Electronic Conveyancing Act 2014
CONTENTS
Part 1 — Preliminary
1.Short title5
2.Commencement5
3.Terms used5
4.Interpretation generally5
5.Exclusion of interpretation legislation of this jurisdiction5
6A.Numbering5
6.Purpose5
7A.Act binds the State5
Part 2 — Electronic conveyancing
Division 1 — Electronic lodgment
7.Documents may be lodged electronically (cf. ECNL s. 7)5
8.Registrar, Commissioner or Authority to process documents lodged electronically (cf. ECNL s. 8)5
9.Status of electronic registry instruments (cf. ECNL s. 9)5
Division 2 — Client authorisations and digital signatures
Subdivision 1 — Client authorisations
10.Client authorisations (cf. ECNL s. 10)5
11.Effect of client authorisation (cf. ECNL s. 11)5
Subdivision 2 — Digital signatures
12.Reliance on, and repudiation of, digital signatures (cf. ECNL s. 12)5
Part 3 — Electronic Lodgment Networks
Division 1 — Preliminary
13.Electronic Lodgment Network (cf. ECNL s. 13)5
Division 2 — Operation of Electronic Lodgment Networks
14.Authority may provide and operate ELN (cf. ECNL s. 14)5
15.Authority may approve ELNO to provide and operate ELN (cf. ECNL s. 15)5
16.Conditions of approval as ELNO (cf. ECNL s. 16)5
17.Effect of approval as ELNO (cf. ECNL s. 17)5
18.ELNO required to comply with operating requirements (cf. ECNL s. 18)5
19.Renewal of approval as ELNO (cf. ECNL s. 19)5
20.Revocation or suspension of approval as ELNO (cf. ECNL s. 20)5
21.Monitoring of activities in ELN (cf. ECNL s. 21)5
Division 3 — Operating requirements and participation rules
22.Operating requirements for ELNOs (cf. ECNL s. 22)5
23.Participation rules (cf. ECNL s. 23)5
24.Registrar to have regard to nationally agreed model operating requirements and participation rules (cf. ECNL s. 24)5
25.Publication of operating requirements and participation rules (cf. ECNL s. 25)5
26.Subscribers required to comply with participation rules (cf. ECNL s. 26)5
27.Waiving compliance with operating requirements or participation rules (cf. ECNL s. 27)5
Division 4 — Appeals
28.Appeal against decisions of Authority or Registrar (cf. ECNL s. 28)5
29.Determination of appeal (cf. ECNL s. 29)5
30A.Responsible tribunal to consider Government policy relating to ELNOs5
30.Costs (cf. ECNL s. 30) (not used)5
31.Relationship with Act establishing responsible tribunal (cf. ECNL s. 31)5
Division 5 — Compliance examinations
32.Definitions (cf. ECNL s. 32)5
33.Compliance examinations (cf. ECNL s. 33)5
34.Obligation to cooperate with examination (cf. ECNL s. 34)5
35.Registrar may refer matter to appropriate authority (cf. ECNL s. 35)5
36.Land titles legislation not limited (cf. ECNL s. 36)5
Part 4 — Miscellaneous
Division 1 — Delegation
37.Delegation (cf. ECNL s. 37)5
Division 2 — Liability of Authority, Registrar and Commissioner
38.No obligation to monitor ELN or conduct compliance examination (cf. ECNL s. 38)5
39.No compensation (cf. ECNL s. 39)5
40.Authority and Registrar not responsible for additional services provided by ELNO (cf. ECNL s. 40)5
Division 3 — Relationship with other laws
41.Other laws relating to electronic transactions not affected (cf. ECNL s. 41)5
42.Powers may be exercised for purposes of this Act (cf. ECNL s. 42)5
Part 5 — General
43.Notification, tabling and disallowance of operating requirements and participation rules5
44.Proof of operating requirements and participation rules5
45.Giving false or misleading information, answer or document an offence5
46.Regulations5
47.Review of Act5
Part 6 — Duties Act 2008 amended
48.Act amended5
49.Section 3 amended5
50.Section 22A inserted5
22A.Terms used5
51.Section 22 amended5
52.Section 23 amended5
53.Section 107 amended5
54.Section 273A inserted5
273A.Duty endorsement: electronic conveyancing instruments5
55.Section 278 amended5
Part 7 — Settlement Agents Act 1981 amended
56.Act amended5
57.Section 46 amended5
58.Schedule 2 amended5
Part 8 — Taxation Administration Act 2003 amended
59.Act amended5
60.Section 114 amended5
Part 9 — Transfer of Land Act 1893 amended
61.Act amended5
62.Section 3 amended5
63.Section 4 amended5
64.Section 14 replaced5
14.Commissioner and Registrar may exercise functions electronically5
65.Section 30 amended5
66.Section 48B amended5
67.Section 52 amended5
68.Section 54 amended5
69.Section 57 amended5
70.Section 74 amended5
71.Section 74B amended5
72.Section 81W amended5
73.Section 105 amended5
74.Section 127A inserted5
127A.Subsequent mortgages or charges5
75.Section 129A amended5
76.Section 137 amended5
77.Section 180 replaced5
180.Commissioner may summons people to provide information5
181A.Commissioner and Registrar may require supporting documentation or evidence or verification5
181B.Commissioner and Registrar may require verification by statutory declaration5
78.Section 181 amended5
79.Sections 182A and 182B inserted5
182A.Commissioner and Registrar may determine requirements5
182B.Publication of requirements5
80.Section 188 amended5
81.Section 189 amended5
82.Sections 192A to 192E inserted5
192A.Registrar entitled to assume that lodging party has certain authorities from other interested parties5
192B.Registrar may refuse lodgment for non‑compliance with certain requirements5
192C.Commissioner may refuse to take action if requirements not complied with5
192D.Registrar may refuse registration, noting or recording for non‑compliance with requirements5
192E.Notice of non‑compliance under section 192D5
83.Section 192 amended5
84.Section 193 amended5
85.Section 198 amended5
86.Sections 214 to 214B replaced5
214.Offences5
214A.Effect of fraud5
87.Sections 232A and 232B inserted5
232A.Effect of dealing with duplicate certificate of title in accordance with requirements as alternative to production5
232B.Effect of using alternative means to provide consent, permission or approval5
88.Section 234 amended5
89.Sections 238A and 238B inserted5
238A.Registrar’s copy to be definitive5
238B.Resubmission of document lodged electronically if data capture defective5
90.Section 239 amended5
91.Section 239B amended5
92.Section 240 amended5
93.Section 240A replaced5
240A.Notification of change of address, fax number or way of receiving notices electronically5
94.Part XV inserted5
Part XV — Transitional provisions for Electronic Conveyancing Act 2014
244.Term used: amending Act5
245.Transitional provision for section 52(2)5
246.Transitional provision for section 105(4)5
247.Transitional provision for section 182A (requirements)5
95.Twenty‑fifth Schedule deleted5
Schedule 1 — Miscellaneous provisions relating to interpretation
Part 1 — Preliminary
1.Displacement of Schedule by contrary intention5
Part 2 — General
2.Act to be construed not to exceed legislative power of Legislature5
3.Every section to be a substantive enactment5
4.Material that is, and is not, part of this Act5
5.References to particular Acts and to enactments5
6.References taken to be included in Act citation etc.5
7.Interpretation best achieving Act’s purpose5
8.Use of extrinsic material in interpretation5
9.Effect of change of drafting practice5
10.Use of examples5
11.Compliance with forms5
Part 3 — Terms and references
12.Definitions5
13.Provisions relating to defined terms and gender and number5
14.Meaning of “may” and “must” etc.5
15.Words and expressions used in statutory instruments5
16.Effect of express references to bodies corporate and individuals5
17.Production of records kept in computers etc.5
18.References to this jurisdiction to be implied5
19.References to officers and holders of offices5
20.Reference to certain provisions of Act5
21.Reference to provisions of this Act or an Act is inclusive5
Part 4 — Functions and powers
22.Performance of statutory functions5
23.Power to make instrument or decision includes power to amend or repeal5
24.Matters for which statutory instruments may make provision5
25.Presumption of validity and power to make5
26.Appointments may be made by name or office5
27.Acting appointments5
28.Powers of appointment imply certain incidental powers5
29.Delegation of functions5
30.Exercise of powers before commencement5
Part 5 — Distance, time and age
31.Matters relating to distance, time and age5
Part 6 — Effect of repeal, amendment or expiration
32.Time of Act ceasing to have effect5
33.Repealed Act provisions not revived5
34.Saving of operation of repealed Act provisions5
35.Continuance of repealed provisions5
36.Act and amending Acts to be read as one5
Part 7 — Instruments under Act
37.Schedule applies to statutory instruments5
Defined terms
Electronic Conveyancing Act 2014
An Act to —
·provide for electronic conveyancing in Western Australia by enacting provisions that correspond to the Electronic Conveyancing National Law; and
·make consequential and other amendments to the Duties Act 2008, Settlement Agents Act 1981, Taxation Administration Act 2003 and Transfer of Land Act 1893,
and for related purposes.
[Assented to 24 March 2014]
The Parliament of Western Australia enacts as follows:
This is the Electronic Conveyancing Act 2014.
This Act comes into operation as follows —
(a)Part 1 (other than sections 3 to 7A) — on the day on which this Act receives the Royal Assent;
(b)the following provisions — on the day after that day —
(i)sections 3 to 7A;
(ii)Parts 3 to 5;
(iii)Schedule 1;
(c)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
(1)In this Act —
ARNECC means the Australian Registrars’ National Electronic Conveyancing Council established by the Intergovernmental Agreement;
associated financial transaction means a transaction of a financial nature that is associated with a conveyancing transaction;
Examples
1.The payment of the purchase price for the sale and purchase of an interest in land.
2.The advancing of money in return for the granting of a mortgage or charge over an interest in land.
3.The payment of any tax, duty (for example, stamp duty), fee or charge payable in respect of the conveyancing transaction.
Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;
client authorisation has the meaning given in section 10;
Commissioner means the Commissioner of Titles under the Transfer of Land Act 1893 section 5;
compliance examination has the meaning given in section 33;
conveyancing transaction means a transaction that involves one or more parties and the purpose of which is —
(a)to create, transfer, dispose of, mortgage, charge, lease or deal with in any other way an estate or interest in land; or
(b)to get something registered, noted or recorded in the titles register; or
(c)to get the registration, note or record of something in the titles register changed, withdrawn or removed;
corresponding law —
(a)means a law of a jurisdiction that corresponds to the ECNL; and
(b)includes a law of a jurisdiction that is prescribed by regulations made under this Act as a corresponding law;
digitally sign, in relation to an electronic communication or a document, means create a digital signature for the communication or document;
digital signature means encrypted electronic data intended for the exclusive use of a particular person as a means of identifying that person as the sender of an electronic communication or the signer of a document;
Electronic Conveyancing National Law or ECNL means the law set out in the Appendix to the Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) as that Appendix is in force from time to time;
ELN means Electronic Lodgment Network — see section 13;
ELNO means Electronic Lodgment Network Operator — see section 15;
Intergovernmental Agreement means the Intergovernmental Agreement for a National Electronic Conveyancing Law between the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania and the Northern Territory of Australia, that came into operation on 21 November 2011 and as in force from time to time;
jurisdiction means State;
land titles legislation —
(a)means these Acts —
(i)the Licensed Surveyors Act 1909;
(ii)the Strata Titles Act 1985;
(iii)the Transfer of Land Act 1893;
(iv)any other Act prescribed by regulations made under this Act for the purposes of this definition;
and
(b)includes any subsidiary legislation (as defined in the Interpretation Act 1984 section 5) made under any of those Acts; and
(c)also includes any other written law (as defined in the Interpretation Act 1984 section 5) that authorises, permits or requires something —
(i)to be lodged for registration, noting or recording in the titles register; or
(ii)to be registered, noted or recorded in the titles register;
and
(d)also includes any Commonwealth Act (as defined in the Interpretation Act 1984 section 5) that authorises, permits or requires something —
(i)to be lodged for registration, noting or recording in the titles register; or
(ii)to be registered, noted or recorded in the titles register;
and
(e)also includes any legislative instrument (within the meaning of the Legislative Instruments Act 2003 (Commonwealth)) made under any Commonwealth Act to which paragraph (d) applies;
law, in relation to a Territory, means a law of, or in force in, that Territory;
law of this jurisdiction includes the principles and rules of common law and equity to the extent that they have effect in this jurisdiction from time to time;
lodge includes deposit, present and file;
operating requirements means the requirements determined under section 22;
participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and in which —
(a)the ECNL applies as a law of the jurisdiction, either with or without modifications; or
(b)there is a corresponding law;
participation agreement, in relation to an ELN, means —
(a)if an ELNO provides and operates the ELN, an agreement between the ELNO and another person under which the other person is authorised to use that ELN; or
(b)if the Authority provides and operates the ELN, an agreement between the Authority and another person under which the other person is authorised to use that ELN;
participation rules means the rules determined under section 23;
Registrar means the Registrar of Titles under the Transfer of Land Act 1893 section 7;
registry instrument means —
(a)any document that may be lodged under the land titles legislation for the purpose of —
(i)creating, transferring, disposing of, mortgaging, charging, leasing or dealing with in any other way an estate or interest in land; or
(ii)getting something registered, noted or recorded in the titles register; or
(iii)getting the registration, note or record of something in the titles register changed, withdrawn or removed;
or
(b)a document that belongs to a class of document that —
(i)may be lodged under the land titles legislation; and
(ii)is prescribed by regulations made under this Act for the purposes of this definition;
responsible tribunal means the State Administrative Tribunal established under the State Administrative Tribunal Act 2004;
State includes a Territory;
subscriber means a person who is authorised under a participation agreement to use an ELN to complete conveyancing transactions on behalf of another person or on their own behalf;
Territory means the Australian Capital Territory or the Northern Territory of Australia;
this jurisdiction means the State of Western Australia;
titles register means —
(a)the Register referred to in the Transfer of Land Act 1893 section 48; or
(b)any register, database or system that —
(i)under another Act is a titles register for the purposes of this definition; or
(ii)is prescribed by regulations made under this Act or another Act for the purposes of this definition.
