New South Wales Verification of Identity legislation pack€¦ · New South Wales Verification of...

New South WalesVerification of Identity

legislation packA compilation of rules, requirements and other

resources for paper and electronic conveyancing in New South Wales.

ContentsClick on the links below to navigate through the documents.

VOI reasonable steps flowchart

VOI FAQs

NSW Conveyancing Rules V3

NSW Participation Rules V4

LPLC Troubleshooting VOI

ARNECC Guidance Notes

IDfy

Does the client have authority to instruct you?

For each conveyancing transaction you must take reasonable steps to verify that the client is a legal person and has the right to enter into the conveyancing transaction.

Does the client have capacity to give instructions?

Without capacity, a person is unable to enter into any contract, including a contract for the provision of legal services.

Have you taken reasonable steps to verify the

identity of the client?

You must take reasonable steps to verify client identity as per standards set out in the ARNECC Model Participation Rules.

Has your client declared the ID as true copies?

Get a client declaration confirming their identity.

Have you retained a copy of any documents which establish:

authority + identity?

Retain supporting documents as evidence.

Where you need to test capacity refer to guidelines issued by Law Society NSW.

The Verification of Identity Standard means the standard set out in Schedule 8 of the ARNECC

Participation Rules.

Conveyancing Rules for majority of states require a representative must take reasonable

steps to verify the identity of clients.

Are you conducting due diligence verifying your client?

Verification of identitylegislation updates State Land Registry requirements across Australia are changing to ensure that lawyers and

conveyancers conduct due diligence to identify their clients. InfoTrack is leading the charge to help practitioners comply with regulations and be

confident they’re taking reasonable steps to verify

the identity of their clients.

Verification of Identity FAQs

What is a Subscriber?

A legal entity registered to use an ELNO to complete conveyancing transactions electronically, as or on behalf of, a Transacting Party.

Do I have to use an Identity Agent to have my client’s identity verified?

No, the requirement is to take reasonable steps to verify the identity of your client or mortgagor. How this is done is up to you, as long as the steps taken are reasonable in the circumstances. You can undertake the verification of identity yourself or it can be done by an agent (including an Identity Agent).

Who can undertake a VOI?

Anyone can use the Verification of Identity Standard. This is a business decision for you to make as it is your obligation to take reasonable steps to verify identity. How you undertake VOI is up to you, however for it to be deemed reasonable steps the VOI Standard must be properly carried out by one of the following categories of people: Subscriber; Mortgagee; or Identity Agent.

Must the Verification of Identity Standard be used to verify the identity of clients and mortgagors?

It is not a requirement to use the Verification of Identity Standard to verify the identity of clients and mortgagors. The requirement is for you to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is for a you to decide, you can take your own reasonable steps or use the Verification of Identity Standard.

Do you need to get the VOI for both vendors and purchasers?

Yes, the requirement is for the you to take reasonable steps to verify the identity of your client and this applies to both vendor(s) and purchaser(s) – whichever party is your client.

What happens in the event of the contract being signed at the Real estate agent office and the contract is then returned to our office?You are still required to verify the identity of the signer.

Do VOI requirements apply to existing clients?

Yes. You need not re-verify your client if you have taken reasonable steps to verify their identity within the previous two years and ensured that you are dealing with the same person whose identity you have already verified. After two years, it is up to you to assess what is reasonable in the circumstances.

What should I do if I suspect the identity documents provided are not genuine or do not represent a reasonable likeness to the person being identified?

When doubt arises, or should reasonably have arisen in relation to a transaction and/or a client’s or mortgagor’s identity, you should seek further evidence or make further enquiries. If after having done so you are still not satisfied, then you should decline to act further in the transaction.

What are the requirements for retention of evidence supporting verification of identity?

Evidence must be retained by the conveyancer, lawyer or mortgagee for seven years from the date of lodgement. If a non-represented party is a party to a conveyancing transaction, that party will also be required to retain supporting evidence for seven years from the date of lodgement of the instrument they signed. If the Verification of Identity Standard was used, this evidence must demonstrate that the procedure for the standard was followed. If alternative reasonable steps were used to verify identity the evidence must show what these steps were.

What do I do for clients overseas?

Where a client is overseas, you need to decide what steps to take to verify the person’s identity having regard to the available services and options under the circumstances. One available option is to utilise the services of an Australian Embassy, High Commission or Consulate coupled with any necessary further steps in order for the Subscriber or mortgagee to be reasonably confident in the person’s identity. If your client has an Apple device registered with the Australian App Store you have the option to use IDfy for remote verification.

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1

Conveyancing Rules

Section 12E Real Property Act 1900

Version 3

Effective: 22 July 2017

Conveyancing Rules –July 2017

2

Title: Conveyancing Rules V3, Section 12E Real Property Act 1900

Office of the Registrar General

Level 7, 2 -24 Rawson Place

Sydney NSW 2000

[email protected]

http://www.registrargeneral.nsw.gov.au/econveyancing

Copyright

© Crown in right of New South Wales through the Office of the Registrar General 2017.

This copyright work is licensed under a Creative Commons Australia Attribution 4.0 license,

http://creativecommons.org/licenses/by-nd/4.0/

Any enquiries relating to this publication may be addressed to the Office of the Registrar General at [email protected]

mailto:[email protected]

http://creativecommons.org/licenses/by-nd/4.0/


4

Contents

1. Preliminary..................................................................................... 5

2. Commencement and Revocation .................................................. 5

3. Definitions and Interpretation ........................................................ 5

4. Verification of Identity and Authority ........................................... 10

5. Supporting Evidence ................................................................... 14

6. Certifications ................................................................................ 15

7. Lodging Parties ........................................................................... 17

8. Electronic Lodgment.................................................................... 18

9. Electronic Certificates of Title ...................................................... 21

10. National Mortgage Form ............................................................. 22

11. Client Authorisation..................................................................... 24


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Conveyancing Rules

1. Preliminary

These Conveyancing Rules are made by the Registrar General pursuant to Section 12E of the

Real Property Act 1900 and may be referred to as the Conveyancing Rules.

2. Commencement and Revocation

2.1.1 These Conveyancing Rules come into force on 22 July 2017 and replace Version 2.1

which operates until replaced by Version 3 on 22 July 2017. Individual Rules take

effect from the dates specified in the Rule.

2.1.2 Version 2.1 of the Conveyancing Rules is revoked and replaced by Version 3 on 22

July 2017.

3. Definitions and Interpretation

3.1 Definitions

3.1.1 In these Conveyancing Rules capitalised terms have the meanings set out below:

ADI means authorised deposit-taking institution as defined in the Banking Act 1959

(Cth).

Australian Credit Licence has the meaning given to it in the National Consumer

Credit Protection Act 2009 (Cth).

Australian Legal Practitioner has the meaning given to it in the Legal Profession

Uniform Law (NSW).

Business Day has the meaning given to it in the ECNL.

Certification Rules means the rules set out in Schedule 3 to the Participation Rules.

Client means a person who has or persons who have appointed an Australian Legal

Practitioner, a Law Practice or a Licensed Conveyancer as their Representative.

Client Agent means a person authorised to act as the Client’s agent but does not

include a person acting solely as the Client’s Representative.

Client Authorisation has the meaning given to it in section 107 of the RPA.

Conveyancing Transaction has the meaning given to it in the ECNL.

Document has the meaning given to it in the ECNL.


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Duty Authority means the Chief Commissioner of State Revenue of NSW.

ECNL means the Electronic Conveyancing National Law (NSW).

eCT means a Folio of the Register that contains a note stating that no paper

certificate of title has issued and recording who has control of the right to deal in the

land.

Electronically Tradeable means with respect to a Folio of the Register that the folio

is not excluded from electronic transactions by rules of the Registrar General.

NOTE: “electronically tradeable” – for details of titles that are suitable for eLodgment see:

http://rgdirections.lpi.nsw.gov.au/e-dealings/elodgment_requirements. This list changes

frequently as LPI works to allow more titles to be electronically tradeable.

Priority Notices may be lodged electronically over all titles, including those that may not

be electronically tradeable for the purposes of other dealings.

ELN or Electronic Lodgment Network has the meaning given to it in the ECNL.

Folio of the Register has the meaning given to it in the RPA.

Identifier Declaration means the declaration set out in Verification of Identity

Standard paragraph 4.

Identity Agent means a person who is an agent of a Representative and who:

(a) a Representative reasonably believes is reputable, competent and insured in

compliance with Insurance Rule 2; and

(b) is authorised by a Representative to conduct verification of identity on behalf of

the Representative or mortgagee in accordance with the Verification of Identity

Standard.

Identity Agent Certification means the certification set out in Schedule 9 of the


Identity Declarant means a person providing an Identifier Declaration.

Identity Verifier means the person conducting a verification of identity in accordance

with the Verification of Identity Standard.

Insurance Rules means the Rules set out in Schedule 6 of the Participation Rules.

Law Practice has the meaning given to it in the Legal Profession Uniform Law

(NSW).

Licensed Conveyancer means a person licensed or registered under the

Conveyancers Licencing Act 2003.

NCCP Act means the National Consumer Credit Protection Act 2009 (Cth).

National Credit Code has the meaning given to it in the NCCP Act.

http://rgdirections.lpi.nsw.gov.au/e-dealings/elodgment_requirements


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Participation Agreement has the meaning given to it in the ECNL.

Participation Rules means the participation rules determined under the Electronic

Conveyancing National Law (NSW).

Party means each person who is a party to an instrument, but does not include a

Representative or an agent.

Person Being Identified means any of the persons required to be identified under

Rule 4.1.2.

Primary non-photographic identification document means any of the following:

(a) a birth certificate or birth extract issued by a State or Territory,

(b) a citizenship certificate issued by the Commonwealth,

(c) a citizenship certificate issued by a foreign government and, if the certificate is

in a language other than English, a document purporting to contain an English

translation of the certificate,

(d) a birth certificate issued by a foreign government, the United Nations or an

agency of the United Nations and, if the certificate is in a language other than

English, a document purporting to contain an English translation of the

certificate,

(e) a pension card issued by Centrelink that entitles the person in whose name the

card is issued to financial benefits.

Primary photographic identification document means any of the following:

(a) a licence or permit issued under a law of a State or Territory or equivalent

authority of a foreign country for the purpose of driving a vehicle that contains a

photograph of the person in whose name the licence or permit is issued,

(b) a passport issued by the Commonwealth,

(c) a passport or a similar document issued for the purpose of international travel

that:

(i) contains a photograph and the signature of the person in whose name the document is issued, and

(ii) is issued by a foreign government, the United Nations or an agency of the United Nations, and

(iii) if it is in a language other than English, is accompanied by a document purporting to contain an English translation of the document,

(d) a Photo Card issued under the Photo Card Act 2005,

(e) a card issued under a law of the Commonwealth or another State or Territory

for the purpose of proving the person’s age which contains a photograph of the

person in whose name the card is issued,

(f) a national identity card issued for the purpose of identification that:

(i) contains a photograph and the signature of the person in whose name the document is issued, and

http://www.legislation.nsw.gov.au/#/view/act/2005/20


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(ii) is issued by a foreign government, the United Nations or an agency of the United Nations, and

(iii) if it is in a language other than English, is accompanied by a document purporting to contain an English translation of the document.

RPA means the Real Property Act 1900.

Representative means an Australian Legal Practitioner, a Law Practice or a

Licensed Conveyancer who acts on behalf of a Client.

Secondary identification document means any of the following:

(a) a notice that was issued to an individual by the Commonwealth, a State or

Territory within the preceding 12 months that:

(i) contains the name of the individual and his or her address, and

(ii) records the provision of financial benefits to the individual under a law of the Commonwealth, State or Territory (as the case may be),

(b) a notice that was issued to an individual by the Australian Tax Office within the

preceding 12 months that:

(i) contains the name of the individual and his or her address, and

(ii) records a debt payable to or by the individual by or to the Commonwealth under a Commonwealth law relating to taxation,

(c) a notice that was issued to an individual by a local government body or utilities

provider within the preceding 3 months that contains the name of the individual

and his or her address.

Verification of Identity Standard means the standard set out in Schedule 8 of the



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3.2 Interpretation

In these Conveyancing Rules, unless a contrary intention is evident:

3.2.1 A reference to these Conveyancing Rules is a reference to these Conveyancing

Rules as amended, varied or substituted from time to time.

3.2.2 A reference to any legislation or to any provision of any legislation includes:

(a) all legislation, regulations, proclamations, ordinances, by-laws and instruments issued under that legislation or provision; and

(b) any modification, consolidation, amendment, re-enactment or substitution of that legislation or provision.

3.2.3 A word importing:

(a) the singular includes the plural; and

(b) the plural includes the singular; and

(c) a gender includes every other gender.

3.2.4 A reference to a party includes that party’s administrators, successors and permitted

assigns.

3.2.5 If any act pursuant to these Conveyancing Rules would otherwise be required to be

done on a day which is not a Business Day then that act may be done on the next

Business Day, and when an action is required by a party within a specified period of

Business Days, the period will be deemed to commence on the Business Day

immediately following the day on which the obligation is incurred.

3.2.6 Where a word or phrase is given a defined meaning, any other part of speech or

grammatical form in respect of that word or phrase has a corresponding meaning.

3.2.7 A reference to two or more persons is a reference to those persons jointly and

severally.

3.2.8 A reference to a Rule or schedule is a reference to a Rule of, or a schedule to, these

Conveyancing Rules.

3.2.9 A reference to a Rule includes a reference to all of its sub-requirements.

3.2.10 Where general words are associated with specific words which define a class, the

general words are not limited by reference to that class.

3.2.11 Notes included in these Conveyancing Rules do not form part of the Rules.

3.2.12 The word ‘or’ is not exclusive.


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4. Verification of Identity and Authority

Real Property Act 1900 Section 12E(1)

(1) Making of conveyancing rules

The Registrar-General may from time to time determine, in writing, rules for or with respect to

the preparation and lodgment otherwise than electronically of paper documents to give effect

to conveyancing transactions (the conveyancing rules), including rules for or with respect to

the following:

(a) the verification of identity and authority, including:

(i) the standards to which identity and authority are to be verified, and

(ii) the classes of persons in respect of whom identity and authority are to be verified,

and

(iii) the classes of paper documents in relation to which verification of identity and

authority requirements apply, and

(iv) the classes of persons who can undertake verification of identity and authority, and

(v) any supporting evidence and retention requirements.

4.1 Verification of Identity

4.1.1 This Rule takes effect on 26 November 2016. Nothing in this Rule shall be taken to

detract from any professional responsibility or due diligence requirement applying to

Representatives with respect to Clients or others.

4.1.2 A Representative must take reasonable steps to verify the identity of each Client or

each of their Client Agents.

4.1.3 A Representative or mortgagee must take reasonable steps to verify the identity and

authority of any Client or Client Agent to whom certificates of title are provided. This

Rule does not apply to a Representative or mortgagee providing a certificate of title to

another Representative or mortgagee for the purposes of settlement of a

conveyancing transaction (including a refinance transaction).

4.1.4 For the purposes of complying with Conveyancing Rules 4.1.2 and 4.1.3, a

Representative or a mortgagee can either:

(a) apply the Verification of Identity Standard; or

(b) verify the identity of a person in some other way that constitutes the taking of reasonable steps.

The Verification of Identity Standard can be applied by a Representative or a

mortgagee, its Identity Agent, or by them in combination. Subject to Conveyancing

Rule 4.1.5, compliance with the Verification of Identity Standard is deemed to

constitute taking reasonable steps for the purposes of Conveyancing Rules 4.1.2 and

4.1.3.


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4.1.5 A Representative or mortgagee must undertake further steps to verify the identity of a

Person Being Identified and/or any Identity Declarant where:

(a) the Representative knows or ought reasonably to know that:

(i) any identity Document produced by the Person Being Identified and/or

any Identity Declarant is not genuine; or

(ii) any photograph on an identity Document produced by the Person Being

Identified and/or any Identity Declarant is not a reasonable likeness of the

Person Being Identified or the Identity Declarant; or

(iii) the Person Being Identified and/or any Identity Declarant does not appear

to be the person to whom the identity Document(s) relate; or

(b) it would otherwise be reasonable to do so.

4.1.6 A Representative or mortgagee need not re-verify the identity of the Person Being

Identified if:

(a) the Representative complied with Conveyancing Rule 4.1.2 or 4.1.3, or with the corresponding Participation Rule 6.5.1, within the previous 2 years; and

(b) the Representative takes reasonable steps to ensure that it is dealing with the Person Being Identified.

4.2 Use of Verification of Identity Standard

4.2.1 If the Verification of Identity Standard is used:

(a) a Representative may use an Identity Agent; and

(b) where an Identity Agent is used, the Representative must direct the Identity Agent to use the Verification of Identity Standard; and

(c) the Identity Verifier must be the:

(i) Representative and/or the Representative’s Identity Agent; or

(ii) where a Representative represents a mortgagee, that mortgagee and/or

that mortgagee’s Identity Agent; and

(d) the Representative must receive from any Identity Agent:

(i) copies of the Documents produced to verify the identity of the Person

Being Identified and/or any Identity Declarant signed, dated and endorsed

as a true copy of the original by the Identity Agent; and

(ii) an Identity Agent Certification.

NOTE: This Rule is unchanged from Version 1.

For advice and assistance on verifying the identity of a transacting party in a conveyancing

transaction, including advice on using an Australian Embassy/High Commission/Consulate to


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verify the identity of an Australian or foreign national overseas, in accordance with this Rule see

ARNECC MPR Guidance Note 2 - Verification of Identity at:

https://www.arnecc.gov.au/__data/assets/pdf_file/0011/698798/MPR_Guidance_Note_2_-

_Verification_of_Identity_Updated.pdf

4.3 Authority (Right to Deal)

4.3.1 This Rule takes effect on 26 November 2016. Nothing in this Rule shall be taken to

detract from any professional responsibility or due diligence requirement applying to

Representatives with respect to Clients or others.

4.3.2 For each Conveyancing Transaction a Representative must take reasonable steps to

verify that its Client is a legal person and has the right to enter into the Conveyancing

Transaction.

4.3.3 A mortgagee, or a Representative of a mortgagee, must, for each mortgage, variation

of mortgage or transfer of mortgage, take reasonable steps to verify that the

mortgagor is a legal person and has the right to enter into the mortgage.


For advice and assistance on determining the right of a transacting party to enter into a

conveyancing transaction in accordance with this Rule see ARNECC MPR Guidance Note 4 -

Right to Deal at:

http://www.arnecc.gov.au/__data/assets/pdf_file/0004/698791/MPR_Guidance_Note_4_-

_Right_to_Deal.pdf

4.4 Reasonable steps for confirming identity of mortgagor

4.4.1 This Rule applies only in respect of a mortgage executed on or after 19 May 2017.

4.4.2 For the purposes of section 56C(1) and (2) of the RPA, a mortgagee is to be considered

as having taken reasonable steps to ensure that the person who executed a mortgage,

or on whose behalf the mortgage was executed, as mortgagor is the same person who

is, or is to become, the registered proprietor of the land that is security for the payment

of the debt to which the mortgage relates if the mortgagee or the mortgagee’s agent

has taken the steps set out in the Verification of Identity Standard.

4.4.3 In applying the Verification of Identity Standard for the purposes of this Rule:

(a) a reference to a subscriber is to be read as a reference to a mortgagee,

https://www.arnecc.gov.au/__data/assets/pdf_file/0011/698798/MPR_Guidance_Note_2_-_Verification_of_Identity_Updated.pdf

https://www.arnecc.gov.au/__data/assets/pdf_file/0011/698798/MPR_Guidance_Note_2_-_Verification_of_Identity_Updated.pdf

http://www.arnecc.gov.au/__data/assets/pdf_file/0004/698791/MPR_Guidance_Note_4_-_Right_to_Deal.pdf

http://www.arnecc.gov.au/__data/assets/pdf_file/0004/698791/MPR_Guidance_Note_4_-_Right_to_Deal.pdf


13

(b) a reference to a subscriber agent is to be read as a reference to the mortgagee’s agent (if any),

(c) a reference to the person being identified is to be read as a reference to the person who executed a mortgage, or on whose behalf the mortgage was executed, as mortgagor,

(d) references to client authorisations are to be disregarded.

NOTE: This Rule is unchanged from Version 2.1.

This Rule replicates and continues unchanged the requirements for a mortgagee to be deemed to

have taken reasonable steps to identify the mortgagor that prior to 19 May 2017 were set out in

Regulation 16 of the Real Property Regulation 2014 (NSW).


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5. Supporting Evidence

Real Property Act 1900 Section 12E (1)

12E Making of conveyancing rules

(1) The Registrar-General may from time to time determine, in writing, rules for or with respect to



the following: …

(d) the retention of documents supporting or authenticating paper documents generally,

including periods of retention.

5.1 This Rule takes effect on 26 November 2016.

5.2 A Representative or where there is no Representative, a Party must retain the

evidence supporting the dealing for at least seven years from the date of lodgment of

the dealing that is registered or recorded including any evidence supporting

verification of a Party’s identity.


For advice and assistance on retaining evidence to support conveyancing transactions in

accordance with this Rule see ARNECC Guidance Note 5 - Retention of Evidence at:

https://www.arnecc.gov.au/__data/assets/pdf_file/0005/698792/MPR_Guidance_Note_5_-

_Retention_of_Evidence.pdf

https://www.arnecc.gov.au/__data/assets/pdf_file/0005/698792/MPR_Guidance_Note_5_-_Retention_of_Evidence.pdf

https://www.arnecc.gov.au/__data/assets/pdf_file/0005/698792/MPR_Guidance_Note_5_-_Retention_of_Evidence.pdf


15

6. Certifications

Real Property Act 1900 Sections 12E (1) (c) and 117 (1) (b)



the preparation and lodgment otherwise than electronically of paper documents to give effect to

conveyancing transactions (the conveyancing rules), including rules for or with respect to the

following:

(c) matters to be certified, or relating to the certification of matters, for the purposes of paper

documents, including:

(i) the form of certifications, and

(ii) the classes of persons who may certify those matters, and

(iii) any supporting evidence and retention requirements.

117 Certificate of correctness

(1) The Registrar-General may reject, or may refuse to accept or to take any action in relation to,

any primary application, dealing, caveat or priority notice unless it is certified: …

(b) if it is lodged in paper form - in accordance with the conveyancing rules.

6.1 Certifications on Paper dealings

6.1.1 This Rule takes effect on 26 November 2016.

6.1.2 The Registrar General may reject, or may refuse to accept or to take any action in

relation to, any primary application, dealing or caveat lodged in paper form unless it

bears the following certificates:

(a) a certificate (signed by or on behalf of each person by whom the application,

dealing or caveat has been executed) to the effect that the application,

dealing or caveat is correct for the purposes of the RPA, and

(b) a certificate (signed by each witness to the execution of the application,

dealing or caveat) to the effect that:

(i) the witness is an eligible witness, and

(ii) the application, dealing or caveat was executed by the person to whose

execution of the application, dealing or caveat the witness is attesting in

the presence of the witness.

6.1.3 In this section, eligible witness, in relation to the execution of an application, dealing or

caveat, means a person who:

(a) is at least 18 years of age, and

(b) is not a party to the application, dealing or caveat, and

(c) has known the person to whose execution of the application, dealing or

caveat the witness is attesting for more than 12 months or has taken

reasonable steps to ensure the identity of that person.


16

6.1.4 Without limiting the generality of sub-rule 6.1.3 (c), a witness is to be considered as

having taken reasonable steps to ensure the identity of the person whose execution

of the application, dealing or caveat the witness is attesting if the person has taken

the steps set out in this Rule. The witness must sight:

(a) an original of a primary photographic identification document in respect of the

other person, or

(b) an original of a primary non-photographic identification document in respect

of the other person and an original of a Secondary identification document in

respect of the other person.

6.1.5 A document referred to in 6.1.4 does not include a document that has expired (other

than in the case of an Australian passport that has been expired for less than 2

years).


1. This Rule replicates and continues unchanged the certification requirements that prior to 1

May 2016 were set out in section 117 of the RPA and Clause 22 of the Real Property

Regulation 2014 (NSW).

2. Definitions for Primary photographic identification document, Primary non-photographic

identification document and Secondary identification document have now been included in

these Conveyancing Rules unchanged from the definitions in the Real Property Regulation

2014 (NSW).


17

7. Lodging Parties






following: …

(f) the obligations of persons lodging paper documents (including warranties and

representations).

7.1 This Rule takes effect on 1 March 2017.

7.2 A discharging mortgagee or its Representative must lodge a discharge of mortgage

signed on or after 1 March 2017 except where the discharge of mortgage is to be

lodged with any other dealing affecting the same folio(s) of the Register.


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8. Electronic Lodgment






following: …

(e) the classes of conveyancing transactions that must be lodged using an Electronic

Lodgment Network instead of by means of paper documents.

8.1 Priority Notices

8.1.1 This Rule takes effect on 26 November 2016.

8.1.2 A Priority Notice, Extension of Priority Notice and Withdrawal of a Priority Notice must

be lodged using an ELN.

NOTE: By Proclamation published on 26 February 2016, Part 7B of the RPA providing for

Priority Notices commenced on 1 October 2016.

8.2 Lodgment of Standalone Discharges of Mortgage and National

Credit Code Mortgages by ADIs until 31 July 2017

8.2.1 This Rule has effect until 31 July 2017.

8.2.2 Where the mortgagee is an ADI:

(a) a discharge of mortgage signed on or after 1 March 2017 must be lodged

using an ELN, except where the discharge of mortgage is to be lodged with

any other dealing affecting the same folio(s) of the Register; and

(b) a mortgage to which the National Credit Code applies signed on or after 1

March 2017 must be lodged using an ELN, except where the mortgage is to

be lodged with any other dealing affecting the same folio(s) of the Register.

