the Bill provides that the origin of a foreign public document affixed with an apostille is presumed to be sufficiently proven, unless the contrary is established. This means that the apostille is presumed proof of: one, the authenticity of the signature on the document; two, the capacity in which the person signing the document has acted, in other words, the person's capacity to sign the document; and three, where appropriate, the identity of the seal or stamp that the document bears. The apostille does not, however, certify the contents of the underlying public document; neither is this the position for legalisation as well today.

The Bill also provides for the effect of apostilles, so as to facilitate their use. The Bill does not require apostilles to be used, unless as a replacement for the formality of legalisation which certain Government agencies may have imposed. This means that for foreign public documents which Government agencies do not require to be legalised, apostilles may not subsequently be required. The rationale behind this is to ensure that agencies do not take a regressive step by requiring the formality of an apostille, when previously there had been no other formality requirements needed. However, apostilles may be required for new classes of foreign public documents created after Singapore's accession to the Convention.

The Bill also contains a related amendment to the Evidence Act. While the Evidence Act is not contrary to the obligations under the Apostille Convention, this amendment will allow for foreign public documents from Contracting Parties to also be proved by an apostille being affixed on such documents. The proposed amendment clarifies that the operation of Part 2 of the Bill is not affected by the sections of the Evidence Act which relate to the way in which public documents are proven.

Sir, in conclusion, this Bill will facilitate cross-border use of public documents by abolishing the requirement of legalisation for public documents from fellow Contracting Parties; and secondly, replacing legalisation with the use of a one-step process involving the use of apostilles that will be internationally recognised and accepted.

These measures will streamline and modernise the process for authentication of public documents for recognition across different jurisdictions and no doubt, as I have said earlier, save time and expense for parties. Mr Deputy Speaker, Sir, I beg to move.

Question proposed.

6.37 pm

Mr Murali Pillai (Bukit Batok): Mr Deputy Speaker, Sir, hon Members may be forgiven if they view the debate on this Bill as boring, notwithstanding the valiant attempts of the speakers on this Bill, myself included. The fact is, that the topic of legalisation of public documents is hardly something that will excite one's senses.

I, on the other hand, am feeling elated. Why? Because, I suggested in this House that Singapore ratify the Apostille Convention by way of a Parliamentary Question that came up for answer in this House on 20 November 2018. Then, the hon Minister for Law informed this House that the Government was looking into this matter. About two years later, the Apostille Bill is presented in this House for consideration.

If passed, Singapore will likely become party to the Apostille Convention next year which incidentally is the 60th anniversary of the Convention. Whilst the subject matter of this Bill may be boring, it is one that can have positive impact for Singaporeans as outlined by the hon Minister. Mr Deputy Speaker, Sir, with your permission, may I be allowed to flash two slides on the LCD screen?

Mr Deputy Speaker: Yes, most certainly, please.

Mr Murali Pillai: Obliged, Sir. It seems to me that it is not working. Never mind Sir, in the interest of time, I will just proceed. I was about to show the legalisation process, but thankfully, the hon Minister had outlined the legalisation process. Without the Apostille Convention, there are four, possibly five stages, which are required to be undergone before the document in the state of origin, is recognised in the state of destination.

With the Apostille Bill passed and Singapore's ratification of the Apostille Convention, this is reduced to a one-step process. That, as the hon Minister mentioned, translates to enormous savings of time and costs because you no longer have to go to the consulate authority to have the documents legalised. Not only that, as the hon Minister mentioned, the apostille once issued, is recognised in about 118 countries, which includes all the major countries in the world, the business centres in the world too. So, Singaporeans would get the benefit of the convention to have their vital documents issued by public authorities recognised in these countries. These documents include birth certificates, marriage certificates and death certificates

It also, as the hon Minister mentioned, strengthen Singapore's a attraction as a premier business and international dispute resolution hub. This is because, oversees public documents can also be readily recognised here, for business purposes as well as for legal proceedings here.

So, plainly there are many positives about this Bill. While Singapore may be a relatively late adopter of the Apostille Convention, it has an opportunity to be a leader in the digitalisation of the apostille process. Particularly in respect to two areas, e-Apostille and e-Registers.

The e-Apostille system enables Singaporeans to apply for a public document to be issued with an e-Apostille system online. Hopefully this can be done via SingPass in the near future. The e-Register system will enable a person to verify online the authenticity of an apostille issued by the Competent Authority, in this case, it is the Singapore Academy of law. It is plain to see how beneficial the digitalisation of the apostille processes will be for the users of this systems. The processes would be made more secure, efficient and of course environment-friendly too. I would be grateful for the hon Minister’s view on my suggestion.