(2)A term used in this Act (other than Parts 5 to 9) or a statutory instrument and also in the land titles legislation has the same meaning in this Act (other than Parts 5 to 9) or the statutory instrument as it has in that legislation, unless —
(a)the term is defined in this Act or the statutory instrument; or
(b)the context requires otherwise.
Schedule 1 applies in relation to this Act (other than Parts 5 to 9).
5.Exclusion of interpretation legislation of this jurisdiction
The Interpretation Act 1984 does not apply to —
(a)this Act (other than Parts 5 to 9); or
(b)the instruments made under this Act (other than regulations made under section 46).
(1)This Act is numbered in order to maintain consistent numbering between the provisions of Parts 2 to 4 of the ECNL and the corresponding provisions of Parts 2 to 4.
(2)A section in Parts 2 to 4 that corresponds to a section of the ECNL includes in its heading a reference to “ECNL” together with a reference to the corresponding ECNL provision.
(3)If the ECNL includes a section that is not required in Parts 2 to 4, the section number and heading appearing in the ECNL are included in Parts 2 to 4 even though the body of the section is omitted.
(4)Schedule 1 corresponds to Schedule 1 to the ECNL.
(1)The purpose of this Act is to provide for electronic conveyancing in Western Australia by enacting provisions that correspond to the Electronic Conveyancing National Law and in that way achieve the object of that Law.
(2)The object of the Electronic Conveyancing National Law is to promote efficiency throughout Australia in property conveyancing by providing a common legal framework that —
(a)enables documents in electronic form to be lodged and processed under the land titles legislation of each participating jurisdiction; but
(b)does not derogate from the fundamental principles of the Torrens system of land title as incorporated in the land titles legislation of each participating jurisdiction, such as indefeasibility of title.
(1)This Act binds the State.
(2)In this section —
State means the Crown in right of this jurisdiction, and includes —
(a)the Government of this jurisdiction; and
(b)a Minister of the Crown in right of this jurisdiction; and
(c)a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
Part 2 — Electronic conveyancing
Division 1 — Electronic lodgment
7.Documents may be lodged electronically (cf. ECNL s. 7)
(1)A document may be lodged electronically for the purposes of the land titles legislation if the document is lodged —
(a)in a form approved by the Registrar; and
(b)by means of an ELN provided and operated under this Act.
(2)An approval for the purposes of subsection (1)(a) may be given under the land titles legislation or in some other way that the Registrar considers appropriate.
8.Registrar, Commissioner or Authority to process documents lodged electronically (cf. ECNL s. 8)
(1)If a document is lodged electronically in accordance with section 7, the Registrar, the Commissioner or the Authority (whichever is appropriate) must receive and process the document in accordance with the land titles legislation.
(2)This section does not limit or affect the need for the document to comply with the requirements of the land titles legislation, this Act or any other law of this jurisdiction.
9.Status of electronic registry instruments (cf. ECNL s. 9)
(1)A registry instrument that is in a form in which it can be lodged electronically under section 7 has the same effect as if that instrument were in the form of a paper document.
(2)A registry instrument that is digitally signed by a subscriber in accordance with the participation rules applicable to that instrument has the same effect as if a paper document having the equivalent effect had been executed by —
(a)if the subscriber signs under a client authorisation, each person for whom the subscriber signs in accordance with the client authorisation; or
(b)the subscriber in any other case.
(3)If a registry instrument is digitally signed in accordance with the participation rules applicable to that instrument —
(a)the instrument is to be taken to be in writing for the purposes of every other law of this jurisdiction; and
(b)the requirements of any other law of this jurisdiction relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.
Division 2 — Client authorisations and digital signatures
Subdivision 1 — Client authorisations
10.Client authorisations (cf. ECNL s. 10)
(1)A client authorisation is a document —
(a)that is in the form required by the participation rules; and
(b)by which a party to a conveyancing transaction authorises a subscriber to do one or more things on that party’s behalf in connection with the transaction so that the transaction, or part of the transaction, can be completed electronically.
(2)The following are examples of the things that a client authorisation may authorise a subscriber to do —
(a)to digitally sign registry instruments or other documents;
(b)to present registry instruments or other documents for lodgment electronically;
(c)to authorise or complete any associated financial transaction.
11.Effect of client authorisation (cf. ECNL s. 11)
(1)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 of this jurisdiction relating to powers of attorney.
(2)If a client authorisation is properly completed, the requirements of any other law of this jurisdiction relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.
(3)Subsections (1) and (2) do not limit or affect the application of any law of this jurisdiction relating to powers of attorney in relation to —
(a)the execution of a client authorisation under a power of attorney; or
(b)a client authorisation executed under a power of attorney.
Subdivision 2 — Digital signatures
12.Reliance on, and repudiation of, digital signatures (cf. ECNL s. 12)
(1)If a subscriber’s digital signature is created for a registry instrument or other document in connection with a conveyancing transaction, then —
(a)unless that subscriber repudiates that digital signature, that registry instrument or other document is to be taken to be signed by that subscriber; and
(b)unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, on —
(i)that subscriber; and
(ii)all other persons (if any) for whom that subscriber acts under a client authorisation with respect to that conveyancing transaction;
and
(c)unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, for the benefit of —
(i)each of the parties to that conveyancing transaction; and
(ii)each subscriber who acts under a client authorisation with respect to that conveyancing transaction; and
(iii)any person claiming through or under any person to whom subparagraph (i) applies; and
(iv)the Authority, the Registrar and the Commissioner, once that registry instrument or other document is lodged electronically in accordance with section 7;
and
(d)that subscriber cannot repudiate that digital signature except in the circumstances set out in subsection (4).
(2)Subsection (1) applies regardless of —
(a)who created the subscriber’s digital signature; and
(b)the circumstances (including fraud) in which the subscriber’s digital signature was created.
(3)Subsection (1) does not prevent the unsigning of a registry instrument or other document.
(4)Despite subsections (1) and (2), a subscriber can repudiate the subscriber’s digital signature with respect to a registry instrument or other document if the subscriber establishes —
(a)that the digital signature was not created by the subscriber; and
(b)that the digital signature was not created by a person who, at the time the subscriber’s digital signature was created for the registry instrument or other document —
(i)was an employee, agent, contractor or officer (however described) of the subscriber; and
(ii)had the subscriber’s express or implied authority to create the subscriber’s digital signature for any document or documents;
and
(c)that neither of the following enabled the subscriber’s digital signature to be created for the registry instrument or other document —
(i)a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to fully comply with the requirements of the participation rules;
(ii)a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to take reasonable care.
(5)For the purposes of subsection (4)(b)(ii), it does not matter whether the authority was —
(a)general; or
(b)limited or restricted to documents of a particular class or to a particular document or in any other way.
Part 3 — Electronic Lodgment Networks
13.Electronic Lodgment Network (cf. ECNL s. 13)
(1)An Electronic Lodgment Network (ELN) is an electronic system that enables the lodging of registry instruments and other documents in electronic form for the purposes of the land titles legislation.
(2)An ELN may also enable the preparation of registry instruments and other documents in electronic form for lodging under the land titles legislation.
Division 2 — Operation of Electronic Lodgment Networks
14.Authority may provide and operate ELN (cf. ECNL s. 14)
The Authority may provide and operate an ELN.
15.Authority may approve ELNO to provide and operate ELN (cf. ECNL s. 15)
(1)The Authority may approve a person as an Electronic Lodgment Network Operator (ELNO) to provide and operate an ELN.
(2)The Authority must not approve a person under this section unless the person meets the qualifications for approval set out in the operating requirements.
(3)An approval under this section must be in writing and must state the period for which it is to have effect.
(4)The Authority may grant more than one approval under this section.
16.Conditions of approval as ELNO (cf. ECNL s. 16)
(1)The Authority may attach conditions to an approval under section 15, and those conditions must be specified in the approval.
(2)The Authority may at any time, by notice in writing to the ELNO, vary or revoke the conditions attached to the approval of that ELNO or attach new or additional conditions.
17.Effect of approval as ELNO (cf. ECNL s. 17)
(1)A person who is approved as an ELNO under section 15 may provide and operate an ELN —
(a)for the period stated in the approval; and
(b)subject to the conditions (if any) attached to the approval; and
(c)in accordance with the operating requirements.
(2)Subsection (1) is subject to sections 19 and 20.
(3)In performing functions as an ELNO, a person approved under section 15 is not and does not represent the State, and is not an agent of the State.
(4)The approval of a person as an ELNO does not restrict or prevent the provision, by that person, of services additional to those provided by the ELN.
(5)Subsection (4) is subject to the operating requirements.
18.ELNO required to comply with operating requirements (cf. ECNL s. 18)
A person approved as an ELNO under section 15 must comply with the operating requirements.
19.Renewal of approval as ELNO (cf. ECNL s. 19)
(1)The Authority may renew an approval of a person as an ELNO under section 15 if the Authority is satisfied that the person continues to meet the qualifications for approval set out in the operating requirements.
(2)The renewal of an approval under this section must be in writing and must state the period for which the renewal is to have effect.
(3)In renewing an approval, the Authority may exercise the powers in section 16 to attach conditions to the approval or vary or revoke conditions attached to the approval.
20.Revocation or suspension of approval as ELNO (cf. ECNL s. 20)
The Authority may revoke or suspend the approval of a person as an ELNO in the circumstances set out in the operating requirements.
21.Monitoring of activities in ELN (cf. ECNL s. 21)
(1)The Authority, the Registrar and the Commissioner or any of them may monitor activities in an ELN for any purpose, including (without limitation) for the purpose of maintaining the integrity of the titles register.
(2)This section does not limit Division 5.
Division 3 — Operating requirements and participation rules
22.Operating requirements for ELNOs (cf. ECNL s. 22)
(1)The Registrar may determine, in writing, requirements (operating requirements) relating to —
(a)the operation of an ELNO; and
(b)the provision and operation, by an ELNO, of an ELN.
(2)The operating requirements may (without limitation) include provisions relating to the following matters —
(a)the financial standing of an ELNO;
(b)compliance with the participation rules, including (without limitation) —
(i)requiring an ELNO to use a participation agreement when authorising persons to use an ELN; and
(ii)requiring participation agreements to incorporate the participation rules;
(c)the technical and operational requirements for an ELN;
(d)the insurance cover to be held by an ELNO;
(e)the circumstances in which the Authority may suspend or revoke the approval of a person as an ELNO;
(f)the giving of directions to an ELNO by the Authority or the Registrar, for example a direction to restrict, suspend or terminate a subscriber’s or other person’s use of an ELN.
23.Participation rules (cf. ECNL s. 23)
(1)The Registrar may determine, in writing, rules relating to the use of an ELN (participation rules).
(2)The participation rules may (without limitation) include provisions relating to the following matters —
(a)the eligibility criteria for subscribers;
(b)the obligations of subscribers, including (without limitation) any representations or warranties they are required to give;
(c)the circumstances in which a subscriber’s authority to use the ELN may be restricted, suspended or terminated;
(d)client authorisations;
(e)the obligations of subscribers to verify the identity of their clients;
(f)the certification of registry instruments and other documents for use in connection with the ELN;
(g)digital signing;
(h)the retention of documents created or obtained in connection with a subscriber’s use of an ELN;
(i)compliance by subscribers with the participation rules, including (without limitation) how subscribers demonstrate compliance with the rules, the procedures for notifying non‑compliance and how non‑compliance may be remedied.