8.2.3 Rule 8.2.2 does not apply if the Folio of the Register for the land affected by the

discharge of mortgage or mortgage is not Electronically Tradeable or if an ELN is not

available and has not been available for one clear Business Day.

8.2.4 Rule 8.2.2(b) only applies if the interest being mortgaged is comprised in a separate

Electronically Tradeable Folio of the Register.


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8.2.5 Rule 8.2.2(b) does not apply to mortgages that have terms and conditions over 4000

characters that are not included in a memorandum filed under section 80A of the RPA.

NOTE: Rules 8.2.4 and 8.2.5 are new and are intended to clarify the exceptions where a

mortgage need not be lodged electronically.

Rule 8.2 will cease to have effect from 1 August 2017 at which time Rule 8.4 will commence.

8.3 Discharges of Mortgage where an eCT is issued

8.3.1 This Rule takes effect on 1 March 2017.

8.3.2 Where there is an eCT issued for a Folio of the Register, any discharge of mortgage

(by a first mortgagee) must be lodged using an ELN, except where the discharge of

mortgage is to be lodged with any other dealing affecting the same folio(s) of the

Register.

8.3.3 Notwithstanding Rule 8.3.2, the Registrar General may, at the Registrar General’s

discretion, accept and register a discharge of mortgage signed prior to the issue of the

eCT if it is accompanied by the paper CT that was current prior to the issue of the

eCT.

8.3.4 Rule 8.3.2 does not apply if the Folio of the Register for the land affected by the

discharge of mortgage is not Electronically Tradeable, or if an ELN is not available and

has not been available for one clear Business Day.


1. This Rule requires discharges of mortgage affecting eCTs to be lodged electronically.

2. The exception allows the Registrar General to accept a discharge of mortgage that was

signed prior to the issue of the eCT and is subsequently lodged with the former paper

certificate of title. This will only apply where a discharge of mortgage has been held by a

registered proprietor and not lodged for registration, and the title has subsequently been

converted to an eCT showing the mortgagee on title as holding Control of the Right to Deal.

8.4 Lodgment of Standalone Discharges of Mortgage, Mortgages

and Refinance Transactions by ADIs from 1 August 2017

8.4.1 This Rule takes effect on 1 August 2017.

8.4.2 Where the relevant instrument is signed on or after 1 August 2017,


20

(a) a discharge of mortgage to an ADI,

(b) a mortgage to an ADI, or

(c) any combination of mortgage and discharge of mortgage where each of the

mortgagees in a refinance transaction are ADIs,

must be lodged using an ELN, except where the mortgage(s) and/or discharge(s) of

mortgage is to be lodged with any other dealing affecting the same folio(s) of the

Register.

8.4.3 Rule 8.4.2 does not apply if the Folio of the Register for the land affected by the mortgage(s) and/or discharge(s) of mortgage is not Electronically Tradeable, or if an ELN is not available and has not been available for one clear Business Day.

8.4.4 Rules 8.4.2(b) and (c) only apply if the interest being mortgaged is comprised in a separate Electronically Tradeable Folio of the Register.

8.4.5 Rule 8.4.2(b) and (c) do not apply to mortgages that have terms and conditions over 4000 characters that are not included in a memorandum filed under section 80A of the RPA.

NOTE: Rule 8.4.1 has been amended to clarify that Rule 8.4 will replace Rule 8.2 from 1 August

2017.

Rules 8.4.4 and 8.4.5 are new and are intended to clarify the exceptions where a mortgage need

not be lodged electronically.


21

9. Electronic Certificates of Title

Real Property Act 1900 Section 33AA (1)

33AA Non-issue of certificate of title

(1) The Registrar-General may, from time to time, determine circumstances when, or classes of

persons to whom, certificates of title will not be issued without a request under section 33 (5).

9.1.1 Rule 9.1.2 takes effect on 1 March 2017.

9.1.2 Where the mortgagee is an ADI and a first mortgage signed on or after 1 March 2017

is lodged electronically, no paper certificate of title will be issued. Instead a notation will

be made on the relevant Folio of the Register pursuant to section 33AA(2) of the RPA.

9.1.3 Rule 9.1.4 takes effect on 1 August 2017.

9.1.4 Where the mortgagee is an ADI and a Document is lodged in paper on or after 1 August

2017, no paper certificate of title will be issued. Instead a notation will be made on the

relevant Folio of the Register pursuant to section 33AA(2) of the RPA.

9.1.5 Rule 9.1.4 does not apply if the Folio of the Register is not Electronically Tradeable.

NOTE:

1. Rule 9.1.5 is new and intended to clarify that an eCT will not be issued upon lodgment of a

paper Document for a Folio of the Register that is not Electronically Tradeable.

2. Electronic Certificate of Title (eCT) means that the mortgagee bank does not hold a paper

certificate of title for the current edition of a folio. Instead the mortgagee is recorded as having

Control of the Right to Deal (CoRD) on the Register. For further information on eCT see:

http://www.lpi.nsw.gov.au/plan_and_title_registration/national_e-

conveyancing_nsw/electronic_certificate_of_title_ect

3. For information on what parties to a conveyancing transaction should do to prepare for a

paper settlement when there is an eCT instead of a paper CT see fact sheet: Attending a

paper settlement when the Certificate of Title is in electronic format (PDF 160.6 KB).

http://www.lpi.nsw.gov.au/plan_and_title_registration/national_e-conveyancing_nsw/electronic_certificate_of_title_ect

http://www.lpi.nsw.gov.au/plan_and_title_registration/national_e-conveyancing_nsw/electronic_certificate_of_title_ect

http://www.lpi.nsw.gov.au/__data/assets/pdf_file/0018/201069/Paper_Settlement_CT.pdf

http://www.lpi.nsw.gov.au/__data/assets/pdf_file/0018/201069/Paper_Settlement_CT.pdf


22

10. National Mortgage Form

10.1.1 This Rule operates notwithstanding Rule 6.

10.1.2 The Registrar General can accept and register a National Mortgage Form lodged in

paper, signed by the mortgagee, if the mortgagee provides certifications 3, 4 and 5 of

the Certification Rules.


paper, signed by the mortgagee’s Representative, if the mortgagee’s Representative

provides certifications 1, 2, 3, 4 and 5 of the Certification Rules.


paper, signed by the mortgagor and the mortgagee, if the mortgagee provides

certifications 3, 4 and 5(a) of the Certification Rules.


paper, signed by the mortgagor and the mortgagee’s Representative, if the

mortgagee’s Representative provides certifications 1, 2, 3, 4 and 5(a) of the

Certification Rules.

10.1.6 Before signing a paper National Mortgage Form on behalf of a mortgagee, the

Representative must enter into a Client Authorisation with the mortgagee.

10.1.7 The certifications that a mortgagee is required to give by these Rules are given on behalf

of the mortgagee only and not on behalf of the mortgagor.

10.1.8 The certifications that a mortgagee’s Representative is required to give by these Rules

are given on behalf of the mortgagee’s Representative only and not on behalf of the

mortgagor.

10.1.9 In applying the Certification Rules for the purposes of this Rule, reference to the Certifier

is to be read as a reference to the mortgagee or the mortgagee’s Representative,

whichever is applicable.

10.1.10 Where a mortgage signed on or after 1 January 2018 is lodged, it must be lodged using

the National Mortgage Form.

. NOTE: Rule 10 has been amended.

Rules 10.1.2, 10.1.3, 10.1.4 and 10.1.5 been amended to clarify that the Registrar General can

accept and register a National Mortgage Form lodged in paper whether:

1. signed by the mortgagee only; or

2. signed by the mortgagee’s Representative only; or

3. signed by the mortgagor and the mortgagee; or


23

4. signed by the mortgagor and the mortgagee’s Representative only,

provided that the mortgagee or the mortgagee’s Representative provides certain certifications.

Former Rule 10.1.4 has been expanded and renumbered to 10.1.9

Former Rule 10.1.5 have been renumbered 10.1.10


24

11. Client Authorisation

Real Property Act 1900 Sections 12E and 107 (1)





the following: …

(b) client authorisations, including:

(i) the form of a client authorisation, and

(ii) the classes of documents to which a client authorisation applies, and

(iii) any supporting evidence and retention requirements

107 Client authorisations

(3) A properly completed client authorisation:

(a) has effect according to its terms, and

(b) is not a power of attorney for the purposes of any other law relating to powers of

attorney.

11.1.1 A Client Authorisation is required to be in a form that is in substantial compliance with

the form set out in Schedule 4 to the Participation Rules.

11.1.2 A Client Authorisation may only be used for the National Mortgage Form in accordance

with Rule 10.

NOTE: Rule 11 is new.

Electronic Conveyancing National Law (NSW) Section 23

NSW Participation Rules for

Electronic Conveyancing

VERSION 4 Effective: 27 May 2017

i-'t-k- Land & Property NSW GOVERNMENT Information

Electronic Conveyancing National Law

(NSW)

Section 23

These are the Participation Rules (Version 4) for Electronic Conveyancing in

NSW determined pursuant to section 23 of the Electronic Conveyancing

National Law (NSW) to be effective on and from 27 May 2017.

In determining these Participation Ru l e s , I have adopted the Model

Participation Rules Version 4 developed and approved by the Australian

Registrars' National Electronic Conveyancing Council (ARNECC).

Jeremy Cox

Registrar General

27 April 2017

2 NSW Participation Rules – Version 4

CONTENTS

1 PRELIMINARY ..................................................................................................................4

2 DEFINITIONS AND INTERPRETATION ...........................................................................4

2.1 Definitions ............................................................................................................................. .............. 4

2.2 Interpretation ............................................................................................................................. ........ 11

3 COMPLIANCE WITH PARTICIPATION RULES .............................................................13

4 ELIGIBILITY CRITERIA ..................................................................................................13

4.1 ABN ................................................................................................................................................... 13

4.2 Status ................................................................................................................................................ 13

4.3 Character .......................................................................................................................................... 13

4.4 Insurance .......................................................................................................................................... 15

5 THE ROLE OF SUBSCRIBERS ......................................................................................15

5.1 Subscriber’s roles............................................................................................................................. . 15

5.2 Subscriber as principal ...................................................................................................................... 15

5.3 Subscriber who acts as Representative............................................................................................ 15

5.4 Responsible Subscribers .................................................................................................................. 15

5.5 Subscriber as trustee and partnerships ............................................................................................ 16

6 GENERAL OBLIGATIONS .............................................................................................16

6.1 Ensure User compliance ................................................................................................................... 16

6.2 Keep Subscriber System Details complete and up-to-date .............................................................. 16

6.3 Client Authorisation ........................................................................................................................... 16

6.4 Right to Deal ............................................................................................................................. ........ 17

6.5 Verification of identity ........................................................................................................................ 17

6.6 Supporting evidence ......................................................................................................................... 19

6.7 Compliance with laws and Participation Rules ................................................................................. 19

6.8 Compliance with directions ............................................................................................................... 20

6.9 Assistance ............................................................................................................................. ............ 20

6.10 Protection of information ................................................................................................................... 20

6.11 Information ........................................................................................................................................ 20

6.12 No assignment .................................................................................................................................. 20

6.13 Mortgages ......................................................................................................................................... 20

6.14 (Deleted) ........................................................................................................................................... 21

7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY .......................... 21

7.1 Protection measures ......................................................................................................................... 21

7.2 Users ................................................................................................................................................. 21

7.3 User access............................................................................................................................. .......... 21

7.4 Signers ............................................................................................................................. ................. 22

7.5 Digital Certificates ............................................................................................................................. 22

7.6 (Deleted) ........................................................................................................................................... 23


7.7 Notification of Jeopardised Conveyancing Transactions .................................................................. 23

7.8 Revoking authority ............................................................................................................................ 23

7.9 Compromised Security Items ............................................................................................................ 24

7.10 Certifications ............................................................................................................................. ........ 24

8 AMENDMENT OF PARTICIPATION RULES ..................................................................24

9 RESTRICTION, SUSPENSION AND TERMINATION .....................................................24

9.1 Comply with directions relating to restriction of access or use ......................................................... 24

9.2 Suspension at direction of Registrar ................................................................................................. 25

9.3 Termination at direction of Registrar ................................................................................................. 25

9.4 Rights and obligations on suspension, termination or resignation.................................................... 25

9.5 Further steps by Subscriber .............................................................................................................. 25

10 COMPLIANCE ................................................................................................................26

11 PROHIBITIONS...............................................................................................................26

12 ADDITIONAL PARTICIPATION RULES .........................................................................26

SCHEDULE 1 – ADDITIONAL PARTICIPATION RULES ............................................................27

SCHEDULE 2 – AMENDMENT TO PARTICIPATION RULES PROCEDURE ..............................28

SCHEDULE 3 – CERTIFICATION RULES ...................................................................................29

SCHEDULE 4 - CLIENT AUTHORISATION FORM ...................................................................30

SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE...................................................35

SCHEDULE 6 – INSURANCE RULES..........................................................................................37

SCHEDULE 7 – SUSPENSION EVENTS, TERMINATION EVENTS AND SUSPENSION AND

TERMINATION PROCEDURE ........................................................................................41

SCHEDULE 8 – VERIFICATION OF IDENTITY STANDARD .......................................................44

SCHEDULE 9 – IDENTITY AGENT CERTIFICATION ..................................................................51


PARTICIPATION RULES

1 PRELIMINARY

These Participation Rules constitute the Participation Rules determined by the Registrar

pursuant to section 23 of the ECNL.

2 DEFINITIONS AND INTERPRETATION 2.1 Definitions

2.1.1 A term used in these Participation Rules and also in the ECNL has the same meaning in

these Participation Rules as it has in that legislation (unless the term is defined in these

Participation Rules).

2.1.2 In these Participation Rules capitalised terms have the meanings set out below:

ABN means an Australian Business Number and has the meaning given to it in the A New

Tax System (Australian Business Number) Act 1999 (Cth).

Access Credentials means a User identification and password, and any other details,

required for a Person to access the ELN.

Additional Participation Rules means the additional Participation Rules specific to the

Registrar’s Jurisdiction, if any, set out in Schedule 1, as amended from time to time.

ADI (authorised deposit-taking institution) has the meaning given to it in the Banking Act

1959 (Cth).

Amendment to Participation Rules Procedure means the procedure set out in Schedule

2, as amended from time to time.

Application Law has the meaning given to it in the ECNL and in South Australia is the

Electronic Conveyancing National Law (South Australia) Act 2013 (SA) and in Western

Australia is the Electronic Conveyancing Act 2014 (WA).

Approved Insurer means an insurer approved by APRA to offer general insurance in

Australia.

APRA means the Australian Prudential Regulation Authority.

Australian Credit Licence has the meaning given to it in the NCCP Act.

Australian Legal Practitioner has the meaning given to it in the relevant legislation of the

Jurisdiction in which the land the subject of the Conveyancing Transaction is situated and

in South Australia is a legal practitioner for the purposes of the Legal Practitioners Act

1981 (SA).


Business Day has the meaning given to it in the ECNL.

Caveat means a Document under the Land Titles Legislation giving notice of a claim to an

interest in land that may have the effect of an injunction to stop the registration of a

Registry Instrument or other Document in the Titles Register.

Certification Authority means a Gatekeeper Accredited Service Provider that issues

Digital Certificates that have been Digitally Signed using the Certification Authority’s

Private Key and provides certificate verification and revocation services for the Digital

Certificates it issues.

Certification Rules means the rules set out in Schedule 3, as amended from time to time.

Certifier means the Subscriber providing the certifications set out in the Certification Rules.

Client means a Person who has, or Persons who have, appointed a Subscriber as their

Representative pursuant to a Client Authorisation and caveators and applicants in a

Priority/Settlement Notice, extension of Priority Notice and withdrawal of

Priority/Settlement Notice who have appointed a Subscriber as their Representative but

have not provided a Client Authorisation.

Client Agent means a Person authorised to act as the Client’s agent but does not include

the Subscriber acting solely as the Client’s Representative.

Client Authorisation has the meaning given to it in the ECNL.

Client Authorisation Form means a form in substantial compliance with the form set out

in Schedule 4, as amended from time to time.

Commonwealth has the meaning given to it in the ECNL.

Compliance Examination has the meaning given to it in the ECNL.

Compliance Examination Procedure means the obligations and procedures set out in

Schedule 5, as amended from time to time.

Compromised means lost or stolen, or reproduced, modified, disclosed or used without

proper authority.

Contact Details means a Subscriber’s:

(a) physical address, registered office or principal place of business (as applicable); and

(b) postal address, phone number(s), fax number and email address, as recorded by

the ELNO.


Corporations Act means the Corporations Act 2001 (Cth).


Costs include costs, charges and expenses, including those incurred in connection with

advisers.

Credit Representative has the meaning given to it in the NCCP Act.

Credit Service has the meaning given to it in the NCCP Act and extends to a service with

respect to credit secured or to be secured by real property whether or not it is regulated by

that Act.

Crown means the government, a Minister of the Crown, a statutory corporation

representing the Crown or another entity representing the Crown.

Digital Certificate means an electronic certificate Digitally Signed by the Certification

Authority which:

(a) identifies either a Key Holder and/or the business entity that he/she represents; or a

device or application owned, operated or controlled by the business entity; and

(b) binds the Key Holder to a Key Pair by specifying the Public Key of that Key Pair; and

(c) contains the specification of the fields to be included in a Digital Certificate and the

contents of each.

Digitally Sign has the meaning given to it in the ECNL.

Digital Signature has the meaning given to it in the ECNL.


Duty means, for an electronic Registry Instrument or other electronic document, any

taxes, levies, imposts, charges and duties in connection with the electronic Registry

Instrument or other electronic document payable to the Duty Authority.

Duty Authority means the State Revenue Office of the Jurisdiction in which the land the

subject of the Conveyancing Transaction is situated.

ECNL means the Electronic Conveyancing National Law as adopted or implemented in a

Jurisdiction by the Application Law, as amended from time to time.

Electronic Workspace means a shared electronic workspace generated by the ELN.

ELN has the meaning given to it in the ECNL.

ELN Administrator means the Person appointed by the ELNO from time to time to

perform administrative functions within the ELN.

ELNO has the meaning given to it in the ECNL.

Gatekeeper means the Commonwealth government strategy to develop PKI to facilitate

government online service delivery and e-procurement.


Gatekeeper Accredited Service Provider means a service provider accredited by the

Gatekeeper Competent Authority.

Gatekeeper Competent Authority means the entity which approves an application for

Gatekeeper accreditation. The Gatekeeper Competent Authority for PKI is the Australian

Government Chief Information Officer, Australian Government Information Management

Office, Department of Finance and Deregulation.

Identifier Declaration means the declaration set out in Verification of Identity Standard

paragraph 4.

Identity Agent means a Person who is an agent of either a Subscriber, or a mortgagee

represented by a Subscriber, and who:

(a) the Subscriber or mortgagee reasonably believes is reputable, competent and

insured in compliance with Insurance Rule 2; and

(b) is authorised by the Subscriber or mortgagee to conduct verification of identity on

behalf of the Subscriber or mortgagee in accordance with the Verification of Identity

Standard.

Identity Agent Certification means a certification in substantial compliance with the

certification set out in Schedule 9, as amended from time to time.

Identity Declarant means a Person providing an Identifier Declaration.

Identity Verifier means the Person conducting a verification of identity in accordance

with the Verification of Identity Standard.

Individual has the meaning given to it in the ECNL.

Information Fees means fees for data provided by the Land Registry through the ELN.

Insolvency Event means, in relation to a Person, any of the following events:

(a) the Person is, or states that they are, unable to pay all the Person’s debts, as and

when they become due and payable; or

(b) the entrance into an arrangement, composition or compromise with, or assignment

for the benefit of, all or any class of the Person’s creditors or members or a

moratorium involving any of them; or

(c) the appointment of a receiver, receiver and manager, controller, administrator,

provisional liquidator or liquidator or the taking of any action to make such an

appointment; or

(d) an order is made for the winding up or dissolution of the Person or a resolution is

passed or any steps are taken to pass a resolution for its winding up or dissolution;

or


(e) something having a substantially similar effect to (a) to (d) happens in connection

with the Person under the law of any Jurisdiction.

Insurance Rules means the rules set out in Schedule 6, as amended from time to time.

Jeopardised means put at risk the integrity of the Titles Register by fraud or other means.

Jurisdiction has the meaning given to it in the ECNL.

Key means a string of characters used with a cryptographic algorithm to encrypt and

decrypt.

Key Holder means an Individual who holds and uses Keys and Digital Certificates on

behalf of a Subscriber, or in his/her own right in the case of a Key Holder who is also a

Subscriber.

Key Pair means a pair of asymmetric cryptographic Keys (one decrypting messages

which have been encrypted using the other) consisting of a Private Key and a Public Key.

Land Registry means the agency of a State or Territory responsible for maintaining the

Jurisdiction’s Titles Register.

Land Registry Fees means Information Fees and Lodgment Fees.

Land Titles Legislation has the meaning given to it in the ECNL.

Law Practice has the meaning given to it in the relevant legislation of the Jurisdiction in

which the land the subject of the Conveyancing Transaction is situated.

Licensed Conveyancer means a Person licensed or registered under the relevant

legislation of the Jurisdiction in which the land the subject of the Conveyancing

Transaction is situated and in Western Australia is a real estate settlement agent for the

purposes of the Settlement Agents Act 1981 (WA).

Local Government Officer means an employee or officer of a Local Government

Organisation.

Local Government Organisation means a local government council (however described)

established under any Commonwealth, State or Territory Law.

Lodge has the meaning given to it in the ECNL.

Lodgment Case means a Registry Instrument or other electronic Document or related

Registry Instruments or other electronic Documents which are or will be presented for

Lodgment at the same time, together with the relevant Lodgment Instructions.

Lodgment Fees means fees due to a Land Registry for Registry Instruments or other

electronic Documents Lodged with the Land Registry by the ELNO on behalf of the

Participating Subscribers.


Lodgment Instructions means a statement in electronic form which sets out the

information required by the Registrar to accept an electronic Registry Instrument or other

electronic Document for Lodgment.

Mortgage Broker means an individual who is:

(a) the holder of an Australian Credit Licence; or

(b) an employee or director of the holder of an Australian Credit Licence or of a related

body corporate of a holder of an Australian Credit Licence engaging in the Credit

Service on behalf of that licensee; or

(c) a Credit Representative of the holder of an Australian Credit Licence,

who provides a Credit Service which relates to credit secured or to be secured by real

property owned or to be owned by the person to whom the Credit Service is provided.

NCCP Act means the National Consumer Credit Protection Act 2009 (Cth).

Outstanding Conveyancing Transaction means a Conveyancing Transaction for which

an Electronic Workspace has been created in the ELN but the Lodgment Case for which

has not been Lodged.

Participating Subscriber means, for a Conveyancing Transaction, each Subscriber who

is involved in the Conveyancing Transaction either directly because it is a Party or

indirectly because it is a Representative of a Party.

Participation Rules, as amended from time to time, has the meaning given to it in the

ECNL.

Party means each Person who is a party to an electronic Registry Instrument or other

electronic Document in the Electronic Workspace for the Conveyancing Transaction, but

does not include a Representative.

Person has the meaning given to it in the ECNL.

Person Being Identified means the Person whose identity is being verified.

Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

PKI (Public Key Infrastructure) means Gatekeeper compliant technology, policies and

procedures based on public key cryptography used to create, validate, manage, store,

distribute and revoke Digital Certificates.

Prescribed Requirement means any Published requirement of the Registrar that

Subscribers are required to comply with.

Priority/Settlement Notice has the meaning given to it in the Land Titles Legislation of

the Jurisdiction in which the land the subject of the Conveyancing Transaction is situated.


Privacy Laws means all legislation, principles and industry codes relating to the

collection, use, disclosure, storage or granting of access rights to Personal Information,

including the Privacy Act 1988 (Cth) and any State or Territory privacy legislation.

Private Key means the Key in an asymmetric Key Pair that must be kept secret to ensure

confidentiality, integrity, authenticity and non-repudiation.

Public Servant means an employee or officer of the Commonwealth, a State or a

Territory.

Public Key means the Key in an asymmetric Key Pair which may be made public.

Publish means, for any information, to publish the information on the Registrar’s website.

Record has the meaning given to it in the ECNL.

Registrar has the meaning given to it in the ECNL.

Registration Authority means a Gatekeeper Accredited Service Provider that:

(a) is responsible for the registration of applicants for Digital Certificates by checking

evidence of identity Documentation submitted by the applicant; and

(b) is responsible for the provision of a completed and authorised application form

including copies of the submitted evidence of identity Documents to the relevant

Certification Authority; and

(c) may be responsible for the secure distribution of signed Digital Certificates to

Subscribers.

Registry Information means the data supplied in a Registry Information Supply.

Registry Information Supply means a service to supply data from the Titles Register or

Land Registry.

Registry Instrument has the meaning given to it in the ECNL.

Representative means a Subscriber who acts on behalf of a Client.

Responsible Subscriber means a Subscriber that, following Lodgment, is liable for

Lodgment Fees incurred and is responsible for the resolution of requisitions issued by the

Registrar for a Lodgment Case.

Security Item means User Access Credentials, passphrases, Private Keys, Digital

Certificates, Electronic Workspace identifiers and other items as specified from time to

time.

Signer means a User authorised by the Subscriber to Digitally Sign Registry Instruments

and other electronic Documents on behalf of the Subscriber.