I also have a query with respect to fees that will be charged for issuance of the apostille by the Singapore Academy of Law. I note that MFA currently charges $10 for the legalisation of each document. From my research, I noted that the average fee among Convention countries as at 2016 was 15 Euros, which translates to about S$24. However, there is a wide range from as low as one Euro to as high as 70 Euros. For the Apostille process to be cost-effective for fellow Singaporeans, the fee imposed should also be reasonable. I wonder whether the hon Minister will be able to guide us in this area.

Sir, before I end my speech, may I say that this is an instance of how backbencher Members of Parliaments can contribute in this House through our respective areas of specialised professional knowledge. I daresay that save for practising lawyers and to be fair, the hon Member Mr Louis Ng who would be speaking after me, not many would have heard of the Apostille Convention. In fact, many Members were asking about this in the Members' Room earlier today.

The vast majority of backbencher Members of Parliament on both sides of this House are not full-time Members of Parliament. Having a House of backbencher Members of Parliament, not of professional politicians but each of us holding different areas of knowledge and expertise ensures that we, as a House, do not have the same blind spots. Combined with a listening frontbench, we will be able to make better contributions to policy-making for Singapore and fellow Singaporeans. I support the Bill. [Applause.]

6.43 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, like Mr Murali, I am extremely excited about this Bill as well. Sir, if this Bill is passed, Singapore will join 118 countries as a party to the Apostille Convention.

This Bill gives effect to our obligations under the Convention. This will streamline our processes for recognising foreign public documents and make it easier for our public documents to be recognised in other contracting states. With the apostille process in place, individuals will not have to go to two sets of government authorities to legalise foreign public documents. This will significantly cut down on bureaucratic processes, which I think we can all agree, is a good thing.

I just have four points of clarification to make.

My first point is on the criteria for disproving certified documents. Section 11 of the Bill provides that the origin of a foreign public document certified with an Apostille will be presumed to be "sufficiently proven" unless "the contrary is proven". The origin of a foreign public document, as Minister mentioned, is defined in section 7 as comprising three elements: the authenticity of signature, the capacity of the person signing and the identity of the seal or stamp. Can Minister clarify whether problems with just one element of the origin, such as the authenticity of the signature, is enough to cause the origins of the document to be insufficiently proven?

My second point is on the scope of verification that will be done by the Singapore Academy of Law or SAL before issuing an apostille. Generally, SAL is only supposed to authenticate the origin of the public document and not whether the document is valid. However, defects in the document’s validity may mean the document does not qualify as a public document. Can Minister share whether SAL will verify that the document complies with content and format requirements to qualify as a public document?

My third point is on apostille fraud which is a problem within the international apostille system. One example of apostille fraud is using an apostille to legitimise a fake document. This may be done, for instance, to legitimise a fake academic certificate issued by a degree mill. There are existing offences for forging documents or providing false information to a public servant, which potentially may cover instances of apostille fraud. However, apostille fraud is arguably even more serious given that it undermines the integrity of Singapore's systems on the international stage. While the Apostilles Convention itself does not provide for any penalties, the Apostilles Handbook makes clear that sanctions may be provided for by domestic law. Can Minister share the rationale for deciding not to introduce specific offences for apostille fraud under the Bill?

Finally, can Minister share whether Singapore will be adopting both the e-Apostilles and e-Registers system. An e-Apostille is an apostille that is issued in electronic format with an electronic signature. An e-Register on the other hand is a register of apostilles that is kept in electronic form and which is accessible online by the recipient of the Apostille.

COVID-19 has restricted cross-border mobility but individuals still have to get their foreign public documents authenticated. The e-Apostille and e-Register system have provided a convenient way to get around this problem for many other countries, such as Brazil, Bulgaria, the Dominican Republic, Venezuela and the US. However, adoption of these systems could also mean there are more opportunities for bad faith actors to interfere. If we are adopting both or either systems, can Minister share what steps will be taken to protect the integrity of the e-Apostilles or e-Registers given that the documents may contain extremely sensitive information?

Notwithstanding these points, I stand in support of the Bill.

6.47 pm

Mr Dennis Tan Lip Fong (Hougang): Mr Deputy Speaker, Sir, thank you for allowing me to join this debate at short notice. Before I start, let me first declare my interest as a notary public. And as a notary public myself, I have long wondered why Singapore has hitherto not been a party to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.So, I certainly support this Bill.

I note the transfer of existing legalisation apostille responsibility from MFA to the Singapore Academy of Law or SAL, and that pursuant to this Bill, once passed, SAL will be the body issuing the relevant certificate.

I have some concerns whether this will lead to an increase of the fees which are currently being charged by MFA for apostille related legalisation of documents. I say this, bearing in mind that in October last year, SAL made it mandatory for all documents requiring notarisation to be accompanied by a notarial certificate which would in turn be required to be authenticated by SAL and there were new mandatory authentication charges chargeable for all documents to be notarised.