24.Registrar to have regard to nationally agreed model operating requirements and participation rules (cf. ECNL s. 24)
(1)In this section —
model provisions means any model operating requirements or model participation rules from time to time developed and published by ARNECC.
(2)In determining operating requirements and participation rules under this Act, and in determining changes to those requirements or rules, the Registrar must have regard to the desirability of maintaining consistency with any model provisions.
25.Publication of operating requirements and participation rules (cf. ECNL s. 25)
(1)The Registrar must ensure that the following are publicly available —
(a)the current operating requirements and participation rules;
(b)all superseded versions of the operating requirements and participation rules.
(2)The operating requirements and participation rules, and any changes to either of them, must be made publicly available at least 20 business days before the operating requirements or participation rules or, as the case requires, the changes to them take effect.
(3)However, changes to the operating requirements or participation rules may take effect within a shorter period (including immediately on being made publicly available), if the Registrar is satisfied that the changes need to take effect urgently because an emergency situation exists.
(4)For the purposes of subsection (3), an emergency situation exists if the Authority, the Registrar or the Commissioner considers that, because of the occurrence of an event or the existence of particular circumstances, the operation, security, integrity or stability of an ELN or the titles register or the land titles system is being, or is likely to be, jeopardised.
(5)Documents may be made publicly available in accordance with this section in any manner the Registrar considers appropriate, including (without limitation) by means of a website.
(6)It is sufficient compliance with subsection (1)(b) if a superseded version of the operating requirements or participation rules (other than the most recently superseded version) is publicly available only on request made to the Registrar.
26.Subscribers required to comply with participation rules (cf. ECNL s. 26)
(1)A subscriber who is authorised under a participation agreement to use an ELN must comply with the participation rules relating to that ELN.
(2)If a subscriber contravenes those participation rules —
(a)if the Authority operates the ELN, the Authority may restrict, suspend or terminate the subscriber’s use of the ELN;
(b)if an ELNO operates the ELN, the Authority or the Registrar may direct the ELNO to restrict, suspend or terminate the subscriber’s use of the ELN.
(3)Subsection (2) does not limit or affect any right, power, authority or remedy that the Authority, the Registrar or an ELNO has under the operating requirements, the participation rules, a participation agreement or any other law of this jurisdiction in relation to contravention of the participation rules.
27.Waiving compliance with operating requirements or participation rules (cf. ECNL s. 27)
(1)The Authority or the Registrar may waive compliance with all or any provisions of the operating requirements if the Authority or, as the case requires, the Registrar is satisfied that granting the waiver is reasonable in all the circumstances.
(2)The Registrar may waive compliance with all or any provisions of the participation rules if the Registrar is satisfied that granting the waiver is reasonable in all the circumstances.
(3)A waiver under this section may —
(a)be total or partial; and
(b)apply generally to all persons, or be limited in its application to particular persons or particular classes of persons; and
(c)apply generally or be limited in its application by reference to specified exceptions or factors; and
(d)apply indefinitely or for a specified period; and
(e)be unconditional or subject to conditions or restrictions.
28.Appeal against decisions of Authority or Registrar (cf. ECNL s. 28)
(1)A person who is the subject of any of the following decisions (an appellable decision) may require the Authority or the Registrar (whichever is the decision‑maker) to provide, in writing, the grounds for the decision —
(a)a decision by the Authority to refuse to approve the person as an ELNO;
(b)a decision by the Authority to refuse to renew the person’s approval as an ELNO;
(c)a decision by the Authority to suspend the person’s approval as an ELNO;
(d)a decision by the Authority to revoke the person’s approval as an ELNO;
(e)a decision by the Authority to attach a condition to the person’s approval as an ELNO, or to vary or revoke a condition of the person’s approval as an ELNO, if the attachment, variation or revocation of the condition is done without the person’s agreement;
(f)a decision by the Authority to restrict, suspend or terminate the person’s use, as a subscriber, of an ELN operated by the Authority;
(g)a decision by the Authority or the Registrar to direct an ELNO to restrict, suspend or terminate the person’s use, as a subscriber, of the ELN operated by the ELNO.
(2)A person who is the subject of an appellable decision and who has received written grounds for the decision from the Authority or the Registrar under subsection (1) or otherwise may appeal against the decision to the responsible tribunal.
29.Determination of appeal (cf. ECNL s. 29)
(1)After hearing the appeal, the responsible tribunal may —
(a)confirm the appellable decision; or
(b)amend the appellable decision; or
(c)substitute another decision for the appellable decision.
(2)In amending the appellable decision or substituting another decision for the appellable decision, the responsible tribunal has the same powers as the Authority or, as the case requires, the Registrar under this Act.
30A.Responsible tribunal to consider Government policy relating to ELNOs
(1)This section applies to an appeal to the responsible tribunal against a decision referred to in section 28(1)(b).
(2)The State Administrative Tribunal Act 2004 section 28 (section 28) applies to and in relation to an appeal to which this section applies as if a direction given to the Authority under the Land Information Authority Act 2006 section 65 were a statement of policy of the kind referred to in section 28.
(3)However, subsection (2) does not apply unless, at the time of the decision to which the appeal relates, the direction had been —
(a)either —
(i)laid before each House of Parliament in accordance with the Land Information Authority Act 2006 section 65(2); or
(ii)dealt with under section 91 of that Act;
and
(b)published in the Gazette, even though this is not required by that Act.
Note:There is no equivalent to this section in the ECNL.
30.Costs (cf. ECNL s. 30) (not used)
31.Relationship with Act establishing responsible tribunal (cf. ECNL s. 31)
This Division —
(a)applies despite any provision to the contrary of the Act that establishes or continues the responsible tribunal; but
(b)does not otherwise limit —
(i)that Act; or
(ii)any rules, regulations or other instrument regulating the practice or procedure of the responsible tribunal.
Division 5 — Compliance examinations
32.Definitions (cf. ECNL s. 32)
In this Division —
ELNO includes a former ELNO;
subscriber includes a former subscriber.
33.Compliance examinations (cf. ECNL s. 33)
(1)The Registrar may, on receiving a request or complaint from any person or on the Registrar’s own initiative, conduct an investigation (compliance examination) under this Part —
(a)in relation to an ELNO for either or both of the following purposes —
(i)ascertaining whether or not the operating requirements are being, or have been, complied with;
(ii)investigating any suspected or alleged case of misconduct with respect to the operation of an ELN;
(b)in relation to a subscriber for either or both of the following purposes —
(i)ascertaining whether or not the participation rules are being, or have been, complied with;
(ii)investigating any suspected or alleged case of misconduct with respect to the use of an ELN.
(2)If the Authority or the Commissioner requests the Registrar to conduct a compliance examination, the Registrar must conduct a compliance examination in accordance with that request.
34.Obligation to cooperate with examination (cf. ECNL s. 34)
(1)An ELNO or a subscriber in relation to whom a compliance examination is being conducted must cooperate fully with the person conducting the compliance examination for the purpose of ensuring that the person is able to conduct a proper compliance examination.
(2)In particular, an ELNO or a subscriber must comply with any reasonable requirement by the person conducting the compliance examination —
(a)to furnish specified information or to produce specified documents for the purposes of the compliance examination; or
(b)to take specified action for the purposes of the compliance examination.
(3)If an ELNO fails, without reasonable excuse, to cooperate as required by this section, the Registrar or the Authority, or both, may take any action that the Registrar or, as the case requires, the Authority is authorised to take under the operating requirements and that the Registrar or, as the case requires, the Authority considers appropriate, which may include (without limitation) the suspension or revocation of the ELNO’s approval under section 20.
(4)If a subscriber fails, without reasonable excuse, to cooperate as required by this section, the Registrar may take any action that the Registrar is authorised to take under the operating requirements, the participation rules or the land titles legislation and that the Registrar considers appropriate.
(5)For the purposes of subsections (3) and (4), it is not a reasonable excuse for a person to fail to give stated information, answer a question or to produce a document that giving the information, answering the question or producing the document might tend to incriminate the person or make the person liable to a penalty.
(6)However, the following is not admissible in evidence against an individual in a criminal proceeding —
(a)information provided by an individual in compliance with a requirement made under this section;
(b)an answer given by an individual in response to a question asked under this section;
(c)a document produced by an individual in compliance with a requirement made under this section (other than a document to which subsection (7) applies);
(d)information directly or indirectly derived from —
(i)information mentioned in paragraph (a); or
(ii)an answer mentioned in paragraph (b); or
(iii)a document mentioned in paragraph (c) (other than a document to which subsection (7) applies).
(7)A document produced by an individual in compliance with a requirement made under this section is not inadmissible in evidence against the individual in a criminal proceeding on the ground that the document might incriminate the individual if the document is required to be kept under this Act, the land titles legislation, the operating requirements or the participation rules.
(8)Subsection (6) does not apply to —
(a)a proceeding about the false or misleading nature of anything in the information, answer or document; or
(b)a proceeding in which the false or misleading nature of the information, answer or document is relevant evidence.
35.Registrar may refer matter to appropriate authority (cf. ECNL s. 35)
(1)In this section —
appropriate authority —
(a)means a person, body or organisation who or which is empowered by a law of this jurisdiction or of another State or the Commonwealth to take investigatory, disciplinary or other action; and
(b)includes (without limiting paragraph (a)) —
(i)a law enforcement agency; and
(ii)a regulatory or disciplinary body for persons engaged in any profession, occupation, calling or business.
(2)Instead of conducting a compliance examination in relation to a matter, or at any time during a compliance examination or after the completion of a compliance examination in relation to a matter, the Registrar may refer the matter to an appropriate authority.
(3)If the Registrar refers a matter to an appropriate authority, the Registrar is not obliged to take any other action in relation to the matter.
36.Land titles legislation not limited (cf. ECNL s. 36)
Nothing in this Division limits or affects any provision of the land titles legislation that authorises or permits any investigation, inquiry or examination of any kind.
37.Delegation (cf. ECNL s. 37)
(1)The Authority, the Registrar or the Commissioner may delegate to any other person the power conferred by section 21 to monitor activities in an ELN.
(2)The Registrar may delegate to any other person any function under Part 3 Division 5.
Division 2 — Liability of Authority, Registrar and Commissioner
38.No obligation to monitor ELN or conduct compliance examination (cf. ECNL s. 38)
(1)Neither the Authority nor the Registrar nor the Commissioner is obliged to monitor activities in an ELN under section 21.
(2)The Registrar is not obliged to conduct or complete a compliance examination under Part 3 Division 5.
(3)Subsection (2) is subject to section 33(2).
39.No compensation (cf. ECNL s. 39)
No person is entitled to receive compensation for any loss or damage arising out of anything done or omitted in good faith in, or in connection with, the monitoring of activities in an ELN under section 21 or the conduct of a compliance examination under Part 3 Division 5, including (without limitation) —
(a)any decision made, in good faith, not to monitor activities in an ELN or not to conduct a compliance examination; and
(b)any decision made, in good faith, as to how activities in an ELN are to be monitored or how a compliance examination is to be conducted.
40.Authority and Registrar not responsible for additional services provided by ELNO (cf. ECNL s. 40)
The mere fact that an ELNO provides services that are additional to those provided by the ELN operated by that ELNO does not make the Authority or the Registrar responsible for the regulation or operation of those additional services.
Division 3 — Relationship with other laws
41.Other laws relating to electronic transactions not affected (cf. ECNL s. 41)
This Act is in addition to, and not in substitution for —
(a)the laws of this jurisdiction in relation to electronic transactions; and
(b)any other law of this jurisdiction that authorises or permits the use of electronic documents for the purposes of the land titles legislation.
42.Powers may be exercised for purposes of this Act (cf. ECNL s. 42)
If any provision of the land titles legislation empowers the making of an instrument of a legislative or administrative character, or the doing of any other act or thing, that power is to be construed (with all necessary changes) as including a general power to make instruments of that character, or to do that act or thing, for the purposes of this Act.
Note:There is no equivalent to this Part in the ECNL.
43.Notification, tabling and disallowance of operating requirements and participation rules
(1)In this section —
business day means a day that is not —
(a)a Saturday or Sunday; or
(b)a public holiday in the metropolitan region (as defined in the Planning and Development Act 2005 section 4(1)).
(2)This section applies to the following documents —
(a)operating requirements;
(b)participation rules;
(c)changes to operating requirements or participation rules.
(3)Where any document to which this section applies is made publicly available in accordance with section 25, the Registrar must, within 10 business days after the day on which the document is first made publicly available, cause to be published in the Gazette notice of —
(a)the making of the document; and
(b)where the document is publicly available.