State means New South Wales, Queensland, South Australia, Tasmania, Victoria and

Western Australia.

Subscriber has the meaning given to it in the ECNL.

Subscriber Administrator means a User authorised by the Subscriber to make the

changes permitted under Participation Rule 7.3.3 on behalf of the Subscriber.

Suspension Event means any ground pursuant to which a Subscriber may be suspended

as set out in Schedule 7, as amended from time to time.

Suspension and Termination Procedure means the procedure set out in Schedule 7, as

amended from time to time.

System Details means, for a Subscriber, its System Name, Contact Details and any other

information relating to the Subscriber held in the ELN.

System Name means, for a Subscriber, the name selected by the Subscriber to identify it

in the ELN, for example, its name or its registered business name.

Termination Event means any ground pursuant to which a Subscriber may be terminated

as set out in Schedule 7, as amended from time to time.

Territory means the Australian Capital Territory and the Northern Territory of Australia.

Title Activity Check means, for a Conveyancing Transaction, the notification of any

change to the information in the Titles Register relating to the land the subject of the

Conveyancing Transaction.

Titles Register has the meaning given to it in the ECNL.

Unrelated Third Party means, for a Subscriber, a Person who is not a principal, an

officer, director, employee, agent or contractor of the Subscriber.

User means an Individual authorised by a Subscriber to access and use the ELN on

behalf of the Subscriber.

Verification of Identity Standard means the standard set out in Schedule 8, as amended

from time to time.

2.2 Interpretation

In these Participation Rules, unless a contrary intention is evident:

2.2.1 A reference to these Participation Rules is a reference to these Participation Rules as

amended, varied or substituted from time to time.


2.2.2 A reference to any legislation or to any provision of any legislation includes:

(a) all legislation, regulations, proclamations, ordinances, by-laws and instruments

issued under that legislation or provision; and

(b) any modification, consolidation, amendment, re-enactment or substitution of that

legislation or provision.

2.2.3 A word importing:

(a) the singular includes the plural; and

(b) the plural includes the singular; and

(c) a gender includes every other gender.

2.2.4 A reference to a party includes that party’s administrators, successors and permitted

assigns.

2.2.5 If any act pursuant to these Participation Rules would otherwise be required to be done on

a day which is not a Business Day then that act may be done on the next Business Day,

and when an action is required by a party within a specified period of Business Days, the

period will be deemed to commence on the Business Day immediately following the day

on which the obligation is incurred.

2.2.6 Where a word or phrase is given a defined meaning, any other part of speech or

grammatical form in respect of that word or phrase has a corresponding meaning.

2.2.7 A reference to two or more Persons is a reference to those Persons jointly and severally.

2.2.8 A reference to a rule or schedule is a reference to a rule of, or a schedule to, these


2.2.9 A reference to a Participation Rule includes a reference to all of its sub-rules.

2.2.10 Where general words are associated with specific words which define a class, the general

words are not limited by reference to that class.

2.2.11 The rule headings are for convenience only and they do not form part of these


2.2.12 The word “or” is not exclusive.

2.2.13 Where there is any inconsistency between the description of a Subscriber’s obligations in

a Participation Rule and in a schedule to these Participation Rules, the Participation Rule

will prevail to the extent of the inconsistency.


3 COMPLIANCE WITH PARTICIPATION RULES

The Subscriber must:

(a) be able to comply with these Participation Rules at the time of applying to be a

Subscriber; and

(b) comply with these Participation Rules whilst being a Subscriber; and

(c) continue to comply with Participation Rules 6.1.2, 6.6, 6.7 (where compliance with

the Participation Rules is limited to this sub-rule), 6.9, 6.10, 6.11, 6.13.1(b), 7.7, 9.4,

9.5, 10 and 11 after ceasing to be a Subscriber,

unless the Registrar, in his or her absolute discretion, waives compliance by the

Subscriber with any Participation Rule in accordance with section 27 of the ECNL.

4 ELIGIBILITY CRITERIA

4.1 ABN

The Subscriber must have an ABN.

4.2 Status

4.2.1 The Subscriber must be a Person or a partnership.

4.2.2 If the Subscriber is a body corporate, the Subscriber must:

(a) be incorporated, formed or constituted under the Corporations Act or under any

other legislation; and

(b) ensure that the constituting Documents of the Subscriber empower the Subscriber to

assume the obligations set out in these Participation Rules and to do all things that it

can reasonably contemplate will be required by these Participation Rules.

4.3 Character

4.3.1 The Subscriber must be of good character and reputation and, without limitation, must:

(a) ensure that the Subscriber is not and has not been subject to any of the matters

listed in (b)(i) to (v) below; and

(b) take reasonable steps to ensure that the Subscriber’s principals, directors, partners,

officers and Subscriber Administrators are not and have not been subject to any of

the matters listed in (i) to (v) below:

(i) an Insolvency Event within the last 5 years; or


(ii) a conviction for fraud or an indictable offence or any offence for dishonesty

against any law in connection with business, professional or commercial

activities; or

(iii) disqualification from managing a body corporate under the Corporations Act;

or

(iv) any disciplinary action of any government or governmental authority or

agency, or any regulatory authority of a financial market or a profession,

which may impact on that Person’s conduct of a Conveyancing Transaction;

or

(v) any refusal of an application to subscribe to an electronic Lodgment service.

4.3.2 Where the Subscriber is:

(a) an ADI; or

(b) an Australian Legal Practitioner or a Law Practice; or

(c) a Licensed Conveyancer; or

(d) the Crown in right of the Commonwealth, a State or a Territory; or

(e) a Public Servant acting on behalf of the Crown in right of the Commonwealth, a

State or a Territory; or

(f) a holder of an Australian Credit Licence; or

(g) a Local Government Organisation,

the Subscriber is deemed to comply with Participation Rule 4.3.1(a).

4.3.3 Where the Subscriber’s principal, director, partner, officer or Subscriber Administrator is:

(a) an officer or employee of an ADI; or

(b) an Australian Legal Practitioner; or

(c) a Licensed Conveyancer; or

(d) a Public Servant acting on behalf of the Crown in right of the Commonwealth, a


(e) a fit and proper Person for the purpose of performing duties in relation to the credit

activities authorised by an Australian Credit Licence; or

(f) a Local Government Officer acting on behalf of a Local Government Organisation,

the Subscriber is deemed to comply with Participation Rule 4.3.1(b) for that principal,

director, partner, officer or Subscriber Administrator.


Note: For a body corporate registered under the Corporations Act, ‘officer’ has the meaning given to it in the Corporations Act.

4.4 Insurance

The Subscriber must comply with the Insurance Rules.

5 THE ROLE OF SUBSCRIBERS

5.1 Subscriber’s roles

5.1.1 The Subscriber may act on its own behalf or, subject to Participation Rule 5.3, on behalf

of Clients when accessing and using the ELN.

5.1.2 To the extent that the Subscriber Digitally Signs electronic Documents on behalf of a

Client, the Subscriber does so as agent for the Client.

5.2 Subscriber as principal

Subject to Participation Rule 5.1.2, the Subscriber incurs rights and obligations under

these Participation Rules as principal despite any Client Authorisation or other agency

relationship entered into by the Subscriber.

5.3 Subscriber who acts as Representative

A Representative must:

(a) comply with the laws of the Jurisdiction in which the land the subject of the

Conveyancing Transaction is situated regarding who can conduct a Conveyancing

Transaction; and

(b) take reasonable steps to ensure that a Signer complies with the laws of the

Jurisdiction in which the land the subject of the Conveyancing Transaction is

situated regarding who can conduct a Conveyancing Transaction and Digitally Sign

Registry Instruments and other electronic Documents.

5.4 Responsible Subscribers

5.4.1 The Participating Subscribers must agree on the selection of a Responsible

Subscriber for every Lodgment Case.

5.4.2 A Responsible Subscriber must take reasonable steps to ensure that it does not pass on

information to the Registrar obtained from another Participating Subscriber that it knows

or suspects is incorrect, incomplete, false or misleading.


5.5 Subscriber as trustee and partnerships

5.5.1 If the Subscriber acts at any time in the capacity of a trustee, these Participation Rules

bind the Subscriber in its personal capacity and in its capacity as trustee.

5.5.2 If the Subscriber is a partnership:

(a) these Participation Rules bind the partnership; and

(b) these Participation Rules bind the Subscriber and each Person who is a partner of

the partnership at any time despite any changes to the partners and any

reconstitution of the partnership (whether by the death, incapacity or retirement of

any partner or the admission of any new partner or otherwise); and

(c) the Subscriber must do anything the ELNO or Registrar requires (such as obtaining

consents, signing and producing Documents and getting Documents completed and

signed) to give full effect to this Participation Rule.

6 GENERAL OBLIGATIONS

6.1 Ensure User compliance

6.1.1 The Subscriber must ensure that each of its Users is aware of the terms of these

Participation Rules as appropriate to their use of the ELN.

6.1.2 The Subscriber is responsible for all use of the ELN by any of its Users.

6.2 Keep Subscriber System Details complete and up-to-date

If any of the information which forms part of a Subscriber’s System Details changes, the

Subscriber must:

(a) promptly update its System Details accordingly; or

(b) if the Subscriber does not have the level of access to the ELN required to make the

necessary updates to the System Details, promptly notify the ELN Administrator of

the changes required.

6.3 Client Authorisation

If the Subscriber is a Representative, the Subscriber must:

(a) use the Client Authorisation Form for any Client Authorisation it enters into; and

(b) except for Caveats, Priority/Settlement Notices, Extensions of Priority Notices and

Withdrawals of Priority/Settlement Notices, for which a Client Authorisation is

optional, enter into a Client Authorisation with its Client before the Subscriber

Digitally Signs any Registry Instrument or other electronic Document in the ELN; and


(c) comply with the Client Authorisation and act in accordance with its terms; and

(d) take reasonable steps to verify the authority of each Person entering into a Client

Authorisation on behalf of a Client to both bind the Client to the Client Authorisation

and to the Conveyancing Transaction(s) the subject of the Client Authorisation; and

(e) take reasonable steps to ensure that any Client Authorisation is signed by the

Subscriber’s Client or their Client Agent.

6.4 Right to Deal

(a) Where the Subscriber is a Representative, for each Conveyancing Transaction the

Subscriber must take reasonable steps to verify that its Client is a legal Person and

has the right to enter into the Conveyancing Transaction.

(b) Where the Subscriber is a mortgagee, or the Subscriber represents a mortgagee, for

each mortgage the Subscriber must take reasonable steps to verify that the

mortgagor is a legal Person and has the right to enter into the mortgage.

6.5 Verification of identity

6.5.1 The Subscriber must take reasonable steps to verify the identity of:

(a) Clients: each Client or each of their Client Agents; and

(b) Mortgagors:

(i) for mortgages, each mortgagor or each of their agents, where the Subscriber

is a mortgagee, and the mortgagor (in its capacity as mortgagor) does not

have a Representative; and

(ii) for mortgages, each mortgagor or each of their agents, where the Subscriber

represents a mortgagee, and the mortgagor (in its capacity as mortgagor)

does not have a Representative - however, the Subscriber need not take

reasonable steps to verify the identity of each mortgagor or their agent if the

Subscriber is reasonably satisfied that the mortgagee has taken reasonable

steps to verify the identity of each mortgagor or their agent; and

(c) Persons to whom certificates of title are provided:

(i) any Client or Client Agent, prior to the Subscriber providing a

(duplicate/paper) certificate of title to that Client or Client Agent; and

(ii) any existing mortgagor, former mortgagor or their agent, prior to the

Subscriber providing a (duplicate/paper) certificate of title to that existing

mortgagor, former mortgagor or their agent - however, the Subscriber need

not take reasonable steps to verify the identity of each mortgagor, former


mortgagor or their agent if the Subscriber is reasonably satisfied that the

mortgagee has taken reasonable steps to verify the identity of each

mortgagor, former mortgagor or their agent; and

(d) Signers: each of its Signers, prior to the initial allocation of a Digital Certificate to

the Signer; and

(e) Subscriber Administrators: each of its Subscriber Administrators, prior to their

appointment as a Subscriber Administrator.

6.5.2 For the purposes of complying with Participation Rule 6.5.1, the Subscriber, or a

mortgagee represented by the Subscriber, can either:

(a) apply the Verification of Identity Standard; or

(b) verify the identity of a Person in some other way that constitutes the taking of

reasonable steps.

6.5.3 The Subscriber, or a mortgagee represented by the Subscriber, must undertake further

steps to verify the identity of a Person Being Identified and/or any Identity Declarant

where:

(a) the Subscriber or mortgagee knows or ought reasonably to know that:

(i) any identity Document produced by the Person Being Identified and/or any

Identity Declarant is not genuine; or


Identified and/or any Identity Declarant is not a reasonable likeness of the


(iii) the Person Being Identified and/or any Identity Declarant does not appear to

be the Person to which the identity Document(s) relate; or


6.5.4 The Subscriber need not re-verify the identity of the Person Being Identified if:

(a) the Subscriber complied with Participation Rule 6.5.1 within the previous 2 years;

and

(b) the Subscriber takes reasonable steps to ensure that it is dealing with the Person

Being Identified.

6.5.5 If the Verification of Identity Standard is used:

(a) the Subscriber, or a mortgagee represented by the Subscriber, may use an Identity

Agent; and


(b) where an Identity Agent is used, the Subscriber or the mortgagee must direct the

Identity Agent to use the Verification of Identity Standard; and

(c) the Identity Verifier must be:

(i) the Subscriber and/or the Subscriber’s Identity Agent; or

(ii) where a Subscriber represents a mortgagee, that mortgagee and/or that

mortgagee’s Identity Agent; and

(d) the Subscriber or the mortgagee must receive from any Identity Agent:

(i) copies of the Documents produced to verify the identity of the Person Being

Identified and/or any Identity Declarant signed, dated and endorsed as a true

copy of the original by the Identity Agent; and

(ii) an Identity Agent Certification.

6.5.6 Subject to Participation Rule 6.5.3, compliance with the Verification of Identity Standard

by:

(a) the Subscriber and/or its Identity Agent; or

(b) where the Subscriber represents a mortgagee, that mortgagee and/or that

mortgagee’s Identity Agent,

will be deemed to constitute taking reasonable steps for the purposes of Participation

Rule 6.5.1.

6.6 Supporting evidence

The Subscriber must retain the evidence supporting an electronic Registry Instrument or

other electronic Document for at least seven years from the date of Lodgment of the

Registry Instrument or other electronic Document that is registered or recorded including:

(a) any evidence required by the Duty Authority; and

(b) any Client Authorisation and any evidence supporting that Client Authorisation; and

(c) any evidence supporting a Party’s right to enter into the Conveyancing Transaction;

and

(d) any evidence supporting verification of identity; and

(e) any other evidence demonstrating compliance with Prescribed Requirements.

6.7 Compliance with laws and Participation Rules

The Subscriber must comply with any applicable laws (including any applicable Privacy

Laws) for the Jurisdiction in which the land the subject of the Conveyancing Transaction is

situated and these Participation Rules.


6.8 Compliance with directions

6.8.1 The Subscriber must comply with any reasonable direction of the Registrar.

6.8.2 The Subscriber must comply with any direction of the Registrar, or of the ELNO at the

Registrar’s direction, given in response to an emergency situation as referred to in the

ECNL, in the manner and timing set out in the direction.

6.9 Assistance

The Subscriber must provide reasonable assistance to the Registrar, the ELNO and each

other Subscriber to enable those parties to comply with the ECNL and the Land Titles

Legislation in relation to a particular Conveyancing Transaction.

6.10 Protection of information

The Subscriber must take reasonable steps to ensure that information provided to the

Subscriber by any other Subscriber, any Client, the Registrar or by the ELNO is protected

from unauthorised use, reproduction or disclosure.

6.11 Information

The Subscriber must take reasonable steps to ensure that all the information it supplies in

relation to a Conveyancing Transaction is to the Subscriber’s knowledge, information and

belief correct, complete and not false or misleading.

6.12 No assignment

The Subscriber must not assign, novate, transfer or otherwise deal with its subscription to

the ELN.

6.13 Mortgages

6.13.1 Where a mortgagor (in its capacity as mortgagor) is not a Subscriber or represented by a

Subscriber, the mortgagee, or the mortgagee’s Representative, must:

(a) ensure that the mortgagor grants a mortgage on the same terms as the mortgage

signed by, or on behalf of, the mortgagee; and

(b) ensure that it holds the mortgage granted by the mortgagor; and

(c) provide Certification 5 of the Certification Rules.

6.13.2 Where the mortgagee or its Representative signs the mortgage, the mortgagee signs only

on its own behalf and not on behalf of the mortgagor.


6.14 (Deleted)

7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY

7.1 Protection measures

The Subscriber must take reasonable steps to:

(a) comply with an ELNO’s security policy, including without any limitation, in relation to:

(i) the technology required to enable the Subscriber to access the ELN; and

(ii) the specification of virus protection software required to be installed on the

Subscriber’s computers; and

(iii) protection of Security Items; and

(iv) training and monitoring of its Users in relation to the Subscriber’s security

obligations; and

(b) not do anything that it knows or ought reasonably to know is likely to have an

adverse effect on the operation, security, integrity, stability or the overall efficiency of

the ELN; and

(c) not fail to do anything within its reasonable control, the omission of which, it knows

or ought reasonably to know is likely to have an adverse effect on the operation,

security, integrity, stability or the overall efficiency of the ELN.

7.2 Users


(a) take reasonable steps to ensure that only Users access the ELN; and

(b) ensure that each of its Users has received training appropriate to their use of the

ELN.

7.3 User access

7.3.1 The Subscriber must keep up to date within the ELN:

(a) its Users’ Access Credentials; and

(b) signing rights linked to those Access Credentials; and

(c) administrative rights linked to those Access Credentials.

7.3.2 The Subscriber must ensure that, at all times, it has at least one Subscriber

Administrator.


7.4.2 Wh re a Signer is:

(a)

an Australian Legal Practitioner; or

(b)

a Licensed Conveyancer; or

(c)

a Public Servant acting on behalf of the Crown in right of the Commonwealth, a


(d)

a Local Government Officer acting on behalf of a Local Government Organisation,

7.3.3 The Subscriber:

(a) is taken to have made any change to the items described in Participation Rule 7.3.1

made by any Person (other than an Unrelated Third Party of the Subscriber) using

Access Credentials that, at the time the change is requested, have linked to them

the necessary signing rights and administrative rights to make the change; and

(b) irrevocably and unconditionally waives any right it might otherwise have to claim that

the Person does not have authority to make the change (other than any claim the

Subscriber has against the Person).

7.4 Signers

7.4.1 The Subscriber must:

(a) comply with Participation Rule 6.5.1(d); and

(b) take reasonable steps to ensure that the Signer is not or has not been subject to:

(i) an Insolvency Event within the last 5 years; or

(ii) a conviction of fraud or an indictable offence or any offence for dishonesty

against any law in connection with business, professional or commercial

activities; or

(iii) disqualification from managing a body corporate under the Corporations Act;

or

(iv) any disciplinary action of any government or governmental authority or

agency, or any regulatory authority of a financial market or a profession, which

may impact on a Signer’s conduct of a Conveyancing Transaction.

e

the Subscriber is deemed to comply with Participation Rule 7.4.1(b).

7.5 Digital Certificates

7.5.1 Electronic Documents to be Lodged through the ELN must be Digitally Signed, where the

electronic Document requires a Digital Signature, using a Private Key to create the

Subscriber’s Digital Signature.


7.5.2 The Subscriber must obtain and maintain valid at least one Digital Certificate.

7.5.3 The Subscriber must take reasonable steps to ensure that only Signers Digitally Sign

electronic Registry Instruments or other electronic Documents.

7.5.4 The Subscriber must ensure that all information provided to any Certification Authority, or

to any Registration Authority, or to the ELNO for the purpose of obtaining a Digital

Certificate, is correct, complete and not false or misleading.

7.6 (Deleted)

7.7 Notification of Jeopardised Conveyancing Transactions

7.7.1 Where to the Subscriber’s knowledge, information or belief a Conveyancing

Transaction has been Jeopardised:

(a) where it is possible to do so, the Subscriber must unsign any electronic Documents

relating to the Conveyancing Transaction immediately; or

(b) where it is not possible to unsign any electronic Document, the Subscriber must

immediately notify the ELNO of the situation.

7.7.2 The Subscriber must bring to the attention of the other Participating Subscribers any

information about the Conveyancing Transaction that it believes to be incorrect,

incomplete, false or misleading or that the Conveyancing Transaction has been

Jeopardised.

7.8 Revoking authority

7.8.1 If a Subscriber no longer intends:

(a) a Person to be a User, the Subscriber must promptly revoke the User’s access to

and use of the ELN; or

(b) a Person to be a Signer, the Subscriber must promptly revoke the User’s signing

rights within the ELN and, where appropriate, request the Certification Authority to

revoke the Signer’s Digital Certificate; or

(c) a Person to be a Subscriber Administrator, the Subscriber must promptly revoke the

User’s administrative rights within the ELN.

7.8.2 The Subscriber must immediately withdraw its authorisation to Digitally Sign electronic

Documents from any Person who ceases to be the employee, agent or contractor of the

Subscriber.

7.8.3 If a Subscriber is restricted in its use of the ELN by the Registrar or the ELNO, the

Subscriber must promptly prevent any of its Users from accessing and using the ELN

other than in accordance with the restriction.


7.9 Compromised Security Items

7.9.1 If a Subscriber becomes aware that any of the Security Items of any of its Users has been

or is likely to be Compromised, the Subscriber must:

(a) immediately revoke the User’s authority to access and use the ELN and prevent the

User from accessing and using the ELN; and

(b) for a Digital Certificate:

(i) immediately check all Electronic Workspaces in which the Private Key has

been used to Digitally Sign any electronic Documents and unsign any

electronic Documents in accordance with Participation Rule 7.9.2; and

(ii) promptly notify the Certification Authority and revoke or cancel the Digital

Certificate (including doing everything reasonably necessary to cause the

Certification Authority to revoke or cancel it); and

(iii) promptly notify the ELNO.

7.9.2 If a Subscriber becomes aware or suspects that any of its Private Keys have been

used to Digitally Sign any electronic Documents without its authorisation or the

authorisation of any Client on whose behalf the electronic Documents are purported to be

Digitally Signed:

(a) where it is possible to do so, the Subscriber must unsign the electronic Documents

immediately; or

(b) where it is not possible to unsign the electronic Documents, the Subscriber must

immediately notify the ELNO of the situation.

7.10 Certifications

The Subscriber must provide those of the certifications set out in the Certification Rules as

are required when Digitally Signing an electronic Registry Instrument or other electronic

Document.

8 AMENDMENT OF PARTICIPATION RULES

The Subscriber must comply with any amendment made to these Participation Rules by

the Registrar pursuant to the Amendment to Participation Rules Procedure.

9 RESTRICTION, SUSPENSION AND TERMINATION

9.1 Comply with directions relating to restriction of access or use

The Subscriber must comply with any direction of the Registrar, or of the ELNO at the

Registrar’s direction, restricting access and use of the ELN.


9.2 Suspension at direction of Registrar

The Subscriber may be suspended by the Registrar, or by the ELNO at the direction of the

Registrar, at any time if a Suspension Event occurs.

9.3 Termination at direction of Registrar

The Subscriber may be terminated by the Registrar, or by the ELNO at the direction of the

Registrar, at any time if a Termination Event occurs.

9.4 Rights and obligations on suspension, termination or resignation

Suspension or termination of a Subscriber, or its resignation as a Subscriber, does not

affect any right or liability of any party which:

(a) has accrued at the time the suspension, termination or resignation takes effect; or

(b) may arise, accrue or crystallise after that time out of, or by reason of, any facts or

circumstances occurring or in existence at or before the time the suspension,

termination or resignation takes effect.

9.5 Further steps by Subscriber

If the Subscriber is restricted, suspended or terminated or the Subscriber resigns, the

Subscriber must, at its own expense:

(a) take reasonable steps to ensure that any Outstanding Conveyancing Transaction for

which the Subscriber is a Participating Subscriber is completed (such as facilitating

another Subscriber taking over the Subscriber’s role in the Outstanding

Conveyancing Transaction) and do anything else in connection with the ELN which it

could reasonably be expected to do in order to minimise inconvenience to any other

Person; and

(b) do anything the ELNO or Registrar considers reasonable to achieve the outcomes

described in Participation Rule 9.5(a), such as entering into arrangements, obtaining

consents, submitting electronic Documents, Digitally Signing electronic Documents

where required, and producing Documents; and

(c) notify its Client (if any), and each other Participating Subscriber, in each Outstanding

Conveyancing Transaction for which the Subscriber is a Participating Subscriber, of

the restriction, suspension, termination or resignation.


10 COMPLIANCE


(a) comply with Section 34 of the ECNL and the Compliance Examination Procedure;

and

(b) give written notice to the ELNO, as soon as practicable, if it becomes aware that it

has breached or may in the future be no longer able to comply with these

Participation Rules; and

(c) remedy any non-compliance with these Participation Rules within 10 Business Days

(or such longer time determined by the Registrar in his or her absolute discretion

having regard to the nature of the breach) from when it becomes aware that it has

breached these Participation Rules; and

(d) take such action as is necessary in order to avoid a breach in circumstances where

the Subscriber becomes aware that it may in the future be no longer able to comply

with these Participation Rules.