While the intention for authentication is good and understandable, the change in the requirements resulted in additions to the process and paperwork, and additional charges to businesses and individuals.

So, I would like to seek the Minister's assurance that with the passing of this Bill, SAL will not increase the fees which are currently being charged by MFA in respect of any apostille certification charges.

Mr Deputy Speaker: Minister Edwin Tong.

6.49 pm

Mr Edwin Tong Chun Fai: Thank you, Mr Deputy Speaker. And I am very pleased to be speaking on this suddenly very exciting Bill. I think it is exciting because it is the last speech of the day.

But I want to thank Mr Pillai. I think it is true what he has said that his contributions from the backbench with his experience over several years, have contributed to our thinking on this. We looked more closely at the Convention and eventually, having satisfied ourselves that it is a Convention that we can accede to and that we have the necessary infrastructure in place to play the role as envisaged in the Convention, we have decided to proceed with this. So, thank you very much, Mr Pillai, for your contributions.

Sir, let me go directly to the questions raised.

First, on this question of the e-Apostille and the e-Register. Both Mr Pillai and Mr Ng raised this.

Sir, of course, we welcome the use of technology to enhance the processes as long as they are safe and secure. And I am pleased to inform Mr Pillai and Mr Ng that SAL, which is the designated Competent Authority, is already working towards digitalising the entire apostillisation process. And this would include the issuance of electronic apostilles, and the operation of electronic registers of apostilles that can be accessed online by recipients so that they can verify the paper apostilles or e-Apostilles that they have received and this, I think is the "e-Register” that Mr Ng had in mind. Once this is ready, announcements will be made so that the process can then be explained and it will be known when this can be implemented.

Mr Pillai and Mr Tan raised the question of fees that will be charged once SAL takes over. For the apostille fees, SAL intends to charge $10 for each apostille certificate at the inception. So, whatever it starts off with, $10. And Members will note that this is the same fee as charged by MFA. So, to Mr Tan's query earlier, be aswe have sured.

The fee is being charged on the basis that SAL adopts the same manual, over-the-counter authentication services. I just want to note that private documents have to be notarised first before being authenticated by SAL. That is the process today anyway, and the apostille fee does not include the cost of such notarisation fees, if applicable.

Similar to other fees for services, SAL, like any other agencies, will regularly look at its fee structure and will conduct the review at some stage as to whether the fee structure is appropriate for the kind of services that it is designed to support.

Mr Ng asked whether if you have one element of the origin of a foreign public document not being satisfied, whether that would vitiate the entire document.

Clause 7 provides for three requirements and the three requirements go together to establish the veracity of that document that is being apostillised. So, if any one element is missing, then a document will not be able to be established. So, Mr Ng would note that, in particular, if the authenticity of the signature cannot be established, then that one fundamental aspect of the document's veracity is cast into doubt.

As to Mr Ng's about whether SAL will verify a document that complies with content and format requirements to qualify for a public document, for such Singapore public documents, SAL must be satisfied with the origin of the document before it issues the apostille. This is provided for in clause 17 of the Bill.

SAL will establish very clear procedures for every request for an apostille and is also building up a database of all the public specimen signatures of public officers who are authorised to sign public documents so that there can also be ease of verification. But that database is being built. I should just caution to add to Mr Ng's point that such an apostillisation, like legalisation, does not look at the underlying veracity of the contents. So, the truth or falsity of the contents of the document is not something that is certified by the apostillisation.

Mr Ng asked about offences for apostille fraud under the Bill.

It is a serious offence and I agree with Mr Ng, but there is an existing framework now in the Penal Code to deal with this. So, to Mr Ng's example of an academic certificate that is brought fraudulently or dishonestly, if one applies for an apostille on the basis of a false underlying document, then an offence under section 471 read with section 466 of the Penal Code, which is punishable with a term of imprisonment, that person can be charged under those offences. It is thus not necessary to create a separate set of offences to support only the apostillisation process.

Mr Ng would also note that one of the grounds on which the Competent Authority might refuse to issue an apostille is if there are, itself reasonable grounds, either on the face of it or upon review that the document has been falsified or is otherwise forged.

Sir, on Mr Murali Pillai's point on the Convention and acceding to the Convention, we have taken some time to study it, as I mentioned at the outset, to look at the details and also assess the merits. And we had extensive consultations with various domestic agencies and also stakeholders to ensure that we are ready with it and that upon accession to the Convention, we will be able to discharge the obligations. We have since done so and we are satisfied that we can adopt this regime.

The new regime will modernise and streamline the authentication process and, as I mentioned at the outset, facilitate the use of documents for cross-border purposes, saving time and expense for parties, both ways. Mr Deputy Speaker, with that, I beg to move.

Mr Deputy Speaker: There are no clarifications.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee; reported without amendment; read a Third time and passed.