(4)If notification of the making of a document to which this section applies is not published in the Gazette in accordance with subsection (3), the document ceases to have effect on the expiry of the 10th business day after the day on which the document was first made publicly available, but without affecting the validity or curing the invalidity of anything done or of the omission of anything in the meantime.
(5)A copy of a document to which this section applies must be laid before each House of Parliament within 6 sitting days following notification of the making of the document in the Gazette in accordance with subsection (3).
(6)If notification of the making of a document to which this section applies is published in the Gazette, the Interpretation Act 1984 section 42 applies as if the document were a regulation published in the Gazette.
44.Proof of operating requirements and participation rules
(1)In any proceedings in any court or before any person acting judicially, a copy of all or part of any operating requirements or participation rules appearing to be certified by the Registrar to be a true copy of those requirements or rules as at any date or during any period is sufficient evidence of those requirements or, as the case requires, those rules as at that date or during that period in the absence of proof to the contrary.
(2)The Registrar must make certified copies of the operating requirements and participation rules available on request and payment of the prescribed fee (if any).
45.Giving false or misleading information, answer or document an offence
(1)In this section —
authorised person means —
(a)the Authority; or
(b)the Registrar; or
(c)the Commissioner; or
(d)any person to whom any function of the Authority, the Registrar or the Commissioner is delegated under this Act or any other Act.
(2)A person must not do any of the things set out in subsection (4) under —
(a)this Act; or
(b)an instrument (as defined in Schedule 1 clause 12(1)) made under this Act.
Penalty: imprisonment for 10 years and a fine of $100 000.
Summary conviction penalty: imprisonment for 3 years and a fine of $40 000.
(3)An offence under subsection (2) is a crime.
(4)The things to which subsection (2) applies are —
(a)giving to an authorised person any information or answer that the person giving the information or answer knows —
(i)is false or misleading in a material particular; or
(ii)omits any matter or thing without which the information or answer is misleading;
(b)producing to an authorised person any document that the person producing the document knows to be false or misleading in a material particular.
(5)It is a defence to a charge of an offence under subsection (2) that involves doing the thing set out in subsection (4)(b) if the accused proves that, when producing the document to an authorised person, the accused either —
(a)indicated the respect in which the document was false or misleading and, where practicable, provided correct information; or
(b)accompanied the document with a written certificate —
(i)stating that the document was, to the accused’s knowledge, false or misleading in a material particular; and
(ii)setting out, or referring to, the material particular in which the document was, to the accused’s knowledge, false or misleading.
(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.
(2)If a regulation made under this section is inconsistent with any subsidiary legislation made under the land titles legislation, the regulation made under this section prevails to the extent of the inconsistency.
(1)The Minister must carry out a review of the operation and effectiveness of this Act —
(a)as soon as is practicable after the period of 7 years beginning on the day on which section 7 comes into operation (the review period); or
(b)at any earlier time that the Minister considers appropriate.
(2)The Minister must —
(a)prepare a report based on the review; and
(b)cause the report to be laid before each House of Parliament as soon as is practicable after it is prepared, but in any event —
(i)if the review is carried out after the review period, not more than 12 months after that period; or
(ii)if the review is carried out earlier than that, not more than 6 months after the review is completed.
Part 6 — Duties Act 2008 amended
This Part amends the Duties Act 2008.
In section 3 in the definition of transfer duty statement delete “section 22;” and insert:
section 22(1);
At the beginning of Chapter 2 Part 4 Division 2 insert:
In this Division —
digitally sign has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
electronic conveyancing instrument means an instrument in electronic form that, on being digitally signed, has, under the Electronic Conveyancing Act 2014 section 9(2), the same effect as if a paper document having the equivalent effect had been executed as provided in section 9(2)(a) or (b) of that Act.
(1)In section 22 delete “The person” and insert:
(1)The person
(2)At the end of section 22 insert:
(2)For the purposes of subsection (1) and section 23(1)(a), an electronic conveyancing instrument that has been digitally signed is to be taken to be an instrument in hard copy form.
After section 23(2) insert:
(3)If a transaction is effected by an electronic conveyancing instrument, the person liable to pay duty on the transaction is to be taken to have complied with subsection (1) when the instrument is digitally signed.
After section 107(2) insert:
(3A)To avoid doubt, for the purposes of subsection (2), a dutiable transaction has not been, and will not be, carried into effect if —
(a)the transaction is a transfer of dutiable property; and
(b)the transaction is effected or evidenced by an electronic conveyancing instrument (as defined in section 22A); and
(c)under section 42, no duty is chargeable on the transfer; and
(d)the instrument, having been digitally signed (as defined in the Electronic Conveyancing Act 2014 section 3(1)) is unsigned in accordance with the participation rules (as so defined) applicable to that instrument.
After section 272 insert:
273A.Duty endorsement: electronic conveyancing instruments
(1)In this section —
digitally sign has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
electronic conveyancing instrument means an instrument in electronic form that, on being digitally signed, has, under the Electronic Conveyancing Act 2014 section 9(2), the same effect as if a paper document having the equivalent effect had been executed as provided in section 9(2)(a) or (b) of that Act.
(2)If the Commissioner has established procedures for the duty endorsement of transaction records that are in the form of electronic conveyancing instruments, a reference in this Act to a transaction record being duty endorsed includes a reference to a transaction record in that form being verified or certified by the Commissioner in accordance with those procedures to the effect that an amount of duty has been paid or is payable or that duty is not chargeable.
(3)The procedures referred to in subsection (2) may include procedures for verifying or certifying electronic conveyancing instruments before they are digitally signed, and in that case —
(a)the verification or certification of an electronic conveyancing instrument must be undertaken in accordance with those procedures as if the transaction to be effected by the instrument were a dutiable transaction, even though the instrument is not digitally signed; but
(b)the verification or certification of the electronic conveyancing instrument in accordance with those procedures becomes a duty endorsement under subsection (2) only when the instrument is digitally signed.
Delete section 278(1) and insert:
(1)In this section —
caveat means a caveat lodged under the Mining Act 1978;
registrar means a mining registrar as defined in the Mining Act 1978 section 8(1).
Part 7 — Settlement Agents Act 1981 amended
This Part amends the Settlement Agents Act 1981.
(1)In section 46(4) delete “clause 1(1) of Schedule 2” and insert:
Schedule 2 clause 1(1) or (2A),
(2)After section 46(7) insert:
(8)For the purposes of effecting a settlement referred to in subsection (1) that is being or is to be completed (wholly or in part) electronically under the Electronic Conveyancing Act 2014 —
(a)if a licensee who is a natural person holds a real estate settlement agent’s licence and a current triennial certificate and is a subscriber (as defined in section 3(1) of that Act), that licensee may authorise any employee of the licensee to digitally sign documents and provide certifications on that licensee’s behalf; and
(b)if a licensee that is a firm holds a real estate settlement agent’s licence and a current triennial certificate and is a subscriber (as so defined), the person in bona fide control of the business operated under the licence may authorise any employee of the licensee to digitally sign documents and provide certifications on that licensee’s behalf; and
(c)if a licensee that is a body corporate holds a real estate settlement agent’s licence and a current triennial certificate and is a subscriber (as so defined), the person in bona fide control of the business operated under the licence may authorise any employee of the licensee to digitally sign documents and provide certifications on that licensee’s behalf; and
(d)subject to any participation rules determined under section 23 of that Act, a person authorised under paragraph (a) or (b) or (c) may digitally sign documents and provide certifications in accordance with that authorisation.
(9)An authorisation given under subsection (8)(a) or (b) or (c) to an employee of a licensee —
(a)unless sooner revoked, continues for as long as the person remains an employee of the licensee; and
(b)may be revoked by —
(i)the licensee; or
(ii)any person who, under subsection (8), is entitled to give authorisations to employees of the licensee, whether or not the person who originally gave the authorisation.
(1)Before Schedule 2 clause 1(1) insert:
(1A)A word or expression that is defined in the Electronic Conveyancing Act 2014 section 3 has the same meaning in subclause (2A) as it has in that section.
(2)After Schedule 2 clause 1(1)(f) insert:
(ga)providing certifications required in respect of the lodging of documents to which paragraph (f) applies;
(3)After Schedule 2 clause 1(1) insert:
(2A)A licensee who holds a real estate settlement agent’s licence and a current triennial certificate may perform any function necessary to enable a conveyancing transaction to be completed by means of an ELN, including (without limitation) the following functions —
(a)entering into a client authorisation to act as a subscriber;
(b)with respect to registry instruments and other documents that a licensee is authorised by this Act to prepare —
(i)preparing them in electronic form for lodging by means of an ELN;
(ii)digitally signing them;
(iii)lodging them in electronic form with the Authority or other Government offices or the offices of statutory authorities by means of an ELN;
(iv)providing certifications required in respect of, or in connection with, the lodging of those registry instruments or other documents by means of an ELN;
(c)doing anything necessary to enable the completion of an associated financial transaction.
Part 8 — Taxation Administration Act 2003 amended
This Part amends the Taxation Administration Act 2003.
After section 114(3) insert:
(4A)A word or expression that is defined in the Electronic Conveyancing Act 2014 section 3 has the same meaning in subsection (4B) as it has in that section.
(4B)This section does not prevent the disclosure of information or material to the Authority, the Commissioner, the Registrar, an ELNO or subscribers for the purpose of enabling subscribers to complete conveyancing transactions or associated financial transactions, or both, by means of an ELN provided and operated under the Electronic Conveyancing Act 2014.
Part 9 — Transfer of Land Act 1893 amended
This Part amends the Transfer of Land Act 1893.
After section 3(1) insert:
(2A)If a provision of this Act is inconsistent with a provision of the Electronic Conveyancing Act 2014, the provision of that Act prevails to the extent of the inconsistency.
(1)In section 4(1) insert in alphabetical order:
conveyancing transaction has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
counterpart has the meaning given in subsection (1CA);
digital signature has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
digitally sign has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
document means any record of information however recorded, and includes —
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph; or
(e)any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means;
ELN has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
ELNO has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
participation rules has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
record includes information stored or recorded by means of a computer;
sign includes digitally sign;
signature includes a digital signature;
subscriber has the meaning given in the Electronic Conveyancing Act 2014 section 3(1);
(2)In section 4(1) in the definition of proprietor after “the proprietor of that freehold land,” insert:
lease, mortgage, charge,
(3)After section 4(1b) insert:
(1CA)For the purposes of this Act, a document is a counterpart in relation to another document if —
(a)the documents relate to the same conveyancing transaction; and
(b)the documents contain exactly the same data or information, apart from all or any of the following —
(i)any signature created for or appearing on each document;
(ii)the details of any attesting witness;
(iii)the date on which the documents were signed or witnessed;
(iv)any data or information authorised or required by a taxation Act (as defined in the Taxation Administration Act 2003 Glossary);
(v)anything else prescribed by the regulations for the purposes of this paragraph.
Delete section 14 and insert:
14.Commissioner and Registrar may exercise functions electronically
(1)Anything that the Commissioner is required or authorised to do under this Act may be done by the Commissioner by electronic means in any way the Commissioner determines is appropriate.
(2)Anything that the Registrar is required or authorised to do under this Act may be done by the Registrar by electronic means in any way the Registrar determines is appropriate.
(3)If, in reliance on this section, something is done electronically when it would otherwise be required to have been done, or could have been done, using or with respect to a paper document, the doing of that thing electronically has the same effect as if that thing had been done using or with respect to a paper document.
(4)This section applies even though the provision requiring or authorising the Commissioner or Registrar to do something expressly or impliedly requires or authorises the thing to be done by means of a paper document.
Delete section 30(5) and insert:
(5)A caveat under this section cannot be lodged unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
Delete section 48B(4) and insert:
(4)If land is the subject of a certificate of title, the Registrar may cancel the duplicate certificate of title for the land if —
(a)a request is made in accordance with subsection (5A) for the cancellation of the duplicate certificate of title; and
(b)the duplicate certificate of title is delivered to the Registrar for retention, disposal or destruction.
(5A)A request may be made under subsection (4) by —
(a)a proprietor of the land (including the proprietor of a registered mortgage or registered charge over the land); or
(b)a person lodging an instrument for the registration of a mortgage or charge over the land (the incoming mortgagee), but only if the incoming mortgagee satisfies the Registrar that the incoming mortgagee holds an acknowledgment from the registered proprietor of the freehold estate in the land that the incoming mortgagee intends to make the request.
(5B)On cancelling a duplicate certificate of title under subsection (4), the Registrar must endorse the certificate of title to that effect.
Delete section 52(2) and insert:
(2)An instrument purporting to affect any land for which a certificate of title has been registered is registered when a memorandum referred to in section 56 in relation to the original instrument has been entered in the Register on the certificate.