11 PROHIBITIONS

The Subscriber must not:

(a) modify or alter any Registry Information or Title Activity Check data for a

Conveyancing Transaction or do anything that allows or causes another Person to

do any of these things; or

(b) use, reproduce or disclose, or allow another Person to use, reproduce or disclose,

Registry Information or Title Activity Check data for a Conveyancing Transaction,

except for the purpose of the Conveyancing Transaction or where required by law to

do so; or

(c) use or participate in the ELN other than in accordance with these Participation

Rules; or

(d) other than information which the Subscriber enters into the ELN, use, reproduce or

disclose any information passing into or out of the ELN in connection with a

Conveyancing Transaction except for the purpose of the Conveyancing Transaction

or where required by law to do so.

12 ADDITIONAL PARTICIPATION RULES

The Subscriber must comply with the Additional Participation Rules, if any.


SCHEDULE 1 -ADDITIONAL PARTICIPATION RULES

None.


SCHEDULE 2 – AMENDMENT TO PARTICIPATION RULES PROCEDURE

1 Amendments with prior consultation

1.1 Any amendment to these Participation Rules must be the subject of good faith

consultation by the Registrar with a representative group of Subscribers and, where

relevant, Subscribers’ local and national professional associations, regulators and insurers

(as reasonably determined by the Registrar) before the amendment comes into effect.

1.2 Each amendment must be notified to all Subscribers at least 20 Business Days before

the amendment comes into effect. The notification must contain the date the

amendment comes into effect.

2 Amendments without prior consultation

2.1 The Registrar may determine that an amendment to these Participation Rules need not be

the subject of prior consultation or notification in accordance with paragraph 1 before the

amendment comes into effect, if the Registrar determines in good faith that:

(a) such a course is required by law; or

(b) an emergency situation, as referred to in the ECNL, exists.

2.2 Notwithstanding paragraph 2.1, each amendment must be notified to all Subscribers as

soon as reasonably practicable before the amendment comes into effect. The

notification must contain the date the amendment comes into effect.


SCHEDULE 3 – CERTIFICATION RULES

1 The Certifier has taken reasonable steps to verify the identity of the

[transferor/transferee/mortgagee/mortgagor/caveator/applicant].

2 The Certifier holds a properly completed Client Authorisation for the Conveyancing

Transaction including this Registry Instrument or Document.

3 The Certifier has retained the evidence supporting this Registry Instrument or Document.

4 The Certifier has taken reasonable steps to ensure that this Registry Instrument or

Document is correct and compliant with relevant legislation and any Prescribed

Requirement.

5 The Certifier, or the Certifier is reasonably satisfied that the mortgagee it represents,:

(a) has taken reasonable steps to verify the identity of the mortgagor; and

(b) holds a mortgage granted by the mortgagor on the same terms as this Registry

Instrument or Document.

6 The Certifier has:

(a) retrieved; and

(b) either securely destroyed or made invalid

the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry

Instrument or Document.


CL

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SCHEDULE 4 - CLIENT AUTHORISATION FORM

CLIENT AUTHORISATION

When this form is signed, the Representative is authorised to act for the Client in a Conveyancing Transaction(s).

Privacy Collection Statement: The information in this form is collected under statutory authority and used for the purpose of maintaining publicly searchable registers and indexes.

Representative Reference: __

CLIENT 1 CLIENT 2

NAME

ACN/ARBN

ADDRESS

AUTHORITY TYPE SPECIFIC AUTHORITY STANDING AUTHORITY BATCH AUTHORITY

(set out conveyancing transaction ends on revocation or expiration date: / _/ (attach details of conveyancing details below)

(tick relevant conveyancing transaction(s) below) transaction(s))

CONVEYANCING TRANSACTION(S) 1 CONVEYANCING TRANSACTION(S) 2

PROPERTY ADDRESS

LAND TITLE REFERENCE(S)

(and/or property description)

CONVEYANCING

TRANSFER MORTGAGE CAVEAT TRANSFER MORTGAGE CAVEAT

TRANSACTION(S) PRIORITY/

SETTLEMENT NOTICE

DISCHARGE/

RELEASE OF MORTGAGE

WITHDRAWAL

OF CAVEAT

PRIORITY/

SETTLEMENT NOTICE

DISCHARGE/

RELEASE OF MORTGAGE

WITHDRAWAL

OF CAVEAT

OTHER OTHER

ADDITIONAL INSTRUCTIONS

I CERTIFY that:

CLIENT 1 / CLIENT AGENT 1 CLIENT 2 / CLIENT AGENT 2

(a) I am the Client or Client Agent; and

(b) I have the legal authority to instruct the Representative in relation to the Conveyancing Transaction(s); and

(c) If I am acting as a Client Agent that I have no notice of the revocation of my authority to act on behalf of the Client.

I AUTHORISE the Representative to act on my behalf, or where I am a Client Agent to act on behalf of the Client, in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on my behalf as required for the Conveyancing Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land Registry; and

(c) authorise any financial settlement involved in the Conveyancing Transaction(s); and

(d) do anything else necessary to complete the Conveyancing Transaction(s).

DATE / / DATE / /

CLIENT/CLIENT AGENT NAME CLIENT/CLIENT AGENT NAME

CAPACITY CAPACITY

AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable) AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable)

NAME DATE NAME DATE


SIG

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SIG

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S A

ND

SIG

NIN

G REPRESENTATIVE REPRESENTATIVE AGENT (if applicable)

NAME

ACN/ARBN

ADDRESS

I/We CERTIFY that reasonable steps have been taken to ensu the Persons named above as Client or Client Agent.

SIGNATURE OF REPRESENTATIVE OR REPRESENTATIVE AGENT I

DATE / /

SIGNATORY NAME:

CAPACITY:

re that this Client Authorisation was signed by each of

F APPLICABLE:

DATE / /

SIGNATORY NAME:

CAPACITY:

Terms of this Client Authorisation

1 What is Authorised

The Client authorises the Representative to act on behalf of the Client in accordance with

the terms of this Client Authorisation and any Participation Rules and any Prescribed

Requirement to:

(a) sign Documents on the Client’s behalf as required for the Conveyancing

Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land

Registry; and



The Client acknowledges that the Client is bound by any Documents required in

connection with a Conveyancing Transaction that the Representative signs on the Client’s

behalf in accordance with this Client Authorisation.

2 Mortgagees

Where:

(a) the Representative represents the Client in the Client’s capacity as mortgagee; and

(b) the Client represents to the Representative that the Client has taken reasonable

steps to verify the identity of the mortgagor,

the Client indemnifies the Representative for any loss resulting from the Client’s failure to

take reasonable steps to verify the identity of the mortgagor.


3 Revocation

This Client Authorisation may be revoked by either the Client or the Representative giving

notice in writing to the other that they wish to end this Client Authorisation.

4 Privacy and Client Information

The Client acknowledges that information relating to the Client that is required to complete

a Conveyancing Transaction, including the Client’s Personal Information, may be collected

by and disclosed to the Duty Authority, the ELNO, the Land Registry, the Registrar and

third parties (who may be located overseas) involved in the completion of the

Conveyancing Transaction or the processing of it, and consents to the collection and

disclosure of that information to any of those recipients, including to those who are

overseas. For further information about the collection and disclosure of your Personal

Information, refer to the relevant party’s privacy policy.

5 Applicable Law

This Client Authorisation is governed by the law in force in the Jurisdiction in which the

Property is situated. The Client and the Representative submit to the non-exclusive

jurisdiction of the courts of that place.

6 Meaning of Words Used in this Client Authorisation

In this Client Authorisation, capitalised terms have the meaning set out below:

Australian Legal Practitioner has the meaning given to it in the relevant legislation of the

Jurisdiction in which the property is situated and in South Australia is a legal practitioner

for the purposes of the Legal Practitioners Act 1981 (SA).

Batch Authority means an authority for the Representative to act for the Client in a batch

of Conveyancing Transactions details of which are attached to this Client Authorisation.

Capacity means the role of the signatory (for example an attorney or a director of a

company).

Caveat means a Document giving notice of a claim to an interest in land that may have

the effect of an injunction to stop the registration of a Registry Instrument or other

Document in the Titles Register.

Client means the Person or Persons named in this Client Authorisation.

Client Agent means a Person authorised to act as the Client’s agent but does not include

the Representative acting solely in this role.


Discharge/Release of Mortgage means a Document that discharges or releases a

Mortgage.



Duty Authority means the State Revenue Office of the Jurisdiction in which the property

is situated.


Jurisdiction by the application law, as amended from time to time.

ELNO means Electronic Lodgment Network Operator and has the meaning given to it in

the ECNL.

Identity Agent means a Person who is an agent of either a Representative, or a

mortgagee represented by a Representative, and who:

(a) the Representative or mortgagee reasonably believes is reputable, competent and

appropriately insured; and

(b) is authorised by the Representative or mortgagee to conduct verification of identity

on behalf of the Representative or mortgagee in accordance with the Verification of

Identity Standard.

Jurisdiction means an Australian State or Territory.

Land Registry means the agency of a State or Territory responsible for maintaining the

Jurisdiction’s Titles Register.

Land Title Reference means the relevant Land Registry’s unique identifier(s) for the

property.

Law Practice has the meaning given to it in the relevant legislation of the Jurisdiction in

which the land the subject of the Conveyancing Transaction is situated.


legislation of the Jurisdiction in which the property is situated and in Western Australia is a

real estate settlement agent for the purposes of the Settlement Agents Act 1981 (WA).

Mortgage means a Document by which a Person charges an estate or interest in land as

security.

Participation Rules, as amended from time to time, has the meaning given to it in the

ECNL.



Prescribed Requirement means any Published requirement of the Registrar that

Representatives are required to comply with.

Priority/Settlement Notice means a notice (other than a Caveat) which prevents (subject

to specified exceptions) registration or recording in the Titles Register of a Registry


Instrument or other Document affecting land or an interest in land until the notice lapses or

is withdrawn, removed or cancelled.




Representative is the Australian Legal Practitioner, Law Practice or Licensed

Conveyancer named in this Client Authorisation who acts on behalf of the Client and

under the relevant legislation of the Jurisdiction in which the property is situated can

conduct a Conveyancing Transaction.

Representative Agent means a Person authorised by a Representative to act as the

Representative’s agent. For the avoidance of doubt this can include an Identity Agent.

Specific Authority means an authority for the Representative to act for the Client in

completing the Conveyancing Transactions described in this Client Authorisation.

Standing Authority means an authority for the Representative to act for the Client as

described in this Client Authorisation for the period of time set out in this Client

Authorisation.


Transfer includes the preparation of all Documents required to effect a purchase or sale

of land or any other transfer of land, and the liaison with, where relevant, any mortgagee

or proposed mortgagee.

Withdrawal of Caveat means a Document which removes a Caveat.


SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE

1 Power to request information and Documents

1.1 The Registrar or the Registrar’s delegate must provide notice to the Subscriber.

1.2 The notice must state:

(a) the time within which the information must be furnished and/or the Document must

be produced (which must be not less than 10 Business Days after the giving of the

notice); and

(b) how information is to be furnished and/or the Document is to be produced.

1.3 A notice under paragraph 1.2 may be given in writing or by any electronic means that the

Registrar or the Registrar’s delegate considers appropriate.

1.4 The Subscriber to whom a notice is given under paragraph 1.2 must comply with the

requirements set out in the notice within the period specified in the notice.

1.5 (Deleted)

2 Inspection and retention of Documents

2.1 If an original Document is produced in accordance with a notice given under paragraph

1.2, the Registrar or the Registrar’s delegate may do one or more of the following:

(a) inspect the Document; or

(b) make a copy of, or take an extract from, the Document; or

(c) retain the Document for as long as is reasonably necessary for the purposes of the

Compliance Examination to which the Document is relevant.

2.2 If requested by the Subscriber, as soon as practicable after the Registrar or the

Registrar’s delegate retains a Document under paragraph 2.1, the Registrar or the

Registrar’s delegate must give a receipt for it to the Person who produced it. The receipt

must identify in general terms the Document retained.


3 Return of retained Documents

3.1 The Registrar or the Registrar’s delegate must as soon as reasonably practicable return

an original Document retained under paragraph 2.1 to the Subscriber, if the Registrar or

the Registrar’s delegate is satisfied that its continued retention is no longer necessary.

3.2 The Registrar or the Registrar’s delegate is not bound to return any Document where the

Document has been provided to any police authority or anyone else entitled to the

Document pursuant to any law or court order.

4 Access to retained Documents

4.1 Until an original Document retained under paragraph 2.1 is returned to its owner, the

Registrar or the Registrar’s delegate must allow a Person otherwise entitled to possession

of the Document to inspect, make a copy of, or take an extract from, the Document at a

reasonable time and place decided by the Registrar or the Registrar’s delegate.

4.2 Paragraph 4.1 does not apply if it is impracticable or it would be reasonable not to allow

the Document to be inspected or copied or an extract from the Document to be taken.

5 Costs

5.1 If the Subscriber is found to be in material breach of the Participation Rules, the

Subscriber must, if required by the Registrar, pay all reasonable fees and Costs incurred

as a direct result of the Registrar or the Registrar’s delegate carrying out the Compliance

Examination. If the Subscriber is not found to be in material breach, such fees and Costs

will not be recoverable from the Subscriber.

5.2 The Cost of all actions required to be taken by the Subscriber to remedy any breach of

these Participation Rules identified by the Registrar or the Registrar’s delegate is to be

paid by the Subscriber.


SCHEDULE 6 – INSURANCE RULES

1 Subscriber insurance

1.1 Each Subscriber must maintain professional indemnity insurance:

(a) which specifically names the Subscriber as being insured; and

(b) with an Approved Insurer; and

(c) for an insured amount of at least $1.5 million per claim (including legal Costs); and

(d) having an excess per claim of no greater than $20,000; and

(e) having an annual aggregate amount of not less than $20,000,000; and

(f) which includes coverage for Conveyancing Transactions; and

(g) the terms of which do not limit compliance with Insurance Rules 1.1(a) to (f).

1.2 Each Subscriber must maintain fidelity insurance:






(f) which provides coverage for third party claims arising from dishonest and fraudulent

acts; and

(g) which includes coverage for Conveyancing Transactions; and

(h) the terms of which do not limit compliance with Insurance Rules 1.2(a) to (g).

1.3 If a Subscriber does not comply with Insurance Rules 1.1 and 1.2, the Subscriber must

maintain professional indemnity insurance:







acts; and


(g) which includes coverage for Conveyancing Transactions; and


1.4 A Subscriber may maintain fidelity insurance held through a mutual fund by paying a levy

or contribution rather than an annual insurance premium. The insurance must otherwise

comply with Insurance Rule 1.2.

2 Identity Agent insurance

2.1 Each Identity Agent must maintain professional indemnity insurance:

(a) which specifically names the Identity Agent as being insured; and





(f) which includes coverage for verification of identity for the purposes of these


(g) the terms of which do not limit compliance with Insurance Rules 2.1(a) to (f).

2.2 Each Identity Agent must maintain fidelity insurance:







acts; and

(g) which includes coverage for verification of identity for the purposes of these



2.3 If an Identity Agent does not comply with Insurance Rules 2.1 and 2.2, the Identity Agent

must maintain professional indemnity insurance:








acts; and

(g) which includes coverage for verification of identity for the purposes of these



2.4 An Identity Agent may maintain fidelity insurance held through a mutual fund by paying a

levy or contribution rather than an annual insurance premium. The insurance must

otherwise comply with Insurance Rule 2.2.

3 Self-insuring Subscribers and Identity Agents

Despite Insurance Rules 1 and 2, the following Persons need not take out any insurance

to become or remain a Subscriber or an Identity Agent:

(a) an ADI; or

(b) the Crown in right of the Commonwealth, a State or a Territory.

4 Deemed compliance with these Insurance Rules

4.1 The following are deemed to comply with Insurance Rules 1 and 2:

(a) an Australian Legal Practitioner or a Law Practice who holds or is covered by

professional indemnity insurance and either holds fidelity insurance or contributes to,

or on whose behalf a contribution is made to, a fidelity fund operated pursuant to

legislative requirements; and

(b) a Licensed Conveyancer who holds or is covered by professional indemnity

insurance and either holds fidelity insurance or contributes to, or on whose behalf a

contribution is made to, a fidelity fund operated pursuant to legislative requirements.

4.2 A Mortgage Broker, when acting as agent of a mortgagee for the purposes of verifying the

identity of a mortgagor, is deemed to comply with Insurance Rule 2 if:

(a) pursuant to legislative requirements, either it holds or is covered by:

(i) professional indemnity insurance and fidelity insurance, or

(ii) professional indemnity insurance which provides cover for third party claims

arising from dishonest and fraudulent acts, and

(b) that insurance covers the verification of identity.


4.3 A Local Government Organisation is deemed to comply with Insurance Rule 1 if pursuant

to legislative requirements, either it holds or is covered by:

(a) professional indemnity insurance and fidelity insurance, or

(b) professional indemnity insurance which provides cover for third party claims arising

from dishonest and fraudulent acts.

5 Compliance

The Subscriber or an Identity Agent must comply with any requirements set by its insurer.

6 Proof of insurance

The Subscriber must provide evidence of insurance to the ELNO as required by the

ELNO.


SCHEDULE 7 – SUSPENSION EVENTS, TERMINATION EVENTS AND SUSPENSION AND TERMINATION PROCEDURE

1 Suspension Events

The following are Suspension Events:

(a) the Registrar knows or has reasonable grounds to suspect that the Subscriber:

(i) is in material breach of any of the Subscriber’s obligations under the

Participation Rules; or

(ii) has or may have acted fraudulently in a way which may impact on a

Conveyancing Transaction; or

(iii) has or may have acted negligently in a way which may impact on a


(iv) poses a threat to the operation, security, integrity or stability of the ELN; or

(v) has otherwise engaged in conduct contrary to the interests of other

Subscribers or the Registrar, which may impact on a Conveyancing

Transaction; or

(b) the Subscriber’s purported payment of any Land Registry Fees is unpaid or

dishonoured and the Subscriber fails to remedy the non-payment promptly; or

(c) the Subscriber fails, without reasonable excuse, to comply with a notice served

under the Compliance Examination Procedure; or

(d) the Subscriber fails, without reasonable excuse, to produce Documents within a time

specified in a written request from the Registrar; or

(e) the Subscriber fails, without reasonable excuse, to comply with a written direction of

the Registrar given to the Subscriber or to a class of Subscribers to which the

Subscriber belongs.

2 Termination Events

The following are Termination Events:

(a) the Registrar knows or has reasonable grounds to believe that the Subscriber:

(i) is in material breach of any of the Subscriber’s obligations under the


(ii) has or may have acted fraudulently in a way which may impact on a



(iii) has or may have acted negligently in a way which may impact on a


(iv) poses a threat to the operation, security, integrity or stability of the ELN; or

(v) has otherwise engaged in conduct contrary to the interests of other

Subscribers or the Registrar, which may impact on a Conveyancing

Transaction; or

(b) the Subscriber is subject to an order or directions of a court, tribunal, professional

regulator or disciplinary body, which may impact on a Conveyancing Transaction; or

(c) the Subscriber is not reinstated within a reasonable time following a suspension of

the Subscriber.

3 Suspension and Termination Procedure

3.1 Show Cause Notice procedure

(a) Subject to paragraph 3.2, the Registrar may suspend or terminate, or direct an

ELNO to suspend or terminate, the Subscriber only if the Registrar first gives the

Subscriber a “Show Cause Notice”. A “Show Cause Notice” must:

(i) be in writing; and

(ii) request the Subscriber to show cause, within 15 Business Days of the date of

the Show Cause Notice, why the Subscriber should not be suspended or

terminated, as the case may be; and

(iii) set out in detail the Registrar’s reasons for issuing the request.

(b) After the expiry of the 15 Business Days from the date of the Show Cause Notice,

the Registrar, after considering any further information or steps taken by the

Subscriber, must, within a reasonable time, determine whether to suspend or

terminate, or direct an ELNO to suspend or terminate, the Subscriber.

3.2 Urgent decisions to suspend or terminate

(a) If the Registrar becomes aware that a Suspension Event or Termination Event has

or may have occurred in respect of the Subscriber and believes that it is necessary

to take urgent action to protect the operation, security, integrity or stability of the

ELN, the Registrar may immediately suspend or terminate, or direct an ELNO to

immediately suspend or terminate, the Subscriber without first providing a Show

Cause Notice under paragraph 3.1.

(b) However, the Registrar must then issue to the Subscriber a “Show Cause Notice”

within 15 Business Days. A “Show Cause Notice” must:


(i) be in writing; and

(ii) request the Subscriber to show cause, within 15 Business Days of the date of

the Show Cause Notice, why the Subscriber should be reinstated; and

(iii) specify the reasons for the suspension or termination.

(c) If the Registrar does not issue a Show Cause Notice in accordance with this

paragraph 3.2 within 15 Business Days of a suspension or termination taking effect

following a determination by the Registrar to suspend or terminate the Subscriber

under this paragraph 3.2, the Registrar must reinstate, or direct the ELNO to

reinstate, the Subscriber.

(d) After the expiry of the 15 Business Days following the date of the Show Cause

Notice under this paragraph 3.2, the Registrar, after considering any further

information or steps taken by the Subscriber must, within a reasonable time,

determine whether to reinstate the Subscriber or direct the ELNO to reinstate the

Subscriber.

3.3 Notice of suspension and termination decisions

After making a final determination under paragraph 3.1 or paragraph 3.2, the Registrar

must notify the Subscriber promptly of the determination. If the determination:

(a) is made under paragraph 3.1, the notice must specify the reasons for the

determination and, except where the Registrar directs the ELNO to suspend or

terminate, the time and date the suspension or termination is to take effect; or

(b) is made under paragraph 3.2, the notice must specify the reasons for the

determination and, except where the Registrar directs the ELNO to suspend or

terminate, the time and date the suspension or termination took effect.

3.4 Suspension or termination - reinstatement

If the Registrar suspends or terminates the Subscriber, or directs an ELNO to suspend or

terminate the Subscriber, the Registrar may reinstate, or direct an ELNO to reinstate, the

Subscriber at any time if the Registrar determines that the Subscriber’s access to the ELN

does not pose a threat to the operation, security, integrity or stability of the ELN.

3.5 Registrar’s determinations

A determination by the Registrar to suspend or terminate a Subscriber, or to direct an

ELNO to suspend or terminate a Subscriber, does not affect any other determination the

Registrar has made previously or may make subsequently.


SCHEDULE 8 – VERIFICATION OF IDENTITY STANDARD

1 Definitions

In this Verification of Identity Standard capitalised terms have the meanings set out below:

ADI (authorised deposit-taking institution) has the meaning given to it in the Banking Act

1959 (Cth).

Adult has the meaning given to it in the ECNL.

Application Law has the meaning given to it in the ECNL.

Australian Legal Practitioner has the meaning given to it in the relevant legislation of

the Jurisdiction in which the land the subject of the Conveyancing Transaction is situated

and in South Australia is a legal practitioner for the purposes of the Legal Practitioners Act

1981 (SA).

Australian Passport means a passport issued by the Australian Commonwealth

government.

Bank Manager means a Person appointed to be in charge of the head office or any

branch office of an ADI carrying on business in Australia under the Banking Act 1959

(Cth).

Category means the categories of identification Documents set out in the table in this

Verification of Identity Standard paragraph 3, as amended from time to time.

Commonwealth has the meaning given to it in the ECNL.

Community Leader means, in relation to an Aboriginal or Torres Strait Islander

community:

(a) a Person who is recognised by the members of the community to be a community

elder; or

(b) if there is an Aboriginal council that represents the community, an elected member

of the council; or

(c) a member, or a member of staff, of a Torres Strait Regional Authority established

under the Aboriginal and Torres Strait Islander Commission Act 2005 (Cth); or

(d) a member of the board, or a member of staff, of Indigenous Business Australia

established under the Aboriginal and Torres Strait Islander Commission Act 2005

(Cth); or

(e) a member of the board, or a member of staff, of an Indigenous Land Corporation

established under the Aboriginal and Torres Strait Islander Commission Act 2005

(Cth); or


(f) a member, or a member of staff, of an Aboriginal Land Council established

under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Court Officer means a judge, master, magistrate, registrar, clerk or the chief executive

officer of any court in Australia.

Doctor means a Person who is registered under any Commonwealth, State or Territory

law as a practitioner in the medical profession.


Jurisdiction by the Application Law, as amended from time to time.

Identifier Declaration means the declaration set out in Verification of Identity Standard

paragraph 4.

Identity Declarant means a Person providing an Identifier Declaration.

Identity Verifier means the Person conducting the verification of identity in accordance

with this Verification of Identity Standard.

Individual has the meaning given to it in the ECNL.

Land Council Officeholder means a chairperson or deputy chairperson (however

described) of an Australian land council or land and sea council established under any

Commonwealth, State or Territory law.

Land Titles Legislation has the meaning given to it in the ECNL.


legislation of the Jurisdiction in which the land the subject of the Conveyancing

Transaction is situated and in Western Australia is a real estate settlement agent for the

purposes of the Settlement Agents Act 1981 (WA).

Local Government Officeholder means a chief executive officer or deputy chief

executive officer (however described) of a Local Government Organisation.

Local Government Organisation means a local government council (however described)

established under any Commonwealth, State or Territory Law.

Nurse means a Person registered under any Commonwealth, State or Territory law as a

practitioner in the nursing and midwifery profession.


Person Being Identified means the Person whose identity is being verified.

Photo Card is a card issued by the Commonwealth or any State or Territory showing a

photograph of the holder and enabling the holder to evidence their age and/or their identity.

Police Officer means an officer of any Commonwealth, State or Territory police service.


Priority/Settlement Notice has the meaning given to it in the Land Titles Legislation of the

Jurisdiction in which the land the subject of the Conveyancing Transaction is situated.