In section 54(3) delete “section and seal each memorandum.” and insert:
section.
In section 57:
(a)delete “certificate of title, instrument” and insert:
certificate of title
(b)delete paragraph (a).
Note:The heading to amended section 57 is to read:
Memoranda of instruments to be entered
After section 74(5) insert:
(6)Nothing in this section applies if the production, presentation, delivery up or lodging of a duplicate certificate of title is dispensed with under regulations made under section 181 or requirements determined under section 182A.
After section 74B(2) insert:
(3)Subsection (4) applies if —
(a)a document is lodged electronically under the Electronic Conveyancing Act 2014; and
(b)in connection with the lodging of that document, a duplicate certificate of title is not produced but is dealt with in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A;
and
(c)that document is later withdrawn from registration or is rejected.
(4)If this subsection applies, the Registrar may cause a new duplicate certificate of title or, in the case of a digital title, a new edition of the duplicate certificate of title to be issued to —
(a)the proprietor of the land that is the subject of the certificate of title; or
(b)a person named and authorised by the proprietor as the person to whom the duplicate may be issued.
Delete section 81W(9) and insert:
(9)A caveat cannot be lodged under subsection (6) unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
After section 105(2) insert:
(3)Subsection (4) applies if —
(a)a counterpart of an instrument purporting to mortgage or charge any land under the operation of this Act (the charging instrument) is lodged for registration in accordance with regulations made under this Act or requirements determined under section 182A; and
(b)the counterpart of the charging instrument lodged —
(i)purports to be signed by the person who, on registration of the mortgage or charge, will become the proprietor of the mortgage or charge; but
(ii)does not purport to be signed by the proprietor of the land;
and
(c)a counterpart of the charging instrument purporting to be signed by the proprietor of the land is not also lodged for registration; and
(d)the charging instrument is registered.
(4)If this subsection applies, the mortgage or charge is not valid or binding against the proprietor of the land unless, before the charging instrument was registered, the proprietor of the land signed a counterpart of the charging instrument.
(5)Subsection (4) overrides section 58.
After section 126 insert:
127A.Subsequent mortgages or charges
(1)In this section —
mortgage includes a charge;
mortgagee includes an annuitant.
(2)If any land under the operation of this Act is subject to a mortgage, the registration of a subsequent mortgage does not require the consent of the existing mortgagee.
(3)If any land under the operation of this Act is subject to a mortgage, the execution or attempted execution of a subsequent mortgage does not —
(a)constitute a breach of any term, covenant or condition contained in the existing mortgage; or
(b)give rise to any forfeiture or penalty; or
(c)make payable or accelerate the time for payment of any sum or sums that, if the execution or attempted execution of the subsequent mortgage had not happened, would not have been payable or would not have been payable at that time.
(4)This section has effect despite any provision to the contrary in any mortgage.
(5)This section does not apply to or in relation to any mortgage registered before the Electronic Conveyancing Act 2014 section 74 comes into operation.
In section 129A(3) delete “section 52(2)(a),” and insert:
section 52(2),
Delete section 137(1D) and insert:
(1D)A caveat under this section cannot be lodged unless one of the following is specified in it for the purposes of the service of notices in relation to the caveat —
(a)an address in Australia;
(b)a number for a facsimile machine in Australia;
(c)a way of receiving notices electronically (for example, an email address) that is prescribed by the regulations for the purposes of this paragraph.
Delete section 180 and insert:
180.Commissioner may summons people to provide information
(1)For the purposes of enabling the Commissioner or the Registrar to perform any function under this Act or any other Act, the Commissioner may, by summons, require any of the persons listed in subsection (2) to appear at a time and place specified in the summons to do all or any of the following —
(a)to give an explanation concerning —
(i)any land; or
(ii)any document affecting the title to any land; or
(iii)any conveyancing transaction;
(b)to produce any grant, certificate of title, will, mortgage or other instrument or document in the person’s possession or within the person’s control —
(i)affecting any land or the title to any land; or
(ii)relating to any conveyancing transaction.
(2)The persons referred to in subsection (1) are the following —
(a)the proprietor, mortgagee or other person interested in any land under, or proposed to be brought under, the operation of this Act in respect of which —
(i)any transfer, lease, mortgage, charge, carbon right, carbon covenant, tree plantation agreement or other dealing is proposed to be transacted or registered; or
(ii)any discharge from any mortgage or charge, or any surrender of a carbon right, carbon covenant or plantation interest, is proposed to be transacted or registered; or
(iii)any transmission is proposed to be registered;
(b)any person whom the Commissioner reasonably considers will be able to give an explanation concerning a conveyancing transaction or produce a document relating to a conveyancing transaction, including (without limitation) —
(i)a subscriber;
(ii)any of a subscriber’s employees, agents, contractors or officers;
(iii)an Australian lawyer;
(iv)a settlement agent as defined in the Settlement Agents Act 1981 section 3(1);
(v)an ELNO;
(vi)any of an ELNO’s employees, agents, contractors or officers.
(3)A summons under subsection (1) must be —
(a)in an approved form; and
(b)signed by the Commissioner; and
(c)served on the person summoned in accordance with section 240 as if it were a notice to which that section applies.
(4)For the purposes of this section —
(a)the Commissioner may require a person summoned under subsection (1) to take an oath or to make an affirmation; and
(b)the Commissioner may administer an oath or affirmation to the person.
(5)If a person is summoned under subsection (1), the Commissioner may deal with the person as in the case of contempt of the Supreme Court if the person —
(a)fails, refuses or neglects —
(i)to attend the Commissioner for the purpose of being examined; or
(ii)to produce any document as required by the summons; or
(iii)to allow any document to which subparagraph (ii) applies to be inspected;
or
(b)refuses or neglects to give any explanation required by the Commissioner.
(6)If the Commissioner considers that any information or document that is withheld from the Commissioner in the circumstances set out in subsection (5) is material, the Registrar is not bound to proceed with the transaction to which that information or document relates.
181A.Commissioner and Registrar may require supporting documentation or evidence or verification
(1)In this section —
lodge includes deposit, present and file.
(2)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may require any person who lodges any document to do, or to arrange for someone to do, all or any of the following —
(a)to submit or produce any document supporting or authenticating the document;
(b)to provide specified information relating to the document;
(c)to submit or produce evidence relating to a certification given in or with the document, including (without limitation) —
(i)evidence showing the truth of the certification;
(ii)evidence that the person who gave the certification was entitled to give it;
(d)to verify any document, information, evidence, certification or other matter by statutory declaration.
(3)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may, in relation to a document lodged or to be lodged, require any person to do, or to arrange for someone to do, all or any of the following —
(a)to give a certification in or in relation to the document;
(b)to verify the identity and authority of —
(i)any person who is a party to the conveyancing transaction to which the document relates;
(ii)any person who signed or authorised the signing of the document.
(4)A requirement made under subsection (2) or (3) —
(a)must be given by notice served on the person to whom the requirement relates; and
(b)must specify a period within which the requirement must be complied with; and
(c)may specify how the requirement is to be complied with.
(5)If a requirement made under subsection (2) or (3) in relation to a document is not complied with within the period specified in accordance with subsection (4)(b), the Commissioner or, as the case requires, the Registrar —
(a)may reject the document; and
(b)if the document is rejected, must notify the refusal to the person lodging the document.
(6)If a document is rejected under subsection (5), section 192(2) applies as if the document had been rejected under section 192(1).
181B.Commissioner and Registrar may require verification by statutory declaration
(1)For the purposes of performing any function under this Act or any other Act, the Commissioner or the Registrar may require any person to verify any document, information, evidence, certification or other matter by statutory declaration.
(2)If a requirement under this section is not complied with within the period allowed by the Commissioner or Registrar, the Commissioner or Registrar may refuse to take any action or, as the case requires, any further action in relation to the matter to which the requirement relates.
(1)After section 181(1)(bb) insert:
(bc)prescribing requirements relating to the lodgment, presentation, filing or deposit of documents with the Authority, the Commissioner or the Registrar, including (without limitation) —
(i)the types of document that can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(ii)the form in which documents, or documents of a particular class or type, can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iii)the documents that must be lodged or retained when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iv)how long documents must be retained;
(v)the documents required to support or authenticate a document lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
and
(bd)prescribing requirements relating to duplicate certificates of title when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), including (without limitation) —
(i)dispensing with, or authorising the Registrar to dispense with, any requirement of this Act to produce or present or deliver up to the Registrar, or to bring in or lodge, a duplicate certificate of title;
(ii)prescribing how a duplicate certificate of title is to be dealt with if its production, presentation, delivery up, lodging or bringing in is dispensed with;
(iii)requiring a person who lodges a document to have obtained possession of any duplicate certificate of title that would otherwise be required to be produced, presented or delivered up to the Registrar, or to be brought in or lodged, and requiring that person to destroy or invalidate that duplicate certificate of title;
(iv)requiring a person who would otherwise be required, at the request of any person, to produce, present or deliver up, to the Registrar, a duplicate certificate of title to deliver the duplicate certificate of title to someone else in accordance with the regulations, and prescribing how that other person is to deal with the duplicate certificate of title;
and
(be)prescribing requirements relating to certifications that must be included in or with documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the matters that are required to be certified;
(ii)the persons or classes of persons who can give certifications;
(iii)the form of certifications;
(iv)the evidence showing the truth of a certification that must be retained and how long the evidence must be retained;
and
(bf)prescribing requirements relating to things that are required or authorised under this Act to be endorsed on or included in documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) requiring or permitting something that otherwise would be required or authorised to be endorsed on or included in a document to be lodged or given separately; and
(bg)prescribing requirements relating to consents, permissions or approvals that are required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)requiring or permitting a consent, permission or approval to be endorsed, lodged or given by electronic means;
(ii)requiring or permitting a consent, permission or approval that otherwise would be required or authorised to accompany or be endorsed on or lodged with a document to be lodged or given separately;
and
(bh)prescribing requirements relating to the verification of the identity and authority of persons who are parties to a conveyancing transaction or who sign or authorise the signing of documents to be lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the standards to which identity and authority are to be verified;
(ii)the documents or classes of documents in relation to which verification requirements apply;
(iii)the persons or classes of persons who can undertake verification;
(iv)the evidence showing the steps taken to satisfy the verification requirements that must be retained and how long the evidence must be retained;
and
(bi)prescribing requirements relating to applications made under this Act to the Commissioner; and
(bj)the manner in which notices under this Act must or may be given, including (without limitation) requiring or permitting notices that must or may be given to or by the Registrar or the Commissioner to be given by electronic means; and
(2)After section 181(3) insert:
(4)Despite the Interpretation Act 1984 sections 3(3) and 43(6), section 43(6) of that Act applies in respect of regulations and rules made under a power conferred by this Act.
79.Sections 182A and 182B inserted
After section 181 insert:
182A.Commissioner and Registrar may determine requirements
(1)The Commissioner or the Registrar may determine requirements relating to all or any of the following matters —
(a)the lodgment, presentation, filing or deposit of documents with the Authority, the Commissioner or the Registrar, including (without limitation) —
(i)the types of document that can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(ii)the form in which documents, or documents of a particular class or type, can be lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iii)the documents that must be lodged or retained when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(iv)how long documents must be retained;
(v)the documents required to support or authenticate a document lodged electronically under the Electronic Conveyancing Act 2014 section 7(1);
(b)how duplicate certificates of title are to be dealt with when a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), including (without limitation) —
(i)dispensing with, or authorising the Registrar to dispense with, any requirement of this Act to produce or present or deliver up to the Registrar, or to bring in or lodge, a duplicate certificate of title;
(ii)how a duplicate certificate of title is to be dealt with if its production, presentation, delivery up, lodging or bringing in is dispensed with;
(iii)requiring a person who lodges a document to have obtained possession of any duplicate certificate of title that would otherwise be required to be produced, presented or delivered up to the Registrar, or to be brought in or lodged, and requiring that person to destroy or invalidate that duplicate certificate of title;
(iv)requiring a person who would otherwise be required, at the request of any person, to produce, present or deliver up, to the Registrar, a duplicate certificate of title to deliver the duplicate certificate of title to someone else in accordance with the requirements, and requiring that other person to deal with the duplicate certificate of title in accordance with the requirements;
(c)certifications that must be included in or with documents lodged, presented or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the matters that are required to be certified;
(ii)the persons or classes of persons who may give certifications;
(iii)the form of certifications;
(iv)the evidence showing the truth of a certification that must be retained and how long the evidence must be retained;
(d)things that are required or authorised under this Act to be endorsed on or included in documents lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) requiring or permitting something that otherwise would be required or authorised to be endorsed on or included in a document to be lodged or given separately;
(e)consents, permissions or approvals that are required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)requiring or permitting a consent, permission or approval to be endorsed, lodged or given by electronic means;
(ii)requiring or permitting a consent, permission or approval that otherwise would be required or authorised to accompany or be endorsed on or lodged with a document to be lodged or given separately;
(f)the verification of the identity and authority of persons who are parties to a conveyancing transaction or who sign or authorise the signing of documents to be lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar (whether electronically or in paper form), including (without limitation) —
(i)the standards to which identity and authority are to be verified;
(ii)the documents or classes of documents in relation to which verification requirements apply;
(iii)the persons or classes of persons who can undertake verification;
(iv)the evidence showing the steps taken to satisfy the verification requirements that must be retained and how long the evidence must be retained;
(g)applications made under this Act to the Commissioner.
(2)Requirements determined under this section are not subsidiary legislation for the purposes of the Interpretation Act 1984, and section 42 of that Act does not apply to them.
(3)The Interpretation Act 1984 sections 43 (other than subsection (6)), 44, 48, 50(1), 55 and 56 and Part VIII apply to requirements determined under this section as if they were subsidiary legislation.
(4)If there is a conflict or inconsistency between a requirement determined under this section and a regulation made under section 181 or under the Electronic Conveyancing Act 2014 section 46, the regulation prevails to the extent of the conflict or inconsistency.
(5)This section does not limit the matters that may be prescribed under section 181.
182B.Publication of requirements
(1)In this section —
requirement means a requirement determined under section 182A;
working day means a day other than a Saturday, a Sunday or a public holiday throughout the State.
(2)The Registrar must ensure —
(a)that all current requirements are publicly available free of charge; and
(b)that requirements, and any changes to requirements, are made publicly available at least 20 working days before the requirements or, as the case requires, the changes to them take effect.
(3)However, changes to requirements can take effect within a shorter period (including immediately on being made publicly available) if the Registrar or the Commissioner is satisfied that the changes need to take effect urgently.
(4)Requirements may be made publicly available in accordance with this section in any manner the Registrar considers appropriate, including (without limitation) by all or any of the following means —
(a)by means of a website;
(b)by publication in a practice manual, customer information bulletin or other similar publication issued by the Authority.
Delete section 188(8) and insert:
(8)Despite any other provision of this Act, the Registrar may destroy any document that is lodged, presented, filed or deposited with the Authority or registered in its office if —
(a)the Commissioner and the Registrar are of the opinion that the retention of the document serves no useful purpose; and
(b)the Minister approves the destruction of —
(i)the document; or
(ii)a class of documents in which that document is included.
(9)The destruction of a cancelled duplicate certificate of title does not require the Minister’s approval under subsection (8).
In section 189(1) delete “appearing on the face of any instrument” and insert:
in any instrument (whether in paper or electronic form)
82.Sections 192A to 192E inserted
After section 191 insert:
192A.Registrar entitled to assume that lodging party has certain authorities from other interested parties
(1)In this section —
lodge includes deposit, present and file.
(2)This section applies to any document that is lodged —
(a)for registration; or
(b)in relation to any land, title, estate or interest; or
(c)in connection with any application or dealing.
(3)The Registrar is entitled to assume that a person who lodges a document to which this section applies has authority from all persons claiming under, or having an interest in, the document to do all of the following —
(a)to lodge it;
(b)if applicable, to withdraw it from registration;
(c)to uplift it for amendment;
(d)to do anything to or in relation to the document that a person claiming under, or having an interest in, the document could do if they had lodged it;
(e)to receive requisitions, communications and notices in respect of it;
(f)to attend to all other matters that may arise —
(i)in the course of registration of the document (if applicable); or
(ii)in the course of any other action that the Registrar is authorised under this Act or any other Act to take with respect to the document.
(4)This section does not apply to any document lodged before the Electronic Conveyancing Act 2014 section 82 comes into operation.
192B.Registrar may refuse lodgment for non‑compliance with certain requirements
(1)In this section —
lodge includes deposit, present and file.
(2)The Registrar may refuse to accept a document for lodgment if —
(a)the document does not comply with —
(i)the requirements of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)the requirements of the Electronic Conveyancing Act 2014 or any participation rules;
or
(b)any requirement mentioned in paragraph (a)(i) to (iii) that relates to the lodging of the document is not complied with.
(3)This section does not limit or affect any other obligation or power to refuse to accept a document for lodgment.
192C.Commissioner may refuse to take action if requirements not complied with
(1)The Commissioner may refuse to take any action that the Commissioner is required or authorised to take under this Act if —
(a)the taking of that action is dependent on compliance with —
(i)a requirement of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)a requirement of the Electronic Conveyancing Act 2014 or any participation rules;
and
(b)that requirement has not been complied with.
(2)For the purposes of subsection (1), taking an action includes (without limiting subsection (1)) —
(a)accepting an application under this Act or any regulations made under this Act; and
(b)giving a direction to the Registrar.
(3)Before refusing to take action in the circumstances set out in subsection (1), the Commissioner may direct the Registrar to give notice of the non‑compliance to any person specified by the Commissioner.
(4)A notice given under subsection (3) —
(a)must be served on the person to whom it is directed; and
(b)must specify a period within which the non‑compliance must be rectified; and
(c)may specify how the non‑compliance is to be rectified.
(5)If a notice of non‑compliance given under subsection (3) relates to a document —
(a)the notice is to be taken to be a notice given under section 192(1) by the Registrar in relation to the document; and
(b)section 192 applies accordingly with all necessary changes.
(6)This section does not limit or affect any other obligation or power to refuse to take any action.
192D.Registrar may refuse registration, noting or recording for non‑compliance with requirements
(1)In this section —
lodge includes deposit, present and file.
(2)This section applies to any document that is lodged —
(a)for registration; or
(b)in relation to any land, title, estate or interest; or
(c)in connection with any application or dealing.
(3)The Registrar may refuse to register, note, file or record a document to which this section applies if —
(a)the document does not comply with —
(i)the requirements of this Act or any regulations made under this Act; or
(ii)a requirement determined under section 182A; or
(iii)the requirements of the Electronic Conveyancing Act 2014 or any participation rules;
or
(b)any requirement mentioned in paragraph (a)(i) to (iii) that relates to the registration, noting, filing or recording of the document is not complied with.
(4)For the purposes of subsection (3), noting a document (the first document) includes (without limiting subsection (3)) —
(a)noting another document to the effect that a provision of the first document is incorporated in the other document; and
(b)endorsing another document to an effect stated in the first document; and
(c)removing a notification from, or modifying a notification in, another document in a way requested in the first document.
(5)This section does not limit or affect any other obligation or power to refuse to register, note or record a document.
192E.Notice of non‑compliance under section 192D
(1)Before refusing to register, note, file or record a document in the circumstances set out in section 192D(3), the Registrar may give notice of the non‑compliance to the person who lodged the document.
(2)A notice given under subsection (1) —
(a)must be served on the person who lodged the document; and
(b)must specify a period within which the non‑compliance must be rectified; and
(c)may specify how the non‑compliance is to be rectified.
(3)If a notice of non‑compliance is given under subsection (2) in relation to a document —
(a)the notice is to be taken to be a notice given under section 192(1) in relation to the document; and
(b)section 192 applies accordingly with all necessary changes.
In section 192(2)(b) delete “as a penalty”.
In section 193 after “by this Act” insert:
or the Electronic Conveyancing Act 2014
In section 198 delete “this Act.” and insert:
this Act or the Electronic Conveyancing Act 2014.
86.Sections 214 to 214B replaced
Delete sections 214 to 214B and insert:
(1)A person must not do any of the things set out in subsection (3).
Penalty: imprisonment for 10 years and a fine of $100 000.
Summary conviction penalty: imprisonment for 3 years and a fine of $40 000.
(2)An offence under subsection (1) is a crime.
(3)The things to which subsection (1) applies are —
(a)making any statement or declaration that the person making it knows is false or misleading in a material particular in —
(i)any application under this Act; or
(ii)any document lodged, deposited, presented or filed under this Act;
(b)making or giving any certification required under this Act that the person making or giving it knows is false or misleading in a material particular;
(c)providing to the Commissioner or Registrar any material, document, fact or information that the person providing it knows is false or misleading in a material particular;
(d)suppressing, withholding or concealing from the Commissioner or Registrar any material, document, fact or information;
(e)making any statutory declaration authorised or required under this Act that the person making it knows is false or misleading in a material particular;
(f)giving evidence in the course of an examination before the Commissioner that the person giving it knows is false or misleading in a material particular;
(g)fraudulently procuring —
(i)a certificate of title or instrument; or
(ii)an entry in the Register; or
(iii)any erasure or alteration in any entry in the Register;
(h)whether fraudulently or not, without lawful excuse —
(i)defacing, erasing or altering any words, memorandum or diagram in or on any duplicate certificate or duplicate instrument; or
(ii)destroying any duplicate certificate or duplicate instrument;
(i)misleading or deceiving any person authorised to require an explanation or information in respect of —
(i)any land, or the title to any land, under the operation of this Act; or
(ii)any land, or the title to any land, that is the subject of an application to bring it under the operation of this Act; or
(iii)any land or the title to any land in respect of which any dealing or transmission is proposed to be registered;
(j)without reasonable excuse, neglecting to lodge with the Registrar a duplicate certificate of title or Crown lease when required to do so under this Act.
Any certificate of title, instrument, entry, erasure or alteration procured or made by fraud in any of the circumstances set out in section 214 is void as against all persons who are party to that fraud, whether or not anyone is convicted of that fraud.
87.Sections 232A and 232B inserted
After section 231 insert:
232A.Effect of dealing with duplicate certificate of title in accordance with requirements as alternative to production
(1)In this section —
lodge includes deposit, present and file;
produce includes present, deliver up, bring in and provide.
(2)This section applies if —
(a)a document is lodged —
(i)for registration; or
(ii)in relation to any land, title, estate or interest; or
(iii)in connection with any application or dealing;
and
(b)a provision of this Act requires a duplicate certificate of title to be produced in connection with the lodging of that document; and
(c)that duplicate certificate of title is not produced but is dealt with in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A.
(3)If this section applies —
(a)for the purposes of this Act and any other written law, dealing with the duplicate certificate of title as mentioned in subsection (2)(c) is to be taken to be compliance with the requirement to produce the duplicate certificate of title in connection with the lodged document; and
(b)the Registrar or, as the case requires, the Commissioner or the Authority may take any action that they are required or authorised to take under this Act or any other written law as if the duplicate certificate of title had been produced, in accordance with that requirement, in connection with the lodged document.
232B.Effect of using alternative means to provide consent, permission or approval
(1)This section applies if —
(a)a consent, permission or approval is required or authorised under this Act or any other written law to accompany or be endorsed on, lodged with or given in relation to a document lodged, presented, filed or deposited with the Authority, the Commissioner or the Registrar; and
(b)the consent, permission or approval is not provided in the way required or authorised under this Act or the other written law but is provided in another way in accordance with —
(i)regulations made under this Act; or
(ii)requirements determined under section 182A.
(2)If this section applies —
(a)for the purposes of this Act and any other written law, providing the consent, permission or approval as mentioned in subsection (1)(b) is to be taken to be authorised by this Act or, as the case requires, the other written law; and
(b)for the purposes of this Act and any other written law, the consent, permission or approval provided as mentioned in subsection (1)(b) —
(i)is to be taken to have been provided in the way required or authorised under this Act or, as the case requires, the other written law; and
(ii)has the same effect as if it had been provided in the way required or authorised under this Act or, as the case requires, the other written law;
and
(c)the Registrar or, as the case requires, the Commissioner or the Authority may take any action that they are required or authorised to take under this Act or any other written law as if the consent, permission or approval had been provided in the way required under this Act or the other written law.
In section 234(1) delete “the said” and insert:
this
89.Sections 238A and 238B inserted
After section 238 insert:
238A.Registrar’s copy to be definitive
(1)In this section —
lodge includes deposit, present and file.
(2)If a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1), the Registrar may produce, as often as the Registrar thinks necessary for any purpose, a record, copy, print‑out or image of the document in any medium determined by the Registrar.
(3)If the Registrar produces, under subsection (2), a record, copy, print‑out or image of a document, the record, copy, print‑out or image is to be taken to be the definitive form of the document on and from the day on which it was lodged.
(4)The Registrar may produce, as often as the Registrar thinks necessary for any purpose and in any medium determined by the Registrar, a record, copy, print‑out or image of a document that —
(a)is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)is registered, noted or recorded in the Register.
(5)If the Registrar produces, under subsection (4), a record, copy, print‑out or image of a document, the record, copy, print‑out or image is to be taken to be the definitive form of the document as registered, noted or recorded in the Register at the time the record, copy, print‑out or image is produced.