Public Servant means an employee or officer of the Commonwealth, a State or a

Territory.

Record has the meaning given to it in the ECNL.

Relative means a Person’s spouse or domestic partner or a child, grandchild, sibling,

parent or grandparent of the Person or of the Person’s spouse or domestic partner.

State means New South Wales, Queensland, South Australia, Tasmania, Victoria and

Western Australia.

Statutory Declaration has the meaning given to it in the ECNL.

Territory means the Australian Capital Territory and the Northern Territory of Australia.

Verification of Identity Standard means this verification of identity standard, as

amended from time to time.

2 Face-to-face regime

2.1 The verification of identity must be conducted during a face-to-face in-person interview

between the Identity Verifier and the Person Being Identified.

2.2 Where Documents containing photographs are produced by the Person Being Identified,

the Identity Verifier must be satisfied that the Person Being Identified is a reasonable

likeness (for example the shape of his or her mouth, nose, eyes and the position of his or

her cheek bones) to the Person depicted in those photographs.

3 Categories of identification Documents and evidence retention

3.1 At the face-to-face in-person interview described in paragraph 2.1, the Identity Verifier

must ensure that the Person Being Identified produces original Documents in one of the

Categories in the following table, starting with Category 1.

3.2 The Identity Verifier must be reasonably satisfied that a prior Category cannot be met

before using a subsequent Category.

3.3 The Identity Verifier must:

(a) sight the originals of all Documents from Categories 1, 2, 3, 4, 5 or 6 produced by

the Person Being Identified; and

(b) retain copies of all Documents produced by the Person Being Identified and any

Identity Declarant.


3.4 The Documents produced must be current, except for an expired Australian Passport

which has not been cancelled and was current within the preceding 2 years.

Category Minimum Document Requirements

For Persons who are Australian citizens or residents:

1

Australian Passport or foreign passport plus Australian drivers licence or Photo Card

plus change of name or marriage certificate if necessary

2

Australian Passport or foreign passport plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card


3

Australian drivers licence or Photo Card plus full birth certificate or citizenship certificate or descent certificate

plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary

4

(a) Australian Passport or foreign passport

plus another form of government issued photographic identity Document plus change of name or marriage certificate if necessary

(b) Australian Passport or foreign passport

plus full birth certificate plus another form of government issued identity Document


5

(a) Identifier Declaration plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card

plus change of name or marriage certificate if necessary.

(b) Identifier Declaration by a Person specified in Verification of Identity

Standard paragraph 4.4(e)

plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary.

Note: Refer to Verification of Identity Standard paragraph 4.

For Persons who are not Australian citizens or residents:

6

(a) Foreign passport plus another form of government issued photographic identity Document


(b) Foreign passport

plus full birth certificate

plus another form of government issued identity Document plus change of name or marriage certificate if necessary.


4 The Identifier Declaration

4.1 Where the requirements of:

(a) Categories 1 to 4 cannot be met, Category 5(a) may be used; and

(b) Category 5(a) cannot be met, Category 5(b) may be used,

including the provision of an Identifier Declaration in accordance with this paragraph.

4.2 The Identity Verifier must ensure that both the Person Being Identified and the Identity

Declarant attend the same face-to-face in-person interview described in paragraph 2.1.

4.3 The Identity Verifier must verify the identity of the Identity Declarant in accordance with

this Verification of Identity Standard except that the Identity Verifier cannot utilise Category

5.

4.4 The Identity Verifier must undertake reasonable enquiries to satisfy themselves that the

Identity Declarant is:

(a) an Adult; and

(b) an Individual who has known the Person Being Identified for more than 12 months;

and

(c) not a Relative of the Person Being Identified; and

(d) not a party to the Conveyancing Transaction(s) the Person Being Identified has or is

entering into; and

(e) where Category 5(b) is used, an Australian Legal Practitioner, a Bank Manager,

Community Leader, Court Officer, Doctor, Land Council Officeholder, Licensed

Conveyancer, Local Government Officeholder, Nurse, Police Officer or Public

Servant.

4.5 The Identity Verifier must ensure that the Identity Declarant provides a Statutory

Declaration detailing the following:

(a) the Identity Declarant’s name and address; and

(b) the Identity Declarant’s occupation; and

(c) the Identity Declarant’s date of birth; and

(d) the nature of the Identity Declarant’s relationship with the Person Being Identified;

and

(e) that the Identity Declarant is not a relative of the Person Being Identified; and


(f) that the Identity Declarant is not a party to the Conveyancing Transaction(s) the

Person Being Identified has or is entering into; and

(g) the length of time that the Identity Declarant has known the Person Being Identified;

and

(h) that to the Identity Declarant’s knowledge, information and belief the Person Being

Identified is who they purport to be; and

(i) where Category 5(b) is used, that the Identity Declarant is an Australian Legal

Practitioner, a Bank Manager, Community Leader, Court Officer, Doctor, Land

Council Officeholder, Licensed Conveyancer, Local Government Officeholder,

Nurse, Police Officer or Public Servant .

5 Body Corporate

The Identity Verifier must:

(a) confirm the existence and identity of the body corporate by conducting a search of

the Records of the Australian Securities and Investments Commission or other

regulatory body with whom the body corporate is required to be registered; and

(b) take reasonable steps to establish who is authorised to sign or witness the affixing

of the seal on behalf of the body corporate; and

(c) verify the identity of the Individual or Individuals signing or witnessing the affixing

o f the seal on behalf of the body corporate in accordance with the Verification of

Identity Standard.

[Note: body corporate includes an incorporated association.]

6 Individual as attorney


(a) confirm from the [registered] power of attorney the details of the attorney and the

donor; and

(b) take reasonable steps to establish that the Conveyancing Transaction(s) is

authorised by the power of attorney; and

(c) verify the identity of the attorney in accordance with the Verification of Identity

Standard.

7 Body Corporate as attorney


(a) confirm from the [registered] power of attorney the details of the attorney and the

donor; and


(b) take reasonable steps to establish that the Conveyancing Transaction(s) is

authorised by the power of attorney; and

(c) comply with Verification of Identity Standard paragraph 5.

[Note: body corporate includes an incorporated association.]

8 (Deleted)

9 (Deleted)

10 Further checks

The Identity Verifier must undertake further steps to verify the identity of the Person Being

Identified and/or the Identity Declarant where:

(a) the Identity Verifier knows or ought reasonably to know that:

(i) any identity Document produced by the Person Being Identified and/or the

Identity Declarant is not genuine; or


Identified and/or the Identity Declarant is not a reasonable likeness of the


(iii) the Person Being Identified and/or the Identity Declarant does not appear to

be the Person to which the identity Document(s) relate; or



SCHEDULE 9 – IDENTITY AGENT CERTIFICATION

I, [full name of the Person undertaking the verification of identity], of [full name of Identity Agent] of

[address of the Identity Agent] being a [occupation of the Identity Agent] and having been directed

to use the Verification of Identity Standard by [Subscriber name] hereby certify that:

(a) the identification relates to [full name of the Person Being Identified or the Identity

Declarant]; and

(b) the identification was carried out on [date]; and

(c) the original identification Documents as listed below were produced to me and

copies of these Documents signed, dated and endorsed by me as true copies are

attached to this certification; and

(d) the verification of identity was conducted in accordance with the Verification of

Identity Standard[; and

(e) I witnessed [full name of the Person Being Identified] execute the completed Client

Authorisation or grant the mortgage].*

…………………………….. ..……….………………………

Date: Signature of Identity Agent

List of identification Documents produced (see (c) above):

Description of identity Documents produced and endorsed

E.g. Australian Passport

*Delete where Identity Agent not requested to witness or is not legally entitled to witness the

document.

Troubleshooting VOI

VOI – why, when, how | RACV Club | 2 March 2016 Page 1 of 8

Client unable to attend office to be identified

Consider registering to use Australia Post, ZipID, IDSecure and/or IDfy * InfoTrack.

Remember to check the documents received from an identification agent to ensure they

are legible and do not contain errors. For example, the documents are not complete

because a photo of the client was not provided by the identification agent.

Where any errors are discovered seek an explanation from the identification agent. In

some circumstances it may be necessary for the client to be identified for a second time.

Identity documents match up but the client has an alias. For

example, their name is Thomas but they are known to your office

as Tom.

Prepare a statutory declaration to be signed by the client stating their current correct

name and also listing the other name(s) they are known as. Keep this declaration on your

file.

See attached sample.

Discrepancies in client’s name as disclosed in the identity

documents

Ask the client for:

• an explanation as the reason may be cultural or they may have changed their name

by marriage

• documents to back up their explanation such as a marriage and/or change of name

certificate.

Where they cannot satisfactorily explain the difference you may need to request that they

apply to have the identity document(s) re*issued with the name difference corrected.

For example, their passport refers to John Smith and their drivers licence John B. Smith.

John should be told to obtain a new drivers licence which is consistent with the name on

their passport. Only once the amended document has been provided are you able to

verify their identity.

Requested by a lender / mortgagee to verify identity a

mortgagor pursuant to section 87A of the Transfer of Land Act

1958 (Vic) when providing a solicitor’s certificate

S.87A(1) relevantly provides that:

At the time of execution of a mortgage or a variation of mortgage, a mortgagee

must take reasonable steps to verify the authority and identity of a mortgagor …

Where the practitioner for the mortgagor undertakes an authority and identity check at

the request of a mortgagee it is arguable that they are acting as an agent for the

mortgagee. This would give rise to a conflict.

LPLC recommends that a practitioner who is asked to verify authority and identity of the

mortgagor notifies the mortgagee in writing that they are unable to so as this would mean


they are acting as agent for the mortgagee which gives rise to a conflict. The mortgagee

should be told to undertake its own verification.

Identity documents in another language

The documents will need to be translated. LPLC recommends using a translator

accredited by National Accreditation Authority for Translators and Interpreters Ltd (NAATI).

Unable to verify identity of client

This may occur for any number of reasons including:

• the client looks different to their photo

• the documents do not appear genuine

• the client has no identification documents

• the client is pretending to be someone else

According to the recent publication by Marsh Fraud and Scams – How to Protect Your

Business awareness of the threat of frauds and scams is the key to minimising risk.

Marsh also refers to criminals engaging in “social engineering’ or more commonly known

as “confidence tricks” to overcome risk controls. One example given is where a criminal

calls a law firm with some kind of urgent problem and requires immediate network access.

These criminals may appeal to vanity, authority and greed but more commonly simply rely

on people’s natural helpfulness.

How much should I charge to VOI a client?

Charge a fee which reflects the risk as well as covers the necessary steps and precautions.

For example, the process to identify a long standing client would probably be cheaper

comparted to a client who walks in off the street.


Example of fraud involving a practitioner

You have been acting for a foreign investor selling real estate in Melbourne. Settlement is

due 30 June, one of your busiest times in the office. On 29 June you are contacted by

someone claiming to be from the firm’s bank. This person tells you the client’s funds are at

risk of being stolen and that you should immediately call a number which they provide to

you and to follow the directions of the person you contact. You are told by this person

someone will contact you tomorrow about transferring the funds to a safe account.

Compare this scenario to a recent case in the UK (search BBC/ Legal career ‘hit by vishing

scam’) where criminals posed as bank staff and told a lawyer funds in her firm’s bank

account were at risk. The practitioner transferred the funds into a new account which

were quickly transferred by the fraudsters to other accounts and withdrawn.

If you are contacted by someone claiming to be from your bank and have caller ID keep

a written record of the number of the caller.

Ask the caller to give you their contact details.

Before doing as directed by the caller contact the branch of your bank where your

account was established and ask them whether they can verify the directions you have

been given.

If you receive an email which contains directions for transferring funds, even where the

email is from the client, always telephone the client to verify the information. For more

information see the LPLC blog Identify your client and ensure they are instructing you.

Where you are unable to verify the identity of a client the client may be attempting to

commit a fraud. You need to be strategic and careful when dealing with a client whose

identity is in doubt. Having a written office policy is one way of ensuring the situation is

handled properly.

Consider the following scenarios and our comments which may help you to develop an

office policy to deal with this situation.

First scenario

You have received via post original and/or copy identity documents from a client that you

doubt are genuine.

Check any Australian*issued identifying credentials such as birth certificates, driver

licences and passports using the Commonwealth Government’s Document Verification

Service (DVS). The DVS will verify whether the number of the identity document is valid or

invalid.

If the number of the identity document is invalid:

• you are not obliged to notify the client of your suspicions but may wish to notify the

client that you are unable to act for them

• consider the need to contact your local police station to inform them that you are in

possession of identity documents which you suspect may be false.

To assist you to in making a decision about whether to contact the police refer to the

attached four rulings issued by the Law Institute Ethics committee. In summary the LIV

Ethics committee view seems to be that a practitioner is not breaching the conduct

rules by notifying the police of their suspicions.


Where you decide to contact the police ask the police what they would like you to

do. They may require that you complete a fraud report form. This form and more

information can be found on Victoria Police’s Crime Prevention and Community

Safety>Fraud>Reporting fraud page.

• retain a copy of the documents. Where the client requires you to return any

documents you may do so unless told otherwise by the police.

Second scenario

• A new client attends your office and instructs you to act for them in the sale of a piece

of real estate. The client gives you the certificate of title and a discharge of mortgage.

• You send the client to an identity agent to verify their identity but the agent informs you

they were unable to as the client does not look like the person in the photo identity

documents.

• Shortly after receiving this call the client shows up at your office demanding you give

them back the certificate of title.

Don’t panic but be aware that a client may be upset. It may be that you have caught

them out and they are in a panic. Always be alert to the possibility that the client may

become violent. They may also demand that you give back any documents they have

given you.

Before confronting the client inform someone else in the office what has occurred

preferably a principal and/or office manager, and have someone accompany you when

you see the client.

Ask the client to provide you with their identity documents and explain that you need to

verify their identity to enable you to continue to act.

Where the client’s identity remains in doubt you are not obliged to return the title(s) to the

client.

If the client refuses to co*operate and/or demands the return of the title(s) ask the client to

leave your premises. If they refuse to go tell them they are trespassing and should leave

immediately or you will have no alternative than to contact the police.

See our comments above about contacting the police. You should also notify the Land

Registry.


Sample name declaration

Statutory declaration

Re: Verification of identity

I,

of

1. My name as shown on my ……………………….…[insert identity document, eg.

passport / birth certificate]

is ……………………………

2. I am also commonly known as ……………………………….……………………………….

4. My true and correct name is ……………………………….……………………………….

I acknowledge that this declaration is true and correct and I make it in the belief that a

person making a false declaration is liable to the penalties of perjury.

Declared at

on the ……………….day of ………………20…..

)

)

)………………………………………

)

Before me: ……………………………….……………………………….…………………………….

Witness to print full name, address and qualification:

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….


Ethics rulings

Ruling Number: R4676

Category: Checking Identity * Release of documents

Area of Law: Legal practice management

Ruling Date: 18 Nov 2010

Publication Date: 4 May 2011

Background

A law firm is entitled to request any type of identification it wishes (within reason) to ensure

that the client authority to release documents is genuine. However, it is not necessary to

view 100 points of identification where the request comes from another legal practitioner.

Firm X sent to Firm Y an authority from its client to hand over documents belonging to her

and her late husband. Firm Y declined to hand over those documents until Firm X provided

100 points of identification for the client.

Firm X requested guidance from the Ethics Committee in relation to the identification

requirements required by Firm Y before releasing deeds from its strongroom. In addition,

Firm X asked whether it was necessary to provide 100 points of identification where the

requesting entity was a law practice holding professional indemnity insurance.

Firm Y advised that it had formulated a policy within the firm for dealing with requests for

deeds from its strongroom. Firm Y advised that simply relying on a law firm's letterhead was

no longer enough, given the increase in identity fraud. It had therefore researched

identification procedures used by other entities, such as banks, and adopted a similar 100

points of identity requirements.

Firm Y also sought guidance from the Ethics Committee, particularly in relation to the types

of identification requirements it should request when the following three scenarios arise:

• where the former client requests documents/deeds (and there is no lawyer involved);

• where the former client's request comes to the firm via the client's lawyer;

• where an agent of the former client (who is not legally represented) requests the

documents (for instance, on the death of the former client).

Ruling

In the opinion of the Ethics Committee and on the information presented the practitioner

should comply with the original written authority of the former client unless the practitioner

has reasonable grounds to doubt the authenticity of that authority.


Category: Privilege/confidentiality * Crime/fraud

Area of Law: Criminal

Ruling Date: 1 Mar 1996

Publication Date: 1 Oct 2004

Background

A legal firm requested the Ethics Committee to determine whether the Firm was required

to disclose the identity of their client to the Police. The Police suspected the client of

committing a criminal offence.


Ruling

In the opinion of the Ethics Committee and on the information provided:

1. That while the identity of the client is confidential, if ordered by a Court to disclose

the identity of the client, the Firm would be required to disclose the same.


Category: Privilege/confidentiality * Crime/fraud


Ruling Date: 1 Feb 2004

Publication Date: 1 Jun 2004

Background

A solicitor considered he might have information about a possible murder of a woman by

her husband several years ago. He sought a ruling on whether he could tell the police of

his suspicions. The solicitor had never acted for either the husband or wife although he

employed the wife at one time and acted as mediator in a commercial dispute involving

the husband.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. If any information was not obtained in the course of a retainer, the solicitor was not

governed by fiduciary duties of confidentiality or by r3 of the Professional Conduct and

Practice Rules 2003. The practitioner must make a decision based on the same ethical

principles governing all members of society, keeping in mind his additional obligation

not to bring the profession into disrepute.

2. In all the disclosed circumstances, the Ethics Committee recommends that the

practitioner should disclose any relevant information to the police.


Category: Trust account * Crime/fraud * Solicitor as witness


Ruling Date: 1 Mar 2004

Publication Date: 1 Jul 2004

Background

A practitioner may not be prevented from representing a client in one matter despite

being a potential witness in a separate matter. A firm received trust funds from an

incarcerated client whom they represented in his personal injury matter. The money came

from another prisoner who owed funds to the client. This appeared to be confirmed by

letters signed by the second inmate. The second inmate subsequently advised the firm by

telephone that the client had obtained the funds from him by deception. The second

inmate had expected the firm to provide the funds to his mother overseas. Funds

remained in the trust account pending separate criminal and professional standards

investigations. A warrant over the file was exercised and the firm was asked to provide a

statement to police.

The firm asked the Ethics Committee to advise:


1. whether it could continue to act in the personal injury matter and, if so,

2. whether that position changed if criminal charges were laid and the firm was

called to give evidence against their client.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. The Ethics Committee did not consider there was a conflict of interest in these

circumstances and accordingly has no issue with the firm continuing to act for the

client in his personal injury matter.

2. The Ethics Committee did not anticipate that this position would necessarily change in

the event of criminal charges being laid against the client and the firm’s being

required to give evidence, but the issue should be revisited in the light of the

circumstances at such time.

Contact details

Law Institute of Victoria |Ethics Committee of Law Institute of Victoria Ltd

Legal Ethics Manager | Phone: 03 9607 9336 |Email: [email protected]

1 ARNECC MPR Version 4 Guidance Note #1: Client Authorisation – Updated May 2017

MODEL PARTICIPATION RULES GUIDANCE NOTE

CLIENT AUTHORISATION

1 INTRODUCTION

This guidance note aligns with Version 4 of the Model Participation Rules and explains:

• what a Client Authorisation is;

• why a Client Authorisation is required;

• when a Client Authorisation is required; and

• how a Client Authorisation is completed.

This guide does not constitute legal advice nor does it replace prudent conveyancing

practice. Nothing written in this guide overrides the Electronic Conveyancing

National Law, Participation Rules, any other relevant legislation or Registrar’s

Prescribed Requirements.

2 WHAT IS A CLIENT AUTHORISATION?

A Client Authorisation is a document that enables a party to a transaction (the client) to

authorise a conveyancer or lawyer to act on their behalf in that transaction. While the Client

Authorisation empowers a Representative to act for a client in a similar way to a power of

attorney, legislation specifically states that the Client Authorisation is NOT a power of

attorney. Accordingly a Client Authorisation does not need to comply with any legislative

requirements relating to powers of attorney or to be registered in those jurisdictions where

registration of powers of attorney is required.

While acting on behalf of the client under a Client Authorisation, the conveyancer or lawyer

can:

• sign registry instruments or other documents;

• present registry instruments or other documents for lodgment with the Land Registry;

and

• authorise or complete any associated financial aspects of the transaction.

1


The Client Authorisation clearly sets out the details of the authorisation and the completed

form must be retained as supporting evidence of authority for the transaction.

3 WHY IS A CLIENT AUTHORISATION REQUIRED?

In electronic conveyancing a client will not be able to access the electronic lodgment

network to sign a registry instrument or document.

A Client Authorisation is required to give the client’s conveyancer or lawyer authority to sign

the registry instrument or document on the client’s behalf.

4 WHEN IS A CLIENT AUTHORISATION REQUIRED?

A Client Authorisation is required whenever a conveyancer or lawyer represents a client in

a transaction in an electronic lodgment network, except where the conveyancer or lawyer

is preparing and lodging a caveat or, in those jurisdictions that have them, a priority notice,

extension of priority notice, withdrawal of priority notice, settlement notice or withdrawal of

settlement notice.

For a caveat priority notice, extension of priority notice, withdrawal of priority notice,

settlement notice or withdrawal of settlement notice a Client Authorisation is optional as the

purpose of these documents is to provide notification of an interest. Whether a Client

Authorisation will be obtained or not is dependent on the circumstances of the individual

transaction.

For example, it may not be possible to obtain a Client Authorisation prior to processing a

caveat. However, if it is a purchaser’s caveat it may be dealt with as part of the transaction

that is covered in a Client Authorisation.

5 HOW IS A CLIENT AUTHORISATION COMPLETED?

A Client Authorisation is completed by the client and the conveyancer or lawyer. Once

complete, it is signed by the client or their attorney or agent as a granting of that

authorisation.

The conveyancer or lawyer (or their agent) also needs to sign the form in order to certify

that reasonable steps were taken to ensure the form was signed by the client or by the

client’s attorney or agent. If the Client Authorisation is signed by the conveyancer or

lawyer’s agent, the conveyancer or lawyer does not also need to sign the Client

Authorisation.

A properly completed Client Authorisation form is one that is filled in, dated, and signed by

the Client and the Representative or the Client and the Representative Agent.


Ideally, the verification of identity of the client would be completed at the time the client signs

the Client Authorisation. Refer to MPR Guidance Note #2: Verification of Identity. However,

there may be instances where these processes are not able to occur simultaneously and in

these instances the conveyancer or lawyer needs to take reasonable steps to ensure that

the Client Authorisation is being signed by their client or by the client’s attorney or agent.

This may be done by referencing the verification of identity supporting documentation and

ensuring it is the same person signing.

Authorisation can be given:

• for a specific transaction or transactions, in which case the transactions should be

listed on the Client Authorisation form; or

• as a standing authority, in which case the categories of transaction should be ticked

on the Client Authorisation form, either until a specified date or until it is revoked; or

• for a batch of transactions, in which case details of the transactions the batch authority

is intended to cover should be attached.

A Client Authorisation must be a standalone form and substantially comply with the form in

Schedule 4 of the Model Participation Rules.

A Client Authorisation Smartform is available on the ARNECC website at

https://www.arnecc.gov.au/publications/forms. This Smartform has been created for ease

of use and has the same content as the Client Authorisation form in the Participation Rules.

A printable version of the form is also available and can be completed manually. For

readability the Client Authorisation form should be completed in Arial font with a minimum

font size of 10 point. If the form is completed manually blue or black ink should be used.

Examples of completed Client Authorisation forms are annexed to this guidance note.

6 FREQUENTLY ASKED QUESTIONS

Q1: Can I design my own version of the Client Authorisation?

A1: No. The Client Authorisation must be in the form required by the Participation Rules.

This is to ensure that everyone is participating in a conveyancing transaction on the

same terms. Slight variations in the format or style are permitted but there must be

no change to the words.

Q2: Where can I get a Client Authorisation form?

A2: A Client Authorisation form is available on the ARNECC website at

https://www.arnecc.gov.au/publications/forms.

https://www.arnecc.gov.au/publications/forms

https://www.arnecc.gov.au/publications/forms


Q3: If I am a conveyancer or lawyer and I use an agent to verify the identity of my

client, do I need to sign the Client Authorisation as well as my agent?

A3: No. The form is signed either by the conveyancer or lawyer or their agent in order to

certify that reasonable steps were taken to ensure the form was signed by the client

or by the client’s attorney or agent.

When a conveyancer or lawyer uses an agent to verify the identity of their client and

the Client Authorisation is signed by the client at the same time only the agent needs

to sign the Client Authorisation form.

Q4: Do I need to complete a Client Authorisation if I am a sole trader conveyancer

or lawyer and I am representing myself?

A4: No. If you are a sole trader conveyancer or lawyer, you are allowed to represent

yourself in an electronic lodgment network without signing a Client Authorisation.

Q5: If I am a financial institution acting on my own behalf, do I need a Client

Authorisation to lodge a mortgage or discharge a mortgage over my customer’s

property?

A5: No. When lodging a mortgage or discharge of mortgage you are not representing

your customer.

Q6: Does the Client Authorisation take the place of the usual retainer agreement or

authority to act entered into between my client and me?

A6: No. The Client Authorisation is required in addition to the usual retainer agreement

or authority to act. The usual retainer agreement or authority to act cannot be

inconsistent with the Client Authorisation.

Q7: Can I incorporate the Client Authorisation in my usual retainer agreement or

authority to act?