238B.Resubmission of document lodged electronically if data capture defective
(1)This section applies if —
(a)a document is lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)for any reason it is impracticable to properly capture the data in the document.
(2)If this section applies —
(a)the Registrar may refuse to complete or to proceed with the registration of the document or, as the case requires, to make any entry or do any other act in relation to the document; and
(b)the Registrar must —
(i)notify the refusal to the subscriber lodging the document; and
(ii)request the subscriber to resubmit the document.
(3)If subsection (2) applies —
(a)the priority of the document is not affected as long as it is resubmitted within 2 months after the date on which it was lodged or any longer period the Registrar allows; and
(b)if the document is not resubmitted in accordance with this section within the period applicable under paragraph (a), it is to be taken never to have been lodged.
(4)If subsection (3)(b) applies to the document, then —
(a)if the impracticability of properly capturing the data in the document was not due, in whole or in part, to any fault on the part of the subscriber that lodged the document or any person for whom the subscriber was acting at the time of lodging the document, or the ELNO that operates the ELN by means of which the document was lodged, all fees paid on the lodging of the document must be refunded; and
(b)if paragraph (a) does not apply —
(i)the Registrar must retain from the fees paid on the lodging of the document (the fees) the amount prescribed by the regulations (the prescribed amount); and
(ii)the prescribed amount is forfeited and must be dealt with under section 190; and
(iii)the amount (if any) that is the difference between the fees and the prescribed amount must be returned to the subscriber that lodged the document when the document is withdrawn from lodgment.
(5)This section is in addition to the powers conferred by section 192.
After section 239(3) insert:
(4)Subsection (5) applies if —
(a)2 or more counterpart documents are lodged electronically under the Electronic Conveyancing Act 2014 section 7(1); and
(b)those counterpart documents are consolidated electronically into one document, with or without the addition of further material.
(5)If this subsection applies —
(a)the consolidated document, but not those counterpart documents, is available for inspection in accordance with subsection (1); and
(b)a copy of the consolidated document, but not of the counterpart documents, may be produced in accordance with subsection (2); and
(c)a copy or print‑out of the consolidated document, but not of the counterpart documents, is available for purchase in accordance with subsection (3); and
(d)section 239B applies as if the consolidated document, but not the counterpart documents, were a document referred to in subsection (1).
In section 239B(1)(a) and (b) delete “and sealed”.
(1)In section 240(1):
(a)in paragraph (c) delete “number.” and insert:
number; or
(b)after paragraph (c) insert:
(d)by sending the notice by electronic means in accordance with the regulations.
(2)In section 240(3):
(a)in paragraph (b)(ii) delete “transmission.” and insert:
transmission;
(b)after paragraph (b) insert:
and
(c)service by electronic means is deemed to be effected as prescribed in the regulations.
Delete section 240A and insert:
240A.Notification of change of address, fax number or way of receiving notices electronically
(1)In this section —
notification details means —
(a)an address for service; or
(b)a facsimile number for service; or
(c)a way of receiving notices electronically.
(2)A person may apply to the Registrar to —
(a)change the record of the person’s notification details that have been specified in an approved form for the purposes of section 240 or in a caveat; or
(b)notify the Registrar of any change to the notification details recorded in the Register in respect of the person.
(3)An application must be in an approved form and accompanied by the prescribed fee.
(4)On receiving an application, the Registrar, if satisfied that it would be in order to do so, must alter the notification details accordingly.
After section 243 insert:
Part XV — Transitional provisions for Electronic Conveyancing Act 2014
In this Part —
amending Act means the Electronic Conveyancing Act 2014.
245.Transitional provision for section 52(2)
An instrument referred to in section 52(2) (as replaced by the amending Act) includes an instrument presented for registration before the day on which the amending Act section 67 comes into operation.
246.Transitional provision for section 105(4)
Section 105(4) (as inserted by the amending Act) applies only to and in relation to instruments registered after the amending Act section 73 comes into operation.
247.Transitional provision for section 182A (requirements)
(1)This section applies to any statement that —
(a)is included in any practice manual, customer information bulletin or other similar publication issued by the Authority before the amending Act section 79 comes into operation; and
(b)relates to any matter in relation to which a requirement can be determined under section 182A(1); and
(c)specifies or has the effect of specifying a requirement in relation to one of those matters; and
(d)has not been superseded or overridden by any other statement included in any publication of the kind mentioned in paragraph (a) and issued before the amending Act section 79 comes into operation.
(2)A statement to which this section applies is to be taken to be a requirement determined under section 182A in the same terms as the original statement, and to continue in force under and subject to this Act.
95.Twenty‑fifth Schedule deleted
Delete the Twenty‑fifth Schedule.
Schedule 1 —
[s. 4]
1.Displacement of Schedule by contrary intention
The application of this Schedule may be displaced, wholly or partly, by a contrary intention appearing in this Act.
2.Act to be construed not to exceed legislative power of Legislature
(1)This Act is to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction.
(2)If a provision of this Act, or the application of a provision of this Act to a person, subject matter or circumstance, would, but for this clause, be construed as being in excess of the legislative power of the Legislature of this jurisdiction —
(a)it is a valid provision to the extent to which it is not in excess of the power; and
(b)the remainder of this Act, and the application of the provision to other persons, subject matters or circumstances, is not affected.
(3)This clause applies to this Act in addition to, and without limiting the effect of, any provision of this Act.
3.Every section to be a substantive enactment
Every section of this Act has effect as a substantive enactment without introductory words.
4.Material that is, and is not, part of this Act
(1)The heading to a Part, Division or Subdivision into which this Act is divided is part of this Act.
(2)A Schedule to this Act is part of this Act.
(3)Punctuation in this Act is part of this Act.
(4)A heading to a section or subsection of this Act does not form part of this Act.
(5)Notes included in this Act (including footnotes and endnotes) do not form part of this Act.
5.References to particular Acts and to enactments
In this Act —
(a)an Act of this jurisdiction may be cited —
(i)by its short title; or
(ii)by reference to the year in which it was passed and its number;
and
(b)a Commonwealth Act may be cited —
(i)by its short title; or
(ii)in another way sufficient in a Commonwealth Act for the citation of such an Act,
together with a reference to the Commonwealth; and
(c)an Act of another jurisdiction may be cited —
(i)by its short title; or
(ii)in another way sufficient in an Act of the jurisdiction for the citation of such an Act,
together with a reference to the jurisdiction.
6.References taken to be included in Act citation etc.
(1)A reference in this Act to an Act includes a reference to —
(a)the Act as originally enacted, and as amended from time to time since its original enactment; and
(b)if the Act has been repealed and re‑enacted (with or without modification) since the enactment of the reference, the Act as re‑enacted, and as amended from time to time since its re‑enactment.
(2)A reference in this Act to a provision of this Act or of an Act includes a reference to —
(a)the provision as originally enacted, and as amended from time to time since its original enactment; and
(b)if the provision has been omitted and re‑enacted (with or without modification) since the enactment of the reference, the provision as re‑enacted, and as amended from time to time since its re‑enactment.
(3)Subclauses (1) and (2) apply to a reference in this Act to a law of the Commonwealth or another jurisdiction as they apply to a reference in this Act to an Act and to a provision of an Act.
7.Interpretation best achieving Act’s purpose
(1)In the interpretation of a provision of this Act, the interpretation that will best achieve the purpose or object of this Act is to be preferred to any other interpretation.
(2)Subclause (1) applies whether or not the purpose is expressly stated in this Act.
8.Use of extrinsic material in interpretation
(1)In this clause —
extrinsic material means relevant material not forming part of this Act, including, for example —
(a)material that is set out in the document containing the text of this Act as printed by the Government Printer; and
(b)a relevant report of a Royal Commission, Law Reform Commission, commission or committee of inquiry, or a similar body, that was laid before the Parliament of this jurisdiction before the provision concerned was enacted; and
(c)a relevant report of a committee of the Parliament of this jurisdiction that was made to the Parliament before the provision was enacted; and
(d)a treaty or other international agreement that is mentioned in this Act; and
(e)an explanatory note or memorandum relating to the Bill that contained the provision, or any relevant document, that was laid before, or given to the members of, the Parliament of this jurisdiction by the member bringing in the Bill before the provision was enacted; and
(f)the speech made to the Parliament of this jurisdiction by the member in moving a motion that the Bill be read a second time; and
(g)material in the Votes and Proceedings of the Parliament of this jurisdiction or in any official record of debates in the Parliament of this jurisdiction; and
(h)a document that is declared by this Act to be a relevant document for the purposes of this clause;
ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in this Act and to the purpose of this Act.
(2)Subject to subclause (3), in the interpretation of a provision of this Act, consideration may be given to extrinsic material capable of assisting in the interpretation —
(a)if the provision is ambiguous or obscure, to provide an interpretation of it; or
(b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or
(c)in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.
(3)In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to —
(a)the desirability of a provision being interpreted as having its ordinary meaning; and
(b)the undesirability of prolonging proceedings without compensating advantage; and
(c)other relevant matters.
9.Effect of change of drafting practice
If —
(a)a provision of this Act expresses an idea in particular words; and
(b)a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example —
(i)the use of a clearer or simpler style; or
(ii)the use of gender neutral language,
the ideas must not be taken to be different merely because different words are used.
If this Act includes an example of the operation of a provision —
(a)the example is not exhaustive; and
(b)the example does not limit, but may extend, the meaning of the provision; and
(c)the example and the provision are to be read in the context of each other and the other provisions of this Act, but, if the example and the provision so read are inconsistent, the provision prevails.
(1)If a form is prescribed or approved by or for the purpose of this Act, strict compliance with the form is not necessary and substantial compliance is sufficient.
(2)If a form prescribed or approved by or for the purpose of this Act requires —
(a)the form to be completed in a specified way; or
(b)specified information or documents to be included in, attached to or given with the form; or
(c)the form, or information or documents included in, attached to or given with the form, to be verified in a specified way,
the form is not properly completed unless the requirement is complied with.
(1)In this Act —
Act means an Act of the Legislature of this jurisdiction;
adult means an individual who is 18 or more;
affidavit, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration and promise;
amend includes —
(a)omit or omit and substitute; or
(b)alter or vary; or
(c)amend by implication;
appoint includes reappoint;
Australia means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory;
business day means a day that is not —
(a)a Saturday or Sunday; or
(b)a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done;
calendar month means a period starting at the beginning of any day of one of the 12 named months and ending —
(a)immediately before the beginning of the corresponding day of the next named month; or
(b)if there is no such corresponding day, at the end of the next named month;
calendar year means a period of 12 months beginning on 1 January;
commencement, in relation to this Act or an Act or a provision of this Act or an Act, means the time at which this Act, the Act or provision comes into operation;
Commonwealth means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory;
confer, in relation to a function, includes impose;
contravene includes fail to comply with;
country includes —
(a)a federation; or
(b)a state, province or other part of a federation;
date of assent, in relation to an Act, means the day on which the Act receives the Royal Assent;
definition means a provision of this Act (however expressed) that —
(a)gives a meaning to a word or expression; or
(b)limits or extends the meaning of a word or expression;
document means any record of information however recorded, and includes —
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph; or
(e)any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means;
expire includes lapse or otherwise cease to have effect;
external Territory means a Territory, other than an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act;
fail includes refuse;
financial year means a period of 12 months beginning on 1 July;
foreign country means a country (whether or not an independent sovereign State) outside Australia and the external Territories;
function includes a power, authority or duty;
Gazette means the Government Gazette of this jurisdiction;
gazetted means published in the Gazette;
Gazette notice means notice published in the Gazette;
Government Printer means the Government Printer of this jurisdiction, and includes any other person authorised by the Government of this jurisdiction to print an Act or instrument;
individual means a natural person;
insert, in relation to a provision of this Act, includes substitute;
instrument includes a statutory instrument;
internal Territory means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory;
Jervis Bay Territory means the Territory mentioned in the Jervis Bay Territory Acceptance Act 1915 (Commonwealth);
make includes issue or grant;
minor means an individual who is under 18;
modification includes addition, omission or substitution;
month means a calendar month;
named month means one of the 12 months of the year;
Northern Territory means the Northern Territory of Australia;
number means —
(a)a number expressed in figures or words; or
(b)a letter; or
(c)a combination of a number so expressed and a letter;
oath, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration or promise;
office includes position;
omit, in relation to a provision of this Act or an Act, includes repeal;
party includes an individual or a body politic or corporate;
penalty includes forfeiture or punishment;
person includes an individual or a body politic or corporate;
power includes authority;
printed includes typewritten, lithographed or reproduced by any mechanical or electronic means;
proceeding means a legal or other action or proceeding;
provision, in relation to this Act or an Act, means words or other matter that form or forms part of this Act or the Act, and includes —
(a)a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub‑subparagraph or Schedule of or to this Act or the Act; or
(b)a section, clause, subclause, item, column, table or form of or in a Schedule to this Act or the Act; or
(c)the long title and any preamble to this Act or the Act;
record includes information stored or recorded by means of a computer;
repeal includes —
(a)revoke or rescind; or
(b)repeal by implication; or
(c)abrogate or limit the effect of this Act or the instrument concerned; or
(d)exclude from, or include in, the application of this Act or the instrument concerned any person, subject matter or circumstance;
sign includes the affixing of a seal or the making of a mark;
statutory declaration means a declaration made under an Act, or under a Commonwealth Act or an Act of another jurisdiction, that authorises a declaration to be made otherwise than in the course of a judicial proceeding;
statutory instrument means an instrument made or in force under or for the purposes of this Act, and includes an instrument made or in force under any such instrument;
swear, in relation to a person allowed by law to affirm, declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing words in a visible form.