A7: No. As the Client Authorisation is a prescribed form and may be required for evidence

it must be a separate document.

Q8: Can a Client Authorisation be signed overseas?

A8: Yes. An overseas client is to be treated the same as a client in Australia and therefore

a Client Authorisation form can be signed overseas.

Q9: Does “substantial compliance” mean I can vary the terms of the client

authorisation?

A9: No. Only superficial changes are permitted. Subscribers are not able to vary the terms

of the Client Authorisation.


Q10: Does a batch authority need to list individual properties or can it reference a

subdivision?

A10: It is up to the Client and the Representative to agree how best to describe what is

covered by a batch authority so that there is no ambiguity. For example, if using the

PDF form, particular transaction types could be ticked on the front page of the Client

Authorisation form and details of the land affected annexed. Alternatively, if using the

Client Authorisation Smartform, all the details must be set out in the attachment.

Q11: How do Representative Agents sign the Client Authorisation form when the

Clients listed in the Client Authorisation form have their identity verified at a

different time by different people?

A11: If the Clients listed in the Client Authorisation form are being verified at different times

by different people, then two Client Authorisation forms should be prepared.

Q12: Can a Representative destroy a paper Client Authorisation form if they have an

electronic copy of it?

A12: The Client Authorisation and any evidence supporting the Client Authorisation can be

stored electronically. However, the medium and means in which a Client

Authorisation and any evidence supporting the Client Authorisation are to be retained

is to be determined by the Subscriber, in light of the possible need to produce those

documents as evidence to a Court. Whichever medium is utilised the Client

Authorisation and any evidence supporting the Client Authorisation should be safely

and securely stored. A Client Authorisation and any evidence supporting the Client

Authorisation is required to be kept for 7 years from lodgment. Refer to MPR

Guidance Note #5: Retention of Evidence.

Q13: Can a Client Authorisation be digitally signed?

A13: There is no requirement in the Electronic Conveyancing National Law and Participation

Rules that the Client Authorisation Form needs to be wet-signed. Therefore it is up to

the Subscriber to determine whether the act of the client digitally signing the Client

Authorisation Form complies with the Electronic Transactions Act relevant to the

jurisdiction in question.

Q14: Do the Representative’s details need to be completed if a Representative Agent

is signing?

A14: Yes, the Representative’s details are required for all Client Authorisations.


Q15: Who needs to have their identity verified and sign the Client Authorisation when

a Subscriber is representing a government agency?

A15: A Subscriber representing a government agency must:

• identify the legal entity entitled to deal in the land in question (this could be a

Minister, the Secretary of a Department, a Director of a Statutory Authority, or a

statutory person as a corporation sole)

• have the Client Authorisation completed in the name of that legal entity

• have the Client Authorisation signed by a person with a written delegation to

deal in land on behalf of that legal entity

• sight and retain a copy of the instrument of delegation held by that person, and

• take reasonable steps to verify the identity of the person signing the Client

Authorisation.

Q16: What is the process for amending the Client Authorisation if we need to make

amendments so that it is consistent with the terms of our service agreements

with panel solicitors?

A16: The Client Authorisation is a prescribed form and must be used in substantially the

same form as that set out in the Model Participation Rules (MPR). Neither the layout

of the form nor its terms can be altered from that prescribed. In addition, its terms

cannot be varied by any other agreement between the parties. The reason for this is

to ensure everyone participating in a conveyancing transaction requiring the use of a

Client Authorisation does so on the same terms.

The form and its terms are reviewed whenever the MPR is reviewed and any proposed

amendments are subjected to industry consultation.

Q17: If financial institutions, as incoming and outgoing mortgagees, haven’t ticked

the “Transfer” box in the Client Authorisation Form does that mean we cannot

act on their behalf in a purchase transaction where they are the incoming

mortgagee?

A17: Rule 6.3(b) of the Participation Rules provides that “a Representative … must…enter

into a Client Authorisation with its Client [ie the incoming and outgoing mortgagee]

before the Subscriber Digitally Signs any Registry Instrument or other electronic

Document…”.

Your client should tick the “MORTGAGE” and "DISCHARGE/RELEASE OF

MORTGAGE" boxes as these are the only documents that they are giving you

authority to Digitally Sign and lodge.


The intention of the reference to “all Documents required to effect a purchase or

sale…” in the definition of “Transfer” is limited to transfer related documents, not

Mortgages.

Q18: For those companies that have in-house lawyers (and those lawyers hold the

necessary insurance requirements), do their own legal work internally and do

not instruct an external law firm or conveyancer, are they classified as self-

represented?

A18: A signed Client Authorisation is required where a Subscriber acts on behalf of a Client.

Where a Lawyer acts for their Subscriber employer and that Subscriber is a participant

in the transaction the Registrar has not specified a requirement for a Client

Authorisation.

Q19: Where we have a client with multiple transactional matters, ie a

developer/builder that buys and sells a lot, does the client sign a Client

Authorisation Form for each individual matter?

A19: You should consider using a Batch Authority or Standing Authority.

Q20: If a company usually signs their documents under Power of Attorney and there

are a number of different Attorney’s, does each and every Attorney need to sign

a Client Authorisation Form each time?

A20: The answer would depend on the provisions in the power of attorney. You should

review the power and make an assessment as to what is required. If a single attorney

can sign documents on behalf of the company, then a single attorney would sign the

Client Authorisation. If the power of attorney requires more than one attorney to sign

on the company's behalf, you would need to comply with the power's requirements.

Q21: What does it mean to have a properly completed Client Authorisation?

A21: The Client Authorisation form must be filled in, dated, and signed by the Client and

the Representative or the Client and the Representative Agent.

__________

CLIENT AUTHORISATION When this form is signed, the Representative is authorised to act for the Client in a Conveyancing Transaction(s).


Representative Reference: BLOGGS-16-4-15

CL

IEN

T D

ET

AIL

S

CLIENT 1 CLIENT 2

NAME FREDERICK BLOGGS FREDA BLOGGS

ACN/ARBN

ADDRESS 11/53 ALBERT ST, BRISBANE 11/53 ALBERT ST, BRISBANE

TR

AN

SA

CT

ION

DE

TA

ILS

AUTHORITY TYPE SPECIFIC AUTHORITY (set out conveyancing transaction details below)

STANDING AUTHORITY ends on revocation or expiration date:___/____/___

(tick relevant conveyancing transaction(s) below)

BATCH AUTHORITY (attach details pf conveyancing transactions)


PROPERTY ADDRESS

11/53 ALBERT ST, BRISBANE 10/100 QUEEN ST, BRISBANE

LAND TITLE REFERENCE(S) (and/or property description)

71011681

LOT 1 ON RP 1569

CONVEYANCING

TRANSACTION(S)


PRIORITY/ SETTLEMENT NOTICE

DISCHARGE/ RELEASE OF MORTGAGE

WITHDRAWAL OF CAVEAT




OTHER OTHER


SALE OF THIS PROPERTY PURCHASE OF THIS PROPERTY

CL

IEN

T A

UT

HO

RIS

AT

ION

AN

D S

IGN

ING


I CERTIFY that: (a) I am the Client or Client Agent; and



I AUTHORISE the Representative to act on my behalf, or where I am a Client Agent to act on behalf of the Client,

in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to: (a) sign Documents on my behalf as required for the Conveyancing Transaction(s); and




Frederick Bloggs DATE 16/4/15

SIG

N H

ER

E

Freda Bloggs DATE 16/4/15

SIG

N H

ER

E

CLIENT/CLIENT AGENT NAME: FREDERICK BLOGGS

CAPACITY:

AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable)

NAME: DATE:

CLIENT/CLIENT AGENT NAME: FREDA BLOGGS

CAPACITY:


NAME: DATE:

RE

PR

ES

EN

TA

TIV

E D

ET

AIL

S A

ND

SIG

NIN


NAME Lamb Lawyers

ACN/ARBN 101 469 147

ADDRESS 1/100 QUEEN STREET, BRISBANE

I/We CERTIFY that reasonable steps have been taken to ensure that this Client Authorisation was signed by each of the Persons named above as Client or Client Agent. SIGNATURE OF REPRESENTATIVE OR REPRESENTATIVE AGENT IF APPLICABLE:

Lawrence Lawyer DATE 16/4/15

SIG

N H

ER

E

DATE / /

SIG

N H

ER

E

SIGNATORY NAME: LAWRENCE LAWYER SIGNATORY NAME:

CAPACITY: CAPACITY:


Terms of this Client Authorisation

1. What is Authorised

The Client authorises the Representative to act on behalf of the Client in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on the Client’s behalf as required for the Conveyancing Transaction(s); and (b) submit or authorise submission of Documents for lodgment with the relevant Land Registry;

and (c) authorise any financial settlement involved in the Conveyancing Transaction(s); and (d) do anything else necessary to complete the Conveyancing Transaction(s).

The Client acknowledges that the Client is bound by any Documents required in connection with a Conveyancing Transaction that the Representative signs on the Client’s behalf in accordance with this Client Authorisation.

2. Mortgagees

Where:

(a) the Representative represents the Client in the Client’s capacity as mortgagee; and (b) the Client represents to the Representative that the Client has taken reasonable steps to verify

the identity of the mortgagor

the Client indemnifies the Representative for any loss resulting from the Client’s failure to take reasonable steps to verify the identity of the mortgagor.

3. Revocation

This Client Authorisation may be revoked by either the Client or the Representative giving notice in writing to the other that they wish to end this Client Authorisation.

4. Privacy and Client Information

The Client acknowledges that information relating to the Client that is required to complete a Conveyancing Transaction, including the Client’s Personal Information, may be collected by and disclosed to the Duty Authority, the ELNO, the Land Registry, the Registrar and third parties (who may be located overseas) involved in the completion of the Conveyancing Transaction or the processing of it, and consents to the collection and disclosure of that information to any of those recipients, including to those who are overseas. For further information about the collection and disclosure of your Personal Information, refer to the relevant party’s privacy policy.

5. Applicable Law

This Client Authorisation is governed by the law in force in the Jurisdiction in which the Property is situated. The Client and the Representative submit to the non-exclusive jurisdiction of the courts of that place.

6. Meaning of Words Used in this Client Authorisation

In this Client Authorisation, capitalised terms have the meaning set out below:

Australian Legal Practitioner has the meaning given to it in the relevant legislation of the Jurisdiction in which the property is situated and in South Australia is a legal practitioner for the purposes of the Legal Practitioners Act 1981 (SA).

Batch Authority means an authority for the Representative to act for the Client in a batch of Conveyancing Transactions details of which are attached to this Client Authorisation.

Capacity means the role of the signatory (for example an attorney or a director of a company).

Caveat means a Document giving notice of a claim to an interest in land that may have the effect of an injunction to stop the registration of a Registry Instrument or other Document in the Titles Register.

Client means the Person or Persons named in this Client Authorisation.

Client Agent means a Person authorised to act as the Client’s agent but does not include the Representative acting solely in this role.


Discharge/Release of Mortgage means a Document that discharges or releases a Mortgage.



Duty Authority means the State Revenue Office of the Jurisdiction in which the property is situated.

ECNL means the Electronic Conveyancing National Law as adopted or implemented in a Jurisdiction by the application law, as amended from time to time.

ELNO means Electronic Lodgment Network Operator and has the meaning given to it in the ECNL.

Identity Agent means a Person who is an agent of either a Representative, or a mortgagee represented by a Representative, and who: (a) the Representative or mortgagee reasonably believes is reputable, competent and

appropriately insured; and (b) is authorised by the Representative or mortgagee to conduct verification of identity on behalf

of the Representative or mortgagee in accordance with the Verification of Identity Standard.

Jurisdiction means an Australian State or Territory.

Land Registry means the agency of a State or Territory responsible for maintaining the Jurisdiction’s Titles Register.

Land Title Reference means the relevant Land Registry’s unique identifier(s) for the property.

Law Practice has the meaning given to it in the relevant legislation of the Jurisdiction in which the land the subject of the Conveyancing Transaction is situated.

Licensed Conveyancer means a Person licensed or registered under the relevant legislation of the Jurisdiction in which the property is situated and in Western Australia is a real estate settlement agent for the purposes of the Settlement Agents Act 1981 (WA).

Mortgage means a Document by which a Person charges an estate or interest in land as security.

Participation Rules, as amended from time to time, has the meaning given to it in the ECNL.



Prescribed Requirement means any Published requirement of the Registrar that Representatives are required to comply with.

Priority/Settlement Notice means a notice (other than a Caveat) which prevents (subject to specified exceptions) registration or recording in the Titles Register of a Registry Instrument or other Document affecting land or an interest in land until the notice lapses or is withdrawn, removed or cancelled.




Representative is the Australian Legal Practitioner, Law Practice or Licensed Conveyancer named in this Client Authorisation who acts on behalf of the Client and under the relevant legislation of the Jurisdiction in which the property is situated can conduct a Conveyancing Transaction.

Representative Agent means a Person authorised by a Representative to act as the Representative’s agent. For the avoidance of doubt this can include an Identity Agent.

Specific Authority means an authority for the Representative to act for the Client in completing the Conveyancing Transactions described in this Client Authorisation.

Standing Authority means an authority for the Representative to act for the Client as described in this Client Authorisation for the period of time set out in this Client Authorisation.


Transfer includes the preparation of all Documents required to effect a purchase or sale of land or any other transfer of land, and the liaison with, where relevant, any mortgagee or proposed mortgagee.

Withdrawal of Caveat means a Document which removes a Caveat.

The following pages contain additional representative examples of the Client Authorisation Form:

• Standing Authority, Representative signs; • Batch Authority, Representative signs; • Specific Authority, Representative Agent signs; • Specific Authority, witnessed overseas.



Representative Reference: BLOGGS-16-4-15 [STANDING AUTHORITY, REPRESENTATIVE SIGNS]

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CAPACITY: CAPACITY:

1 ARNECC MPR Version 4 Guidance Note #2: Verification of Identity – Updated May 2017


VERIFICATION OF IDENTITY

1 INTRODUCTION


• what verification of identity is;

• why verification of identity is required;

• when verification of identity is required; and

• how verification of identity is to be carried out.





2 WHAT IS VERIFICATION OF IDENTITY?

Verification of identity is a process carried out to ensure that a person is who they claim to

be.

The Participation Rules for electronic conveyancing require a Subscriber to take reasonable

steps to verify the identity of:

• Clients;

• Mortgagors;

• Persons to whom certificates of title are provided;

• Signers; and

• Subscriber Administrators.

3 WHY IS VERIFICATION OF IDENTITY REQUIRED?

The purpose of carrying out verification of identity is to reduce the risk of identity fraud and

the registration of fraudulent land transactions. Verification of identity of clients and

2


mortgagors is considered to be part of the due diligence required of conveyancing

professionals. With the introduction of electronic conveyancing, a Subscriber who is

representing a client will sign registry instruments or other electronic documents on the

client’s behalf. In a similar way, mortgagees can sign a mortgage certifying that they hold

a valid mortgage from the mortgagor.

In order for other participants in a conveyancing transaction to have confidence in the

registry instruments or documents, it is vital that the client’s or mortgagor’s identity is

verified.

4 WHEN IS VERIFICATION OF IDENTITY REQUIRED?

The various circumstances when verification of identity is required to be undertaken are

outlined below.

4.1 Clients

A Subscriber must identify each client for which it has authority to sign. Where the client:

• is an individual, the identity of that individual must be verified; or

• is a company, the existence of the company must be confirmed and the identity of

the person or persons signing for the company or witnessing the company seal must

be verified; or

• has appointed an individual as an attorney to sign for the client, the identity of

the attorney must be verified; or

• has appointed a company as an attorney to sign for the client, the existence of

the company must be confirmed and the identity of the person or persons signing for

the company or witnessing the company seal must be verified.

4.2 Mortgagor

If a Subscriber is an incoming mortgagee (for example, a financial institution acting for itself),

the Subscriber must verify the identity of the mortgagor or their agent.

If a Subscriber is representing an incoming mortgagee (for example a law firm on the panel

for a financial institution) it must verify the identity of the mortgagor or their agent, unless it

is reasonably satisfied that the mortgagee has taken reasonable steps to verify the identity

of the mortgagor or their agent.

4.3 Paper certificates of title

A Subscriber must verify the identity of any client or client agent before providing them a

duplicate or paper certificate of title.


A Subscriber must verify the identity of any mortgagor, former mortgagor or their agent

before providing them a duplicate or paper certificate of title, unless the Subscriber is

reasonably satisfied that the mortgagee it represents has taken reasonable steps to verify

the identity of each mortgagor, former mortgagor or their agent.

4.4 Signers

A Subscriber must verify the identity of each person who is to digitally sign documents on

its behalf prior to a Digital Certificate being allocated to that person.

4.5 Subscriber Administrators

The Subscriber must verify the identity of each person whom it appoints as a Subscriber

Administrator, prior to their appointment as a Subscriber Administrator.

5 HOW IS VERIFICATION OF IDENTITY TO BE CARRIED OUT?

In all of the circumstances outlined above, a Subscriber is required to take reasonable steps

to verify the identity of the person.

Where a Subscriber is an organisation, any duly authorised person can undertake the

verification of identity.

A Subscriber must give a certification in the registry instrument for the conveyancing

transaction that reasonable steps have been taken to verify identity.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether reasonable steps were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court

on an objective basis.

The Subscriber decides what steps to take to verify the person’s identity. What constitutes

reasonable steps may be influenced by various factors that when taken into account

contribute to a Subscriber being able to reasonably have confidence in the person’s identity.

Examples of these factors might include the length of time a Subscriber has known the

person or whether they have represented the person on previous occasions. Where a

mortgagee represented by a Subscriber undertakes the verification of identity and therefore

determines what steps to take to verify the mortgagor’s identity, the Subscriber must be

reasonably satisfied that the mortgagee took reasonable steps.


A standard for undertaking verification of identity is set out in Schedule 8 of the Participation

Rules. This Verification of Identity Standard is not mandatory. However, if this Verification

of Identity Standard is properly carried out by one of the prescribed categories of people

the Subscriber will be deemed to have taken reasonable steps to verify identity.

The Verification of Identity Standard is one set of reasonable steps but there are other

reasonable steps that can be taken to verify identity.

Subscribers are required to retain evidence supporting the verification of identity in order to

demonstrate that reasonable steps were taken.

5.2 How can verifications be conducted overseas?

Where a Subscriber’s client or a mortgagor is overseas, the Subscriber or mortgagee

(represented by a Subscriber) needs to decide what steps to take to verify the person’s

identity having regard to the available services and options under the circumstances.

One available option is to utilise the services of an Australian Embassy, High Commission

or Consulate coupled with any necessary further steps in order for the Subscriber or

mortgagee to be reasonably confident in the person’s identity. This process is detailed in

the Appendix to this Guidance Note.

An international financial institution or law practice would also be able to use overseas

personnel to conduct verification of identity.

5.3 When can an agent be used?

A Subscriber can use an agent to undertake verification of identity on its behalf.

A Subscriber that engages an agent to conduct a verification of identity must direct the

agent how to conduct the verification of identity. This could be by using the Verification of

Identity Standard or some other way that constitutes taking reasonable steps.

A Subscriber should obtain from their agent supporting documentation so the Subscriber

can make the required verification of identity certification. Refer to Participation Rules

Guidance Note #3: Certifications.

5.4 Signing of a Client Authorisation or Mortgage

Ideally, a Client Authorisation would be signed at the same time as the verification of identity

is undertaken in order to ensure it is signed by the client or client agent. However, there

may be instances where these processes are not able to occur simultaneously. In these

instances the Subscriber needs to take reasonable steps to ensure that the Client

Authorisation is being signed by their client or the client’s agent that was identified.


Similarly for the granting of a mortgage, the Subscriber must take reasonable steps to

ensure that it is the mortgagor that was identified that grants the mortgage.

This may be done by checking the verification of identity supporting documentation and

ensuring it is the same person signing.

5.5 Further Steps

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s identity.

The Participation Rules require further steps to be taken where:

• an identity document does not appear to be genuine;

• a photograph on an identity document is not a reasonable likeness;

• the person being identified does not appear to be the person to which the identity

documents relate; or

• it is otherwise reasonable to take further steps.

Some circumstances where it may otherwise be reasonable to take further steps could

include:

• where the client has very limited identity documents and there is no explanation as to

why; or

• where you become aware the identity documents have been cancelled; or

• where there appears to be an inconsistency between the identity documents and the

Client Authorisation or mortgage, such as differing signatures; or

• where an agent is used and there appears to be inconsistencies in the supporting

documentation they provided in relation to verification of identity.

Examples of further steps that could be taken include (but are not limited to):

• obtaining more identity documents;

• making enquiries with the client or third parties;

• where the identity documents are Australian using electronic verification services;

• where it is a foreign identity document checking the document looks the same as

those on the respective country’s government website;

• where the identity document is in another language having the identity document

translated by an authorised translator;

• where the verification is unable to be conducted face-to-face due to remoteness

conducting the verification by electronic means with further steps to satisfy yourself of

the person’s identity.


Some circumstances may not be directly linked to verification of identity but may raise

awareness that greater care should be taken in relation to a particular transaction and the

person being identified. For example, the transaction is urgent, you doubt the veracity of

the instructions, it involves a non-standard mortgage of an unencumbered title or the client

has limited English. Whilst such transactions may be legitimate, it may be necessary to

verify the circumstances surrounding the transaction. For example, checking the reason

for urgency or engaging an independent interpreter.

5.6 Previous verification of identity

Where a verification of identity has occurred within the previous 2 years (either by applying

the Verification of Identity Standard or some other way that constitutes reasonable steps),

the person’s identity does not need to be verified again, provided the Subscriber takes

reasonable steps to ensure they are dealing with the person who was previously identified.

It is expected the Subscriber would review the evidence for the previous verification in order

to be able to satisfy themselves that they are dealing with one and the same person.

5.7 What is the Verification of Identity Standard?

The Verification of Identity Standard sets out procedures for how verification of identity may

be performed. If the Standard is properly carried out by one of the prescribed categories of

people then it will be deemed reasonable steps. Where there is a dispute the Subscriber

will be required to prove that the Verification of Identity Standard was properly carried out

for it to be deemed reasonable steps.

5.7.1 Who can use the Verification of Identity Standard?

Anyone can use the Verification of Identity Standard. However, for it to be deemed

reasonable steps the Standard must be properly carried out by one of the following

categories of people:

• Subscriber

The Subscriber can apply the Verification of Identity Standard themselves.

• Mortgagee (where the mortgagee is represented by a Subscriber)

Where a mortgagee is not a Subscriber themselves but is represented by a

Subscriber, the mortgagee can apply the Verification of Identity Standard to undertake

verification of the identity of the mortgagor.

• Identity Agent

An Identity Agent is an agent of either the Subscriber or a mortgagee that is

represented by a Subscriber.


The Subscriber or the mortgagee must reasonably believe the Identity Agent is reputable,

competent and insured. An Identity Agent must maintain minimum levels of insurance.

The Verification of Identity Standard can be applied in whole or in part by any of the above

categories of people acting as the Identity Verifier in the Standard. For example, the

Subscriber may do some of the verification related to companies such as establishing who

is authorised to sign for the company but use an Identity Agent to do the face-to-face

verification of identity of the company’s officers. Alternatively, the Subscriber may engage

an Identity Agent and direct them to undertake the Verification of Identity Standard in its

entirety.

5.7.2 How is the Verification of Identity Standard used?

This section describes how the Verification of Identity Standard is used, and what is required

of those using it in various situations.

5.7.2.1 Face-to-face verification

To comply with the Verification of Identity Standard the person undertaking the verification

(Identity Verifier) must conduct a face-to-face in-person interview with the person to be

identified.

The Identity Verifier must carefully inspect the documents used to verify the identity and

ensure the documents are current (except for an expired Australian passport which may

have expired within the last two years) and original. Any photographs on the documents

must reasonably correspond with the appearance of the person to be identified.

5.7.2.2 Identification Document Categories

The Person Being Identified must supply original identification documents from the list of

documents in the categories in the Verification of Identity Standard. The first assessment

that needs to be made is whether or not the Person Being Identified is an Australian citizen

or resident. If they are, then Categories 1 to 5 must be used. If they are not, Category 6

must be used. The highest category available must be used. A lower level category can

only be used if the person being identified does not possess the documents required for the

higher level, the documents have expired, or if the document is an Australian passport that

has been expired for a period of more than 2 years.

The document categories in the Verification of Identity Standard require that a change of

name or marriage certificate is to be provided if applicable. There may be instances where

identification documents issued by different government departments have been registered

in differing names but a change of name certificate is not appropriate, as that individual has

not changed and/or does not intend to officially change their name. In such a situation an

Identity Verifier must take reasonable steps to ensure the person being identified is one and


the same person as in the varying identification documents provided. This may involve the

Identity Verifier undertaking further checks to verify that person’s identity.

Category 5 is for Australian residents who need to use an Identity Declarant. An Identifier

Declaration is a statutory declaration by a person who knows the person being identified.

The person making the statutory declaration is called the Identity Declarant. There are

specific prescribed requirements on who can be an Identity Declarant and what must be

included in the Identifier Declaration. The Identity Declarant must also have their identity

verified by the Identity Verifier using the Verification of Identity Standard. However, the

identity of the Identity Declarant cannot be verified by a further Identity Declarant.

5.7.2.3 Verification of Identity of Bodies Corporate

For a body corporate, an Identity Verifier must:

• confirm the existence of the body corporate;

• take reasonable steps to establish who is authorised to sign for the body corporate or

witness the affixing of any seal; and

• verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.

5.7.2.4 Verification of Identity of Attorneys

For an attorney who is an individual, an Identity Verifier must:

• confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

• take reasonable steps to establish that the conveyancing transaction is authorised by

that power of attorney; and

• verify the identity of the attorney.

For an attorney who is a body corporate the Identity Verifier must:

• confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

• take reasonable steps to establish that the conveyancing transaction is authorised by

that power of attorney;

• confirm the existence of the body corporate;

• take reasonable steps to establish who is authorised to sign for the body corporate or

witness the affixing of any seal; and

• verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.


5.7.2.5 Evidence Required from an Identity Agent

Where the verification of identity is conducted by an Identity Agent, the Subscriber or

mortgagee (represented by a Subscriber) must receive from the Identity Agent an Identity

Agent Certification in substantial compliance with that set out in Schedule 9 of the


The Identity Agent Certification details:

• to whom the verification of identity relates;

• when it was carried out and by whom;

• what verification of identity documents were used; and

• states that it was done in accordance with the Verification of Identity Standard as

directed by the Subscriber.

The Identity Agent must also provide copies of the identity documents relied on endorsed

as true copies.


Q1: How do I verify the identity of my client who is overseas?

A1: You need to decide what steps to take to verify the person’s identity having regard to

the available services and options under the circumstances.

One option may be to utilise the services of an Australian Embassy, High Commission

or Consulate (as set out in the Appendix), coupled with further steps in order for the

Subscriber or mortgagee (represented by a Subscriber) to be reasonably confident in

the person’s identity.

Further steps may include: making enquiries with the client or third parties, where the

identity documents are Australian using electronic verification services, where it is a

foreign identity document checking the document looks the same as on the respective

country’s government website, where the identity document is in another language

having the identity document translated by an authorised translator, or where the

verification is unable to be conducted face-to-face due to remoteness conducting the

verification by electronic means with further steps to satisfy yourself of the person’s

identity.


Q2: My client has one name on his/her passport and an anglicised or abbreviated

version of that name on his/her driver’s licence? What should I do?

A2: It is possible that documents issued by different government departments may have

differing versions of a name.

You must take reasonable steps to ensure the person required to be identified is one

and the same person referenced in the differing documents. Examples which may be

appropriate in some circumstances are:

• sighting other types of documents or letters issued by an employer, government

agency or educational institution and showing the person’s name and other

details;

• seeking confirmation from relevant organisations of the information given by the

person and whether they are aware that the person is also known by another

name; and

• asking the person questions about the reasons for the differing names,

recording their answers and recording whether and on what basis you

considered those answers to be satisfactory.

Q3: Can I store supporting evidence of the verification of identity electronically?

A3: Yes. Verification of identity evidence can be stored electronically. However, the

medium and means in which documents supporting the verification of identity are to

be retained is to be determined by the Subscriber in light of the possible need to

produce those documents as evidence to a Court. Whichever medium is utilised the

evidence should be safely and securely stored. Evidence supporting the verification

of identity is required to be kept for 7 years from lodgment. Refer to Participation

Rules Guidance Note #5: Retention of Evidence.

Q4: Will verification of identity cause delays in the conveyancing process?

A4: Verification of identity should not cause delays in the conveyancing process as it is

considered part of existing prudent conveyancing practice. It is expected that some

form of verification of identity is already being undertaken in the paper conveyancing

process.

Q5: Can a mortgage broker act as an Identity Agent for a mortgagee?

A5: Yes. A mortgage broker can act as an Identity Agent for a mortgagee for the purpose

of verifying the identity of a mortgagor. The mortgage broker must be providing credit

services related to real property and be either a holder of an Australian Credit Licence,

a credit representative of a holder of an Australian Credit Licence, or an employee or


director of the holder of an Australian Credit Licence or of a related body corporate of

a holder of an Australian Credit Licence engaging in the credit service on behalf of

that licensee. The mortgage broker must hold or be covered by insurance in

accordance with legislative requirements and which includes cover for verification of

identity.

Q6: I have known some of my clients for over 30 years and have previously used

their legal names in legal documents. Why should I verify their identity just

because I have not seen them in the last two years?

A6: If the Verification of Identity Standard is not applied, the Subscriber must determine

what actions it considers would, in the circumstances, constitute the taking of

reasonable steps to verify the client’s identity. A situation where you have known the

client for over 30 years may be one where you decide that the requirement to take

reasonable steps to identify the client is satisfied by the years of interaction with that

client.

Q7: I am a Subscriber who is a financial institution. Can I use the AML/CTF Know

Your Customer schema to verify the identity of my mortgagor?

A7: A Subscriber must determine for itself what steps it considers constitutes the taking

of reasonable steps to verify the identity of a client, or, in this case, a mortgagor. It

may be reasonable, in the circumstances, to use the AML/CTF schema. The risk of

determining what is reasonable in the circumstances lies with the Subscriber.

Q8: A 92 year old in a nursing home needs to sell her home to pay an

accommodation bond. She has not seen her solicitor for at least 25 years. She

has never had a passport or driver’s licence. How should a Subscriber

determine what may constitute reasonable steps?

A8: In this situation some matters the Subscriber may consider in deciding what steps to

take to verify their client’s identity may include:

• Will you take your own reasonable steps or seek to apply the Verification of

Identity Standard?

• Can the verification of identity be conducted face-to-face? If yes, by whom? If

not, what other means can be used to verify the client’s identity?

• What forms of identification are available? For instance what forms of

identification were used to obtain accommodation in the nursing home?

• If you wish to apply the Verification of Identity Standard and the client has limited

identification documents, is there someone who could provide an Identifier


Declaration, such as a doctor, nurse, police officer, social worker or minister of

religion?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the

circumstances of the individual case. Ultimately, this would be determined by a Court


Q9: An 18 year-old wishes to take a transfer of land he has just inherited. He has

no passport or driver’s licence. How should a Subscriber determine what may

constitute reasonable steps?




Identity Standard?


not, what other means can be used to verify the client’s identity?

• What forms of identification are available?

• As this is an 18 year old who would regularly be required to prove his age, is a

photo card available?

• Is there enough other evidence to apply the Verification of Identity Standard? Is

there a birth certificate and Medicare card that can be used?

• If there is not enough evidence available to apply the Verification of Identity

Standard, what other forms of identification are available?


identification documents is there someone who could provide an Identifier

Declaration, such as a teacher, lecturer, employer, doctor, nurse or police

officer?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the



Q10: A person who lives in a remote aboriginal community is buying land. How

should a Subscriber determine what may constitute reasonable steps?



• Is this an existing client?



Identity Standard?

• Can the verification of identity be undertaken face-to-face? If yes, by whom? If

not, how can it be undertaken?


• Is there enough other evidence to apply the Verification of Identity Standard?



Declaration, such as an employer, doctor, nurse, community leader, police

officer, bank manager, Centrelink officer or other government officer?

Whether reasonable steps were taken will be a question of fact depending on the



Q11: An elderly person discovers that his or her birth has never been registered and

does not have documentation regarding the birth. How should a Subscriber

determine what may constitute reasonable steps?

A11: In this situation one of the main considerations for the Subscriber is what identification

documentation is available given that there are limitations regarding documentation

that proves the client’s birth.

The Subscriber could consider if they are able to use Category 5(b) in the Verification

of Identity Standard, which was included for circumstances where limited identity

documentation exists. In doing so they would need to consider the following:

• Is this an existing client?


Identity Standard?


not, how can it be undertaken?


• Does the client have a Medicare card?

• What other documents are available to evidence the client’s current and former

living arrangements, ownership of assets and involvement in society using the

identity they claim?



Declaration, such as a doctor, nurse, police officer, bank manager, social worker

or minister of religion?


Whether reasonable steps were taken will be a question of fact depending on the



Q12: Is it always necessary to use a consular office in verifying the identity of a

person overseas?

A12: The responsibility for verifying the identity of the parties to a conveyancing transaction

rests with the practitioner representing them in the case of vendors and purchasers.

The practitioner is required to take reasonable steps in verifying the identity and what

is reasonable in each circumstance is for the practitioner to determine and to be able

to subsequently substantiate if required.

The procedure contained in the recently updated Verification of Identity Guidance

Note using Australian Consular Offices overseas is one service a practitioner may

decide is reasonable in the circumstances. It is not mandatory that the Australian

Consular Office service be used.

Q13: Does the use of video technology meet the requirements of the Verification of

Identity Standard?

A13: To comply with the Verification of Identity Standard the person undertaking the

verification (Identity Verifier) must conduct a face-to-face in-person interview with the

Person Being Identified. The face-to-face in-person interview requires the Identity

Verifier and the Person Being Identified to both be physically present at the interview.

The Identity Verifier must also sight originals of documents complying with one of the

Categories of identification Documents set out in paragraph 3 of the Verification of

Identity Standard (see Model Participation Rules, Schedule 8). Use of video

technology, such as Skype or FaceTime, would not constitute a ‘face-to-face in-

person interview’, nor does it allow identification of original documents, as required by

the Verification of Identity Standard.

The Verification of Identity Standard sets out procedures for how verification of identity

may be performed. If the Standard is properly carried out by one of the prescribed

categories of people then it will be deemed reasonable steps.

Use of the Standard is not compulsory and may not be practical in some

circumstances. Accordingly, it is also possible for a Subscriber to verify the identity of

a person in some other way that constitutes the taking of reasonable steps. What

constitutes reasonable steps is dependent on the circumstances of each individual

case. Where the Standard is not used and there is a dispute, the Subscriber will be


required to establish that the method used to verify the identity of a person constituted

“taking reasonable steps” in the particular circumstances.

Accordingly, where the Standard is not being used a Subscriber may consider that

use of video technology, such as Skype or FaceTime, is useful in the particular

circumstances. However, its use should be considered by the Subscriber who will

have to justify that, in the circumstances of that particular Verification of Identity, use

of video technology and any other measures used, constituted the taking of

reasonable steps. ARNECC notes that video technology may be manipulated or

forged, therefore caution is recommended. The use of this technology is at the

discretion and risk of the Subscriber.

Whether or not the Standard is used to verify a person’s identity, further enquiries

should be made where doubt arises, or should reasonably have arisen, in relation to

a transaction and a person’s identity.

Q14: What is substantial compliance with the Identity Agent Certification?

A14: Superficial formatting changes are permitted but the wording cannot be amended.

Q15: Can I rely on an Identity Agent Certification provided to another Subscriber?

A15: The obligation to undertake verification of identity rests with the Subscriber. They may

use an Identity Agent or other agent to undertake a verification on their behalf. A

Subscriber would not normally be able to rely on another Subscriber’s Identity Agent

Certification. It may be possible to do so if there is an agency arrangement between

the two Subscribers.

Q16: How do I verify the identity of a person entitled to receive a certificate of title if

I am sending it to them?

A16: A Subscriber (or the mortgagee it represents) must take reasonable steps to verify the

identity of the person to whom they are sending the certificate of title to ensure they

are the person entitled to receive it.

Q17: As a Solicitor/Legal Practitioner, is it acceptable for me to Verify the Identity of

a person who is a member of my family? I have no personal interest in the

property and am not on title.

A17: In your capacity as a Solicitor/Legal Practitioner you are permitted to verify the identity

of a person who is a member of your family providing you have taken reasonable

steps to verify the identity of that person and can give a certification in the registry

instrument for the conveyancing transaction that reasonable steps have been taken

to verify identity.


Q18: Is a Subscriber required to verify the identity of a practitioner requesting the

handover of a paper Certificate of Title being held on behalf of a former client?

A18: Subscribers must take reasonable steps to verify the identity of any person to whom

they provide a paper Certificate of Title (duplicate). If the request for the Certificate is

from the Subscriber’s client, such as the registered proprietor, the Subscriber is

required to take reasonable steps to verify the identity of that client. If, on the other

hand, the request is from a person other than a former client, the Subscriber is

required to take reasonable steps to verify both the identity of that person and their

right to be requesting the Certificate.

These requirements are not necessary, however, when the Certificate of Title has

been declared void.

Q19: We are a subscriber to PEXA and must verify the identity of our client in regional

China. We note that to verify the identity of our client our options include

engaging an agent at an:

• Australian Embassy or Consulate; or

• International law firm or bank.

Please advise if it is acceptable to engage a representative from the Public

Notary Office of the Republic of China to carry out the verification as our agent?

A19: The Model Participation Rules (MPRs) state that a Subscriber is required to take

‘reasonable steps’ to verify the identity of its client. This could be by using the

Verification of Identity Standard or some other way that constitutes taking reasonable

steps.

If using the Verification of Identity Standard, a Subscriber can use an Identity Agent

to undertake verification of identity on its behalf. An Identity Agent is defined in the

MPRs and the requirements relating to Identity Agents are set out in Participation

Rule 6.5.5. For example, a Subscriber that engages an Identity Agent must direct the

Identity Agent to use the Verification of Identity Standard.

It is also possible for you to use another type of agent but that will not be deemed to

constitute reasonable steps under Participation Rule 6.5.6.

You need to decide what steps to take to verify the person’s identity having regard to

the available services and options under the circumstances.

Q20: What is meant by 'compliance with relevant legislation' in the certification of

correctness?


A20: The certification relates to the correctness of the matters that a prudent conveyancing

practitioner should be undertaking today. As every conveyancing matter is different,

practitioners must exercise their professional judgement depending on the

circumstances of each individual case.

The subject of the certification is whether the registry instrument complies, not

whether the relevant transacting party has complied with any particular piece of

legislation that may apply to that party’s operations or responsibilities. This does not

mean having a responsibility to investigate all matters of the law generally but if there

is awareness of non-compliance with a relevant aspect of the law and the certification

is made and the instrument lodged, the certification is likely to be non-compliant.

__________


Appendix

Australian Embassy/High Commission/Consulate Overseas Verification of Identity and Witnessing Process

1 A client or mortgagor located overseas contacts a Subscriber or mortgagee concerning a conveyancing transaction relating to Australian land.

2 The Subscriber or mortgagee takes initial instructions from the client or mortgagor and

conducts preliminary enquiries – full name and contact details for the client or mortgagor, land description, transaction details (sale, purchase, mortgage etc).

3 The Subscriber or mortgagee reviews with the client or mortgagor what identification

documents they have available to them and determines the highest document category in the Verification of Identity Standard they can satisfy.

4 The Subscriber or mortgagee advises the client or mortgagor that they will need to have

their identity verified and signature witnessed by an employee at an Australian Embassy, High Commission or Consulate (Australian Consular Office). The Subscriber or mortgagee advises the client or mortgagor to find out where the nearest Australian Consular Office is located, to make preliminary contact with the Australian Consular Office to make an appointment (where necessary) and to notify the Subscriber or mortgagee of the Australian Consular Office location.

5 The Subscriber or mortgagee takes reasonable steps to determine the client or

mortgagor’s right to deal as a particular party to the conveyancing transaction. 6 The Subscriber or mortgagee prepares a Client Authorisation or mortgage and the

approved Australian Embassy/High Commission/Consulate Identity/Witnessing Certification (Certification) and sends them to the client or mortgagor with written instructions advising of the process and what original and current identification documents are to be produced at the nominated Australian Consular Office (passport, driver’s license etc). The format of the Certification is at the end of this Appendix and the Certification Form is available from the ARNECC website.

7 The client or mortgagor attends the nominated Australian Consular Office with the

prepared Client Authorisation or mortgage and Certification, original identification documents and the Subscriber or mortgagee’s written instructions.

8 The Australian Consular Office satisfies itself that the photos on the identification

documents produced by the client or mortgagor are a reasonable likeness of the client or mortgagor. If this is not possible, the Australian Consular Office service is terminated.

9 When reasonable likeness is confirmed, the Australian Consular Office:

• prepares endorsed copies of all original identification documents produced by the client or mortgagor;

• asks the client or mortgagor to sign the Client Authorisation or mortgage and the Australian Consular Office witnesses the client or mortgagor’s signature on the Client Authorisation or mortgage; and

• completes, signs, dates and endorses the Certification for the client or mortgagor. 10 The Australian Consular Office hands to the client or mortgagor the:

• original identification documents; • signed Client Authorisation or mortgage,


• signed, dated and endorsed copies of the original identification documents produced; and

• signed, dated and endorsed Certification. 11 The client or mortgagor delivers the signed Client Authorisation or mortgage, endorsed

copies of the original identification documents produced and the Certification to the Subscriber or mortgagee. (The means of delivery are to be arranged between the client or mortgagor and the Subscriber or mortgagee.)

12 If the Subscriber or mortgagee has any reason to doubt the authenticity of any of the

documents received from the client or mortgagor, copies of the Australian Consular Office endorsements and Certification can be referred to the Department of Foreign Affairs and Trade (DFAT) by email for confirmation that the signatures and stamps appearing on the documents are that of a DFAT officer. For example, if the documents don’t bear a stamp of the Australian Consular Office, the name of the Australian Consular Office officer is not clear or there are other circumstances surrounding the transaction that cause doubt, such as signatures of clients not matching.

The following process applies for these referrals:

• The Subscriber or mortgagee emails the Australian Consular Office officer who

made the endorsements and certification using the standard email format <firstname>.<lastname>@dfat.gov.au (or in the same format with @austrade.gov.au for those consulates run by Austrade) supplying details of the service provided to the client or mortgagor and requesting confirmation that the Australian Consular Office provided the service. The request is to include copies of the endorsed document copies and the Certification supplied by the client or mortgagor. The reason for the referral is to be included in the request to allow DFAT to determine whether any aspect of the Australian Consular Office’s service gave rise to the referral.

• The Australian Consular Office will, if work demands allow, reply to the request

providing confirmation of the service provided. Alternatively, the Subscriber or mortgagee will receive an automatic read receipt email confirming that the Australian Consular Office officer exists as an employee of DFAT.

• If the Subscriber or mortgagee receives no response or cannot for any reason

determine the name of the Australian Consular Office officer who made the endorsements or certification (for example, when the Australian Consular Office stamp obscures part of the Australian Consular Office officer’s name), the Subscriber or mortgagee should email DFAT’s Consular Policy Unit at [email protected] requesting confirmation of the service provided by an Australian Consular Office and, when no response has been received from a request made directly to the Australian Consular Office, attaching a copy of that request.

In responding to confirmation requests DFAT is confirming that the Australian Consular Office officer’s signature and the Australian Consular Office stamp on a document are from an authorised officer.

13 The process for paper transactions is the same by substituting paper instrument for Client

Authorisation and by substituting Australian Legal Practitioner, Law Practice or Licensed Conveyancer for Subscriber.

mailto:%3cfirstname%3e.%3clastname%[email protected]

mailto:[email protected]


Australian Embassy/High Commission/Consulate Identity/Witnessing Certification “I, ____________________________________________________[full name of authorised employee

/consular or diplomatic officer] of _______________________________________________________[Australian Embassy/High

Commission/Consulate] being an authorised employee/consular or diplomatic officer within the meaning of the Section 3 of the Consular Fees Act 1955 hereby certify that: (a) the identification/witnessing relates to

_______________________________________________________________________ [full name of the person being identified] (‘the person being identified’); and

(b) the verification of identity/witnessing was carried out on___________________[date]; and (c) the original current identification documents as listed below were produced to me and

copies of these documents signed, dated and endorsed by me as true copies were provided to the person being identified; and

(d) the verification of identity/witnessing was conducted in accordance with the Department of Foreign Affairs and Trade policy for verification of identity, witnessing signatures on documents and making of endorsed copies and in response to the written instructions provided by the person being identified’s Australian Legal Practitioner, Law Practice, Licensed Conveyancer or mortgagee; and

(e) the person being identified was physically present for the verification of identity and the witnessing of the document(s) listed at paragraph (g); and

(f) I am not a party to the transaction; and (g) I witnessed the person being identified execute the following document(s)

_______________________________________________________________________ (eg, Client Authorisation, transfer of land, mortgage of land etc); and

(h) this signed, dated and endorsed certification; the signed, dated and endorsed copy

identity documents (listed below); and the witnessed document(s) listed in paragraph (g); were returned to the person being identified.

…………………………………………………………………………. Signature of authorised employee/consular or diplomatic officer | Post Stamp List of identification documents produced (see (c) above):

Description of identity documents produced and endorsed

1 ARNECC MPR Version 4 Guidance Note #3: Certifications – Updated May 2017


CERTIFICATIONS

1 INTRODUCTION


• what certifications are;

• why certifications are required;

• when certifications are required; and

• how certifications are given.





2 WHAT ARE CERTIFICATIONS?

Certifications are statements made by a Certifier that they have undertaken a specific

action. A Certifier is the Subscriber providing the certifications. The term Subscriber is

therefore used throughout this Guidance Note. A Subscriber must provide the required

Certifications when signing an electronic registry instruments or other electronic document.

Subscribers provide the Certifications required for the role they are undertaking. The

Certifications are system driven based on Land Registry business rules.

A Subscriber must give the certifications in their own right, regardless of whether they are

acting for themselves or a client. This includes situations where the Subscriber is a

conveyancer or lawyer who signs on behalf of a client.

Certifications for electronic transactions are set out in Schedule 3 of the Participation Rules.

The Certifications are:

# Subject Certification

1 Identity The Certifier has taken reasonable steps to verify the identity of the [transferor/transferee/ mortgagee/ mortgagor/ caveator/ applicant].

3


# Subject Certification

2 Authority The Certifier holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.

3 Evidence The Certifier has retained the evidence supporting this Registry Instrument or Document.

4 Correctness The Certifier has taken reasonable steps to ensure that this Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.

5 Mortgagee The Certifier, or the Certifier is reasonably satisfied that the mortgagee it represents,:

(a) has taken reasonable steps to verify the identity of the mortgagor; and

(b) holds a mortgage granted by the mortgagor on the same terms as this Registry Instrument or Document.

6 Certificate of Title

(used in Victoria and Western Australia only)

The Certifier has:

(a) retrieved; and

(b) either securely destroyed or made invalid

the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry Instrument or Document.

3 WHY ARE CERTIFICATIONS REQUIRED?

Certifications on a registry instrument or document give other parties to a transaction greater

certainty that the rules defined in the Participation Rules have been complied with.

The certifications also provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any Prescribed

Requirements.

4 WHEN ARE CERTIFICATIONS REQUIRED?

Certifications are required any time a registry instrument or document is digitally signed.

The certifications required to be provided will vary depending on the Subscriber role and

registry instrument or document type. Refer to table below detailing the application of the

certifications in the most common transactions.

For example:

• A Subscriber acting on their own behalf, other than a mortgagee, will be required to

provide only the Evidence and Correctness certifications for registry instruments.

• An incoming mortgagee representing itself will be required to provide the Evidence,

Correctness and Mortgagee certifications.


• A Subscriber representing a transferor will be required to provide the Identity,

Authority, Evidence and Correctness certifications.

• A Subscriber lodging a Priority Notice or Settlement Notice will be required to provide

the Evidence and Correctness certifications.

The Certificate of Title certification is only required for transactions involving land situated

in Victoria and Western Australia. In Victoria the Certificate of Title certification is required

for an administrative notice that converts a paper Certificate of Title to an electronic

Certificate of Title. In Western Australia the Certificate of Title certification is required when

a paper Certificate of Title exists, and is to be provided by the Subscriber who controls or to

whom control of that Certificate of Title is given.

Certifications are also required in some jurisdictions for documents, including Notices of

Sale, Notices of Acquisition, Consents and Lodgment Instructions.

The certifications required in the most common transactions are:

Document Type Party Giving Certifications Certifications Required

Discharge of Mortgage Mortgagee - self-represented 3 and 4 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3 and 4 (and 6 for WA)

Mortgage Mortgagee - self-represented 3, 4 and 5 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3, 4 and 5 (and 6 for WA)

Transfer Transferee – self-represented 3 and 4

Subscriber representing transferee

1, 2, 3 and 4

Transferor – self-represented 3 and 4 (and 6 for WA)

Subscriber representing transferor

1, 2, 3 and 4 (and 6 for WA)

Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator

1, 3 and 4

Withdrawal of Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator

1, 2, 3 and 4

Priority Notice/Settlement Notice and Extension of Priority Notice

Applicant – self-represented 3 and 4

Subscriber representing applicant

3 and 4

Withdrawal of Priority Notice


Subscriber representing applicant

3 and 4

Withdrawal of Settlement Notice


Representative representing applicant

1, 2, 3 and 4


Document Type Party Giving Certifications Certifications Required

Administrative Notice to convert and nominate a Certificate of Title

(Victoria Only)

Subscriber 6

5 HOW ARE CERTIFICATIONS GIVEN?

Certifications will be set out in the registry instrument or document when it is presented to

the Subscriber to be signed.

When giving a certification a Subscriber must ensure that it can demonstrate compliance

with the certification.

The compliance requirements for each certification are described below.

5.1 Identity

Compliance with the identity certification can be demonstrated by proving that reasonable

steps were taken to identify the person concerned.

If the Verification of Identity Standard was used, evidence demonstrating the application of

the Verification of Identity Standard is required, such as copies of the identification

documents provided by the Person Being Identified.

Where an alternative method of identification was used by the Subscriber, evidence which

demonstrates the reasonable steps taken is required to be kept. For example, a mortgagee

Subscriber may decide that the transaction records it has for long-standing customers who

are well-known to it are sufficient to constitute taking reasonable steps.

A Subscriber may use an Identity Agent or other agent to undertake verification of identity

on their behalf. Evidence of who undertook the verification of identity, and on what basis,

will be required.

Refer to MPR Guidance Note #2: Verification of Identity.

5.2 Authority

Where the Authority certification is required, compliance can be proven by producing the

completed Client Authorisation.

Refer to MPR Guidance Note #1: Client Authorisation.

5.3 Evidence

Where the Evidence certification is required, any evidence supporting the conveyancing

transaction must be retained for at least 7 years from the date of lodgment.


This includes Verification of Identity and Client Authorisation evidence as outlined in the

preceding paragraphs, as well as any other supporting evidence for the registry instrument

(for example any form required by the Duty Authority, statutory declarations, trust deeds,

agency arrangements, evidence of death etc.).

It should include any supporting material evidencing that the client or mortgagor has the

right to enter the conveyancing transaction specified in the Client Authorisation or mortgage.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is required for

a paper instrument, with the addition of the Client Authorisation and Verification of Identity

evidence (if not currently kept).

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.

Refer to MPR Guidance Note #4 – Right to Deal and MPR Guidance Note #5 – Retention

of Evidence.

5.4 Correctness

No specific evidence is required to prove compliance with this certification. However, if it

becomes clear that prudent conveyancing practices to ensure correctness of the signed

registry instrument or document were not followed, it is likely that compliance with this

certification will not be demonstrated.

5.5 Mortgagee

Where the Mortgagee certification is required, compliance can be proven by producing a

valid mortgage granted by the mortgagor on the same terms as the mortgage lodged with

the Land Registry, together with evidence of verification of identity of the mortgagor.

5.6 Certificate of Title

No specific evidence is required to prove compliance with this certification. However, where

a certification was provided that a (duplicate) Certificate of Title was invalidated or destroyed

and a valid version of the (duplicate) Certificate of Title appears at a later date, it will be

assumed that this certification was incorrectly given.



Q1: What happens if I can’t give a particular certification?

A1: The certifications provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any


The certifications relate to requirements for that particular conveyancing transaction

to proceed. Where one or more certifications cannot be provided then the transaction

should not go ahead, unless and until the Subscriber is satisfied that they can make

the certifications in good faith.

Q2: The Evidence certification appears very broad. Do I need to seek out supporting

evidence that I have not requested as part of the conveyancing transaction?

A2: No. The evidence required for the Evidence certification is evidence which should be

obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. You are not required to seek additional supporting

evidence.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is required

for a paper instrument, with the addition of the Client Authorisation and Verification of

Identity evidence (if not currently kept).

Q3: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A3: Evidence should be kept which supports the requirements and the validity of the

conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the identity of the transacting party, they should

be kept.

Q4: What would happen if I inadvertently gave a false certification?

A4: The Subscriber is responsible for ensuring all the things being certified are correct. If

the transaction is completed, the consequences of a certification having been given

incorrectly would depend on the outcome of the transaction for each party and the

application of legislation and other laws relevant to the circumstances.

Q5: When is the Certificate of Title certification required?


A5: The Certificate of Title certification is only required for transactions involving land

situated in Victoria and Western Australia.

In Victoria the Certificate of Title certification is required for an administrative notice

that converts a paper Certificate of Title to an electronic Certificate of Title. In Western

Australia the Certificate of Title certification is required when a paper Certificate of

Title exists, and is to be provided by the Subscriber who controls or to whom control

of that Certificate of Title is given.

The certification is not inconsistent with the prescribed requirements for Control of

Right to Deal holders in New South Wales.

Q6: What is meant by 'compliance with relevant legislation' in the certification of

correctness?

A6: The certification relates to the correctness of the matters that a prudent conveyancing

practitioner should be undertaking today. As every conveyancing matter is different,

practitioners must exercise their professional judgement depending on the

circumstances of each individual case.

The subject of the certification is whether the registry instrument complies, not

whether the relevant transacting party has complied with any particular piece of

legislation that may apply to that party’s operations or responsibilities. This does not

mean having a responsibility to investigate all matters of the law generally but if there

is awareness of non-compliance with a relevant aspect of the law and the certification

is made and the instrument lodged, the certification is likely to be non-compliant.

__________

1 ARNECC MPR Version 4 Guidance Note #4: Right to Deal – Updated May 2017


RIGHT TO DEAL

1 INTRODUCTION


• what right to deal is;

• why verification of right to deal is required;

• when right to deal must be verified; and

• how you verify right to deal.

This guide does not constitute legal advice nor does it replace prudent

conveyancing practice. Nothing written in this guide overrides the Electronic

Conveyancing National Law, Participation Rules, any other relevant legislation or

Registrar’s Prescribed Requirements.

2 WHAT IS RIGHT TO DEAL?

Right to deal is the entitlement of a person to be a particular party to a conveyancing

transaction.

The Participation Rules for electronic conveyancing require a Subscriber to take

reasonable steps to verify the right to deal of their client, and/or the mortgagor for a

mortgage.

3 WHY IS VERIFICATION OF RIGHT TO DEAL REQUIRED?

A Representative must verify the right to deal of their client. A mortgagee, or a

Representative of a mortgagee, must verify the right to deal of a mortgagor. Verifying right

to deal is considered to be part of the due diligence required of conveyancing

professionals. It is required to ensure that the person who is your client or the intended

mortgagor has the right to deal with the subject property.

4


Verifying right to deal mitigates the risk of a fraudulent transaction and gives the other

parties to an electronic transaction confidence they are transacting with the person who

has the right to transact.

4 WHEN MUST RIGHT TO DEAL BE VERIFIED?

Right to deal must be verified whenever you are representing a client in a conveyancing

transaction, or if you are a mortgagee taking a mortgage (or a Subscriber whose client is a

mortgagee).

Verification of right to deal is closely linked to verification of identity. Prudent

conveyancing practice would be to conduct these processes simultaneously. Refer to

MPR Guidance Note #2: Verification of Identity.

5 HOW DO YOU VERIFY RIGHT TO DEAL?

A Subscriber is required to take reasonable steps to verify the right to deal. Where a

Subscriber is an organisation, any person duly authorised by the Subscriber can

undertake the verification of right to deal.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether ‘reasonable steps’ were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court


Verifying right to deal will require you to sight supporting evidence that includes the name

of the person whose right to deal is being verified and the property or transaction details.

The supporting evidence should allow you to link the registered interest holder or

transacting party to the land.

More extensive checks and enquiries should be made where doubt arises, or should

reasonably have arisen, in relation to a transaction and a person’s right to deal.

The following examples may help establish right to deal for parties involved in common

transactions. This list is not exhaustive and what constitutes reasonable steps to

verify right to deal will depend on the circumstances.

Reliance on any one document is not conclusive evidence and how much evidence is

required is dependent on the circumstances. For example, reliance on a duplicate


certificate of title may only show that person has access to that title, not that they are the

person who has the right to deal with the land. Such evidence would need to be coupled

with verification of identity and sufficient supporting evidence to satisfy yourself of their

right to deal.

5.2 Outgoing Party and Mortgagor

For a party that is relinquishing their interest, such as a transferor, or a mortgagor

supporting documentation that may assist in establishing right to deal could include

originals, copies or records of the following:

• a current local government rates notice

• current utility bills for the property

• a current land tax assessment notice for the property

• loan documentation

• the mortgage granted by the mortgagor (if one exists)

• the certificate of title/duplicate certificate of title for the property (if one exists) and/or

a recently issued registration confirmation statement for the property.

A title search should be obtained to check who is named as a registered interest holder to

ensure the correct person’s right to deal is being verified.

5.3 Incoming Party

For a party that is coming onto title, such as a transferee or a mortgagee, supporting

documentation that may assist in establishing right to deal could include the following:

• the contract of sale for the property

• loan documentation.

In Queensland to verify right to deal for a caveator you should take reasonable steps to

determine that your client is a person who meets the eligibility requirements for lodging a

caveat under the Land Title Act 1994.

In all other jurisdictions to verify right to deal for a caveator you should take reasonable

steps to determine that your client has a caveatable interest and that you believe the

claims made by the caveator are true in substance and in fact.


5.4 Caveator (withdrawal of caveat)

If you are the Subscriber that represented the caveator named in the caveat, you should

take reasonable steps to ensure that the caveator is the same person you initially

represented.

If you are a different Subscriber to the one that represented the caveator named in the

caveat, production by the caveator of supporting documentation for the caveat could

assist in establishing the caveator’s right to deal.

5.5 Supporting Evidence

You must retain supporting evidence that shows the steps you took to reasonably verify

your client’s or the mortgagor’s right to deal.

This may include copies dated and endorsed as true copies of the supporting

documentation used to verify right to deal and notes on the process undertaken including

any further steps taken.

There are no restrictions on the ways in which you can demonstrate that you took

reasonable steps.

5.6 Further considerations

There are many instances where further consideration is required of what steps need to

be taken to establish a person’s right to deal.

For example, consideration should be given to the following:

• Does the transacting party’s name differ on the supporting documentation? If so,

have they changed their name and can they provide documentation to show this?

• Is the transacting party subject to a trust? If yes, is the conveyancing transaction

permitted under the trust? Who are the current trustees?

• Is there an insolvency event involving one of the transacting parties? If there is an

insolvency event, is the conveyancing transaction permitted under the relevant

legislation?

• Is the transacting party a statutory person? What is the correct name of the

statutory person? Is the conveyancing transaction permitted under the relevant

legislation? Are delegations permitted under the relevant legislation? Are the

delegations relevant to the conveyancing transaction correct?

• Is the transacting party a successor at law to the registered owner? On what basis

is it a successor at law - statutory vesting, transfer of business or another basis?


• Is the transacting party an executor? Is the conveyancing transaction contemplated

by the will?

• Is the transacting party a represented person, eg under the jurisdiction’s

guardianship and administration legislation? Is the conveyancing transaction

permitted by the relevant orders and under the relevant legislation?

• Is a person acting under a power of attorney? If there is a power of attorney, is the

conveyancing transaction permitted under the power? Is the power still current or

has it been revoked? Has the correct person been identified as attorney? Are the

attorneys required to act jointly or severally?

• Is the transacting party an incorporated association? If the party is an incorporated

association, is the conveyancing transaction permitted under the relevant rules or

constitution and legislation? Does the conveyancing transaction purport to give

effect to a Court order? Is the conveyancing transaction contemplated by the order?

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s right to deal. For example where you

know or ought to know:

• that the documents being produced for verification of right to deal are not genuine;

or

• that the age of the person whose right to deal is being verified does not align with

the likely age of the person who has the right to deal (for example the purported

transferor is too young to have purchased the property at the time it was purchased);

or

• of any other circumstance that raises suspicion or should be investigated further.

Other circumstances could include where your client is more than one person and only

one person provides instructions. For example, where your client consists of a couple as

joint tenants. You must verify the right to deal of all of the persons constituting your client.

You should contact all persons comprising your client to confirm their instructions.

Similarly, where your client is an incorporated entity you should ensure you are dealing

with the representatives of the incorporated entity that are duly authorised to provide

instructions.

Some circumstances may not be directly linked to right to deal but may raise awareness

that greater care should be taken in relation to a particular transaction. For example the

transaction is urgent, you doubt the veracity of the instructions, it involves a non-standard

mortgage of an unencumbered title or your client has limited English. Whilst such


transactions may be legitimate, it may be necessary to verify the circumstances

surrounding the transaction, for example, by checking the reason for urgency or engaging

an independent interpreter.


Q1: How do I know that my client John Smith is the same John Smith that is the

proprietor on title who has the right to deal?

A1: What is reasonable depends on the circumstances. You need to take steps to

satisfy yourself which may include simultaneous verification of identity and

verification of right to deal by obtaining supporting evidence to link John Smith to the

property, such as one or more of the documents referred to under Relinquishing Party above. You should also make further enquiries where doubt arises or should

arise in relation to the instructions and transaction. For example, the purported

transferor is too young to have purchased the property at the time it was purchased

and therefore suspicion should arise that they may be John Smith junior.

Q2: What should I do if I doubt my client has the mental capacity to enter into the

transaction?

A2: You should make further enquiries if you doubt that your client has the mental

capacity to enter into the transaction. Such enquiries could include obtaining a

medical certificate to verify that they have the mental capacity to enter into the

transaction.

Q3: I am a Subscriber representing an incoming mortgagee, what are my

obligations in relation to right to deal?

A3: You must verify the right to deal of your client, in this instance the mortgagee. This

could be done by obtaining loan documentation and any other supporting

documentation that shows they are the intended incoming mortgagee for that

property.

In addition to this you must take reasonable steps to verify that the mortgagor has

the right to enter into the mortgage. This could be done by obtaining the contract of

sale and other related documentation if they are the incoming proprietor. If they are

the current proprietor documentation tying that proprietor to the subject property is

required. For example a current local government rates notice, current utility bills for

the property, a current land tax assessment notice for the property, previous loan

documentation and/or a certificate of title or registration confirmation statement for

the property.

1 ARNECC MPR Version 4 Guidance Note #5: Retention of Evidence – Updated May 2017


RETENTION OF EVIDENCE

1 INTRODUCTION


• what evidence retention is;

• why evidence is required to be retained;

• when evidence must be retained; and

• how evidence is to be retained.

This guide does not constitute legal advice nor does it replace prudent

conveyancing practice. Nothing written in this guide overrides the Electronic

Conveyancing National Law, Participation Rules, any other relevant legislation or

Registrar’s Prescribed Requirements.

2 WHAT IS EVIDENCE RETENTION?

Under the Participation Rules evidence supporting a conveyancing transaction must be

kept for at least 7 years from the date of lodgment. The evidence must be legible, stored

safely and securely, and accessible.

A Subscriber is required to retain evidence supporting:

• Client Authorisation;

• Verification of Identity;

• Right to Deal;

• Other Prescribed Requirements; and

to retain any evidence required by the Duty Authority.

5


3 WHY IS EVIDENCE REQUIRED TO BE RETAINED?

Evidence is required to be retained in order to demonstrate that the transaction was

completed in accordance with legislative and other requirements and the certifications

required were accurately made. Refer to MPR Guidance Note #3: Certifications.

Evidence may be required to be provided to the Registrar for the purpose of monitoring

compliance with legislative and other requirements. Under the Electronic Conveyancing

National Law, the Registrar may conduct a compliance examination either as a result of

receiving a request or complaint from any person or on the Registrar’s own initiative. The

Registrar may conduct a compliance examination for the purpose of ascertaining whether

or not the Participation Rules have been complied with or investigating any suspected or

alleged case of misconduct.

If there is a dispute that arises in relation to a conveyancing transaction a Subscriber may

need to demonstrate in Court proceedings that the transaction was completed in

accordance with legislative and other requirements. For example, evidence that

reasonable steps were undertaken to verify the identity of a client and their right to deal

may be required. Refer to MPR Guidance Note #2: Verification of Identity and MPR

Guidance Note #4: Right to Deal.

4 WHEN MUST EVIDENCE BE RETAINED?

Evidence must be retained whenever a conveyancing transaction is undertaken. It must

be retained for at least 7 years from the date of lodgment of the registry instrument or

document.

Evidence supporting the registry instrument is that which is required to demonstrate the

validity of the conveyancing transaction. This will be what is required for a paper

instrument, with the addition of the Client Authorisation and verification of identity

evidence (if not currently kept). The evidence required is evidence which should be

obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. A Subscriber is not required to seek additional

supporting evidence.

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.


The following evidence must be retained:

4.1 Client Authorisation

The Client Authorisation and any evidence supporting that Client Authorisation must be

retained. Refer to MPR Guidance Note #1: Client Authorisation.

Where there is a Client Authorisation and it is for a batch of conveyancing transactions the

Client Authorisation is required to be kept for at least 7 years from the last conveyancing

transaction lodged with the Land Registry. Similarly for a standing Client Authorisation it

will need to be kept for at least 7 years from the last conveyancing transaction lodged with

the Land Registry before the standing authority was revoked or expired.

4.2 Verification of Identity

Any evidence supporting that reasonable steps were taken to verify the identity of the

client, mortgagor, person to whom a certificate of title was provided, signer or Subscriber

administrator (as applicable) must be retained. If the Verification of Identity Standard was

used this evidence must demonstrate that the procedure for the Verification of Identity

Standard was followed. If alternative reasonable steps were used to verify identity the

evidence must show what these steps were. Refer to MPR Guidance Note #2:

Verification of Identity.

4.3 Right to Deal

Any evidence supporting a party’s right to enter into the conveyancing transaction must be

retained. Refer to MPR Guidance Note #4: Right to Deal.

Evidence supporting a party’s right to enter into a conveyancing transaction may include

but is not limited to originals, copies or records of: a current local government rates notice,

current utility bills for the property, a current land tax assessment notice for the property,

loan documentation, the mortgage granted by the mortgagor (if one exists), the contract

of sale for the property, the certificate of title/duplicate certificate of title for the property (if

one exists) and/or a recently issued registration confirmation statement for the property .

4.4 Other Prescribed Requirement

Any evidence that demonstrates compliance with relevant legislation and other prescribed

requirements must be retained. Prescribed requirements detail policies, procedures and

requirements of the Registrar in the respective jurisdiction. Examples of prescribed

requirements include but are not limited to notices to Land Registry customers, practice

manuals and practice directions. What type of evidence is required to be retained is

dependent on the type of transaction but may include statutory declarations, trust deeds,

agency agreements or evidence of death.


5 HOW IS EVIDENCE TO BE RETAINED?

Evidence could be electronic or paper evidence. It could be stored electronically and/or in

paper. It could be stored by the Subscriber and/or an agent on a Subscriber’s behalf.

However, the medium and means in which documents supporting the conveyancing

transaction are to be retained is to be determined by a Subscriber in light of the possible

need to produce the evidence to a Court and any privacy obligations they are required to

abide by. Evidence should be accessible, legible, and safely and securely stored

whichever medium is used.


Q1: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A1: Evidence should be kept which is sufficient to support the requirements and the

validity of the conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the right to deal of the transacting party, they

should be kept.

Q2: Can evidence be retained electronically?

A2: Yes. Evidence can be stored electronically. However, the medium and means in

which documents supporting the conveyancing transaction are to be retained is to

be determined by the Subscriber in light of the possible need to produce those

documents as evidence to a Court.

Q3: What would constitute “sufficient evidence” when the caveat is to protect

mortgagee’s interest? Would a copy of the loan agreement or mortgage

suffice, or would we need to retain a paper caveat on the same terms?

A3: There is no specific requirement to hold a paper Caveat on the same terms. Your

obligation is to ensure that you have evidence of authorisation to represent the client

and evidence to support the transaction that is being conducted. In the case of a

Caveat protecting a Mortgagees interest a Loan Agreement or Mortgage may be

deemed by a Registrar as being appropriate evidence of the transaction.

__________

1 ARNECC MPR Version 4 Guidance Note #6: Compliance Examinations – Updated May 2017


COMPLIANCE EXAMINATIONS

1. INTRODUCTION


• what a compliance examination is;

• why compliance examination is necessary;

• when a compliance examination will be conducted; and

• how a compliance examination will be conducted.




prescribed requirements.

2. WHAT IS A COMPLIANCE EXAMINATION?

Section 33 of the Electronic Conveyancing National Law provides the Registrar in each

jurisdiction with the power to undertake a compliance examination for the purpose of

ascertaining whether or not the Participation Rules have been complied with; or

investigating any suspected or alleged case of misconduct by a Subscriber (including a

former Subscriber).

Under section 34 of the Electronic Conveyancing National Law a Subscriber is obliged to

cooperate fully in a compliance examination and comply with any reasonable requirement

by the person conducting the compliance examination.

Schedule 5 of the Participation Rules sets out a procedure for the conduct of a compliance

examination. The procedure is outlined further in Section 5 below.

6


3. WHY IS A COMPLIANCE EXAMINATION NECESSARY?

A key objective of the Subscriber Compliance Program is to ensure the program assists

Subscribers in meeting their obligations and responsibilities under the Participation Rules

and to build trust and confidence in the electronic lodgment network.

4. WHEN WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Subscribers will be generally selected at random for compliance examination.

Priority will be given to conducting compliance examination on Subscribers:

• who are newly registered;

• who have never been subject to a compliance examination;

• whose last or previous compliance examination(s) demonstrated non-compliance with

the Participation Rules or misconduct with respect to the use of an electronic lodgment

network;

• who have been the subject of a notification to the Registrar.

Targeted compliance examinations will also be conducted where the Registrar identifies

any potential threat to the operation, security or integrity of the electronic lodgment network

or the titles register. For example:

• past instances of non-compliance with the Participation Rules; or

• the Registrar identifying a problem with a registry instrument or conveyancing

transaction during the examination of a registry instrument.

5. HOW WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Schedule 5 of the Participation Rules outlines the procedure for the conduct of a compliance

examination (the compliance examination procedure). The compliance examination

procedure is reflected in the information below.

5.1 Notice

A Subscriber will receive a notice including a Subscriber checklist (see Appendix) from the

Registrar.

The notice will:

• identify the registry instruments for which the compliance examination will be

conducted;

• request that the Subscriber provide documents and/or information that demonstrate

the Subscriber’s compliance with the Participation Rules including, the following:


client authorisation (refer to MPR Guidance Note # 1: Client Authorisation);

verification of identity (refer to MPR Guidance Note # 2: Verification of Identity);

verification of the right to deal (refer to MPR Guidance Note # 4: Right to Deal);

supporting evidence (refer to MPR Guidance Note # 5: Retention of evidence).

• state a time, no less than 10 business days after the giving of the notice, within which

the documents and/or information must be provided to the Registrar.

• outline how the documents and/or information must be provided to the Registrar.

Subscribers should be aware that if they fail, without reasonable excuse, to comply with the

notice the Registrar may suspend the Subscriber.

5.2 Examination by the Registrar

The Registrar will initially conduct a desktop examination of the documents and/or

information provided by the Subscriber for the registry instruments identified to determine

whether the Subscriber has complied with the relevant Participation Rules. The desktop

examination will, as a minimum, include the following:

• Client Authorisation form:

correct form and version used;

client details match the lodged registry instrument(s);

transaction details match the lodged registry instrument(s);

correctly signed by the client / client agent;

correctly signed by the Subscriber or its agent;

form completed including date;

form signed by the client/client agent at the time verification of identity is

conducted. If not:

- evidence of the steps taken to ensure form signed by the client/client agent provided;

- that evidence is satisfactory;

evidence of reasonable steps taken to verify the authority of each person

entering into a client authorisation on behalf of a client to both bind the client to

the client authorisation and to the conveyancing transaction(s) the subject of the

client authorisation;

form signed by the client/client agent before the Subscriber digitally signed the

registry instruments or other electronic documents.

• Verification of identity:

verification of identity has been undertaken for all applicable persons outlined

in Participation Rule 6.5.1;

evidence of the steps taken to verify identity provided;


evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of identity in relation to the signing of any client

authorisation form is satisfactory;

timing of verification of identity in relation to the signing of the registry

instrument(s) is satisfactory.

• Verification of the right to deal:

evidence of the steps taken to verify right to deal provided;

evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of right to deal in relation to the signing of any client

authorisation form is satisfactory;

timing of verification of right to deal in relation to the signing of the lodged

dealing(s) is satisfactory.

• Supporting evidence (other than supporting evidence required above):

any evidence required by the duty authority provided and satisfactory;

any evidence required by statute or prescribed requirements provided and

satisfactory;

copy of any mortgage granted by mortgagor provided;

mortgage granted by mortgagor on same terms as that of the lodged registry

instrument;

mortgage granted by mortgagor correctly signed and executed.

Subscribers should refer to the relevant Model Participation Rules Guidance Note for further

guidance regarding compliance with the Participation Rules for each of the above.

5.3 Outcome of Compliance Examination

The Subscriber will be notified of the outcome of the compliance examination in writing

within 10 business days of the completion of the compliance examination. The outcome

will be one of the following:

• notification that the compliance examination revealed compliance with the

Participation Rules and accordingly no further action is required; or

• notification that the compliance examination revealed non-compliance with the

Participation Rules and notification of the next steps, for example:

details of actions required to be taken to remedy the non-compliance with the



that a site visit is required and a proposed date and time, more than ten business

days after the date of the notification, for the site visit to occur.

If the compliance examination results in the Registrar knowing or having reasonable

grounds to suspect/believe that a Suspension Event or Termination Event has occurred,

the Suspension and Termination Procedure in Schedule 7 of the Participation Rules may

commence.

6. FREQUENTLY ASKED QUESTIONS

Q1: As a Subscriber who operates nationally, will each jurisdiction follow the same

approach in undertaking compliance examinations?

A1: The Australian Registrars’ National Electronic Conveyancing Council has developed

a Subscriber Compliance Program so that compliance examinations are co-ordinated

and conducted consistently across all operating jurisdictions in accordance with this

Guidance Note.

___________


Appendix

SUBSCRIBER COMPLIANCE EXAMINATION CHECKLIST

Registry Instrument / Document:

Client Authorisation

☐ Copy of Client Authorisation provided

☐ Evidence provided of the steps taken to ensure form signed by the Client/Client Agent

☐ Evidence provided of steps taken to verify the authority of each Person entering into a Client Authorisation on behalf of a Client to both bind the Client to the Client Authorisation and to the Conveyancing Transaction(s) the subject of the Client Authorisation

Verification of Identity

☐ Evidence provided of the steps taken to verify identity of the Client(s) and/or the mortgagor(s)

Verification of Right to Deal

☐ Evidence provided of the steps taken to verify right to deal of the Client(s) and/or the mortgagor(s)

Supporting evidence

Copies of all supporting evidence provided including:

☐ Any evidence required by the Duty Authority

☐ If applicable, copy of any mortgage granted by mortgagor

☐ Any evidence required by Prescribed Requirements

I certify that the documents and/or information provided in accordance with this checklist are to the Subscriber's knowledge, information and belief correct, complete and not false or misleading.

Name:

Subscriber Name:

Signature:

Date:

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