(2)In a statutory instrument —
the Act means this Act.
13.Provisions relating to defined terms and gender and number
(1)If this Act defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.
(2)Definitions in or applicable to this Act apply except so far as the context or subject matter otherwise indicates or requires.
(3)In this Act, words indicating a gender include each other gender.
(4)In this Act —
(a)words in the singular include the plural; and
(b)words in the plural include the singular.
14.Meaning of “may” and “must” etc.
(1)In this Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
(2)In this Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.
(3)This clause has effect despite any rule of construction to the contrary.
15.Words and expressions used in statutory instruments
(1)Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Act, or relevant provisions of this Act, under or for the purposes of which the instrument is made or in force.
(2)This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.
16.Effect of express references to bodies corporate and individuals
In this Act, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” or “whoever” or another expression is used) —
(a)does not exclude a reference to a body corporate or an individual merely because elsewhere in this Act there is particular reference to a body corporate (however expressed); and
(b)does not exclude a reference to a body corporate or an individual merely because elsewhere in this Act there is particular reference to an individual (however expressed).
17.Production of records kept in computers etc.
If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Act —
(a)to produce the information or a document containing the information to a court, tribunal or person; or
(b)to make a document containing the information available for inspection by a court, tribunal or person,
then, unless the court, tribunal or person otherwise directs —
(c)the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and
(d)the production to the court, tribunal or person of the document in that form complies with the requirement.
18.References to this jurisdiction to be implied
In this Act —
(a)a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and
(b)a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.
19.References to officers and holders of offices
In this Act, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.
20.Reference to certain provisions of Act
If a provision of this Act refers —
(a)to a Part, section or Schedule by a number and without reference to this Act, the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Act; or
(b)to a Schedule without reference to it by a number and without reference to this Act, the reference, if there is only one Schedule to this Act, is a reference to the Schedule; or
(c)to a Division, Subdivision, subsection, paragraph, subparagraph, sub‑subparagraph, clause, subclause, item, column, table or form by a number and without reference to this Act, the reference is a reference to —
(i)the Division, designated by the number, of the Part in which the reference occurs; and
(ii)the Subdivision, designated by the number, of the Division in which the reference occurs; and
(iii)the subsection, designated by the number, of the section in which the reference occurs; and
(iv)the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and
(v)the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule in which the reference occurs; and
(vi)the subparagraph, designated by the number, of the paragraph in which the reference occurs; and
(vii)the sub‑subparagraph, designated by the number, of the subparagraph in which the reference occurs; and
(viii)the section, clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs,
as the case requires.
21.Reference to provisions of this Act or an Act is inclusive
In this Act, a reference to a portion of this Act or an Act includes —
(a)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Act or the Act referred to that forms the beginning of the portion; and
(b)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Act or the Act referred to that forms the end of the portion.
Example:A reference to “sections 5 to 9” includes both section 5 and section 9. It is not necessary to refer to “sections 5 to 9 (both inclusive)” to ensure that the reference is given an inclusive interpretation.
22.Performance of statutory functions
(1)If this Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.
(2)If this Act confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.
(3)If this Act confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.
23.Power to make instrument or decision includes power to amend or repeal
If this Act authorises or requires the making of an instrument or decision —
(a)the power includes power to amend or repeal the instrument or decision; and
(b)the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
24.Matters for which statutory instruments may make provision
(1)If this Act authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Act may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of —
(a)an Act or statutory instrument; or
(b)another document (whether of the same or a different kind),
as in force at a particular time or as in force from time to time.
(2)If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
(3)A statutory instrument may —
(a)apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or
(b)apply generally to all persons, matters or things or be limited in its application to —
(i)particular persons, matters or things; or
(ii)particular classes of persons, matters or things;
or
(c)otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
(4)A statutory instrument may —
(a)apply differently according to different specified factors; or
(b)otherwise make different provision in relation to —
(i)different persons, matters or things; or
(ii)different classes of persons, matters or things.
(5)A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.
(6)If this Act authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.
(7)If this Act authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Act may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Act in relation to another aspect of the matter or in relation to another matter.
(8)A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Act, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
(9)A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
25.Presumption of validity and power to make
(1)All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.
(2)A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Act or a particular provision of this Act.
26.Appointments may be made by name or office
(1)If this Act authorises or requires a person or body —
(a)to appoint a person to an office; or
(b)to appoint a person or body to exercise a power; or
(c)to appoint a person or body to do another thing,
the person or body may make the appointment by —
(d)appointing a person or body by name; or
(e)appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
(2)An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.
(1)If this Act authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Act, appoint —
(a)a person by name; or
(b)a particular officer, or the holder of a particular office, by reference to the title of the office concerned,
to act in the office.
(2)The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.
(3)The appointer may —
(a)determine the terms and conditions of the appointment, including remuneration and allowances; and
(b)terminate the appointment at any time.
(4)The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.
(5)The appointee must not act for more than one year during a vacancy in the office.
(6)If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until —
(a)the appointer otherwise directs; or
(b)the vacancy is filled; or
(c)the end of a year from the day of the vacancy,
whichever happens first.
(7)The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.
(8)While the appointee is acting in the office —
(a)the appointee has all the powers and functions of the holder of the office; and
(b)this Act and other laws apply to the appointee as if the appointee were the holder of the office.
(9)Anything done by or in relation to a person purporting to act in the office is not invalid merely because —
(a)the occasion for the appointment had not arisen; or
(b)the appointment had ceased to have effect; or
(c)the occasion for the person to act had not arisen or had ceased.
(10)If this Act authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.
28.Powers of appointment imply certain incidental powers
(1)If this Act authorises or requires a person or body to appoint a person to an office —
(a)the power may be exercised from time to time as occasion requires; and
(b)the power includes —
(i)power to remove or suspend, at any time, a person appointed to the office; and
(ii)power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and
(iii)power to reinstate or reappoint a person removed or suspended; and
(iv)power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and
(v)power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).
(2)The power to remove or suspend a person under subclause (1)(b) may be exercised even if this Act provides that the holder of the office to which the person was appointed is to hold office for a specified period.
(3)The power to make an appointment under subclause (1)(b) may be exercised from time to time as occasion requires.
(4)An appointment under subclause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
(1)If this Act authorises a person or body to delegate a function, the person or body may, in accordance with this Act and any other applicable law, delegate the function to —
(a)a person or body by name; or
(b)a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
(2)The delegation may be —
(a)general or limited; and
(b)made from time to time; and
(c)revoked, wholly or partly, by the delegator.
(3)The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
(4)A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
(5)The delegate may, in the performance of a delegated function, do anything that is incidental to the delegated function.
(6)A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
(7)A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
(8)If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.
(9)If —
(a)the delegator is a specified officer or the holder of a specified office; and
(b)the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office,
then —
(c)the delegation continues in force; and
(d)the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.
(10)If —
(a)the delegator is a body; and
(b)there is a change in the membership of the body,
then —
(c)the delegation continues in force; and
(d)the body as constituted for the time being is taken to be the delegator for the purposes of this clause.
(11)If a function is delegated to a specified officer or the holder of a specified office —
(a)the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b)the function may be exercised by the person for the time being occupying or acting in the office concerned.
(12)A function that has been delegated may, despite the delegation, be exercised by the delegator.
(13)The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.
(14)Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
(15)If this Act authorises the delegation of a function, the function may be subdelegated only if the Act expressly authorises the function to be subdelegated.
30.Exercise of powers before commencement
(1)If a provision of this Act (the empowering provision) that has not commenced would, had it commenced, confer a power —
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing,
then —
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect,
before the empowering provision commences.
(2)If a provision of an Act (the empowering provision) that does not commence on its enactment would, had it commenced, amend a provision of this Act so that it would confer a power —
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing,
then —
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect,
before the empowering provision commences.
(3)If —
(a)this Act has commenced and confers a power to make a statutory instrument (the basic statutory instrument‑making power); and
(b)a provision of an Act that does not commence on its enactment would, had it commenced, amend this Act so as to confer additional power to make a statutory instrument (the additional instrument‑making power),
then —
(c)the basic instrument‑making power and the additional instrument‑making power may be exercised by making a single instrument; and
(d)any provision of the instrument that required an exercise of the additional instrument making power is to be treated as made under subclause (2).
(4)If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of —
(a)enabling the exercise of a power mentioned in the subclause; or
(b)bringing an appointment, instrument or other thing made or done under such a power into effect,
the instrument or provision takes effect —
(c)on the making of the instrument; or
(d)on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.
(5)If —
(a)an appointment is made under subclause (1) or (2); or
(b)an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose mentioned in subclause (4),
the appointment, instrument or provision takes effect —
(c)on the commencement of the relevant empowering provision; or
(d)on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.
(6)Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.
(7)After the enactment of a provision mentioned in subclause (2) but before the provision’s commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subclause (2) as amended by the empowering provision.
(8)In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
Part 5 — Distance, time and age
31.Matters relating to distance, time and age
(1)In the measurement of distance for the purposes of this Act, the distance is to be measured along the shortest road ordinarily used for travelling.
(2)If a period beginning on a given day, act or event is provided or allowed for a purpose by this Act, the period is to be calculated by excluding the day, or the day of the act or event, and —
(a)if the period is expressed to be a specified number of clear days or at least a specified number of days, by excluding the day on which the purpose is to be fulfilled; and
(b)in any other case, by including the day on which the purpose is to be fulfilled.
(3)If the last day of a period provided or allowed by this Act for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
(4)If the last day of a period provided or allowed by this Act for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
(5)If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
(6)If, in this Act, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
(7)For the purposes of this Act, a person attains an age in years at the beginning of the person’s birthday for the age.
Part 6 — Effect of repeal, amendment or expiration
32.Time of Act ceasing to have effect
If a provision of this Act is expressed —
(a)to expire on a specified day; or
(b)to remain or continue in force, or otherwise have effect, until a specified day,
the provision has effect until the last moment of the specified day.
33.Repealed Act provisions not revived
If a provision of this Act is repealed or amended by an Act, or a provision of an Act, the provision is not revived merely because the Act or the provision of the Act —
(a)is later repealed or amended; or
(b)later expires.
34.Saving of operation of repealed Act provisions
(1)The repeal, amendment or expiry of a provision of this Act does not —
(a)revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b)affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c)affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d)affect a penalty incurred in relation to an offence arising under the provision; or
(e)affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.
(2)Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
35.Continuance of repealed provisions
If an Act repeals some provisions of this Act and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
36.Act and amending Acts to be read as one
This Act and all Acts amending this Act are to be read as one.
Part 7 — Instruments under Act
37.Schedule applies to statutory instruments
(1)This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Act, and things that may be done or are required to be done under this Act, except so far as the context or subject matter otherwise indicates or requires.
(2)The fact that a provision of this Schedule refers to this Act and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Act.
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
additional instrument‑making powerSch. 1 cl. 30(3)
adultSch. 1 cl. 12(1)
affidavitSch. 1 cl. 12(1)
amendSch. 1 cl. 12(1)
appellable decision28(1)
appointSch. 1 cl. 12(1)
appropriate authority35(1)
ARNECC3(1)
associated financial transaction3(1)
AustraliaSch. 1 cl. 12(1)
authorised person45(1)
Authority3(1)
basic statutory instrument‑making powerSch. 1 cl. 30(3)
business day43(1), Sch. 1 cl. 12(1)
calendar monthSch. 1 cl. 12(1)
calendar yearSch. 1 cl. 12(1)
client authorisation3(1)
commencementSch. 1 cl. 12(1)
Commissioner3(1)
CommonwealthSch. 1 cl. 12(1)
compliance examination3(1), 33(1)
conferSch. 1 cl. 12(1)
contraveneSch. 1 cl. 12(1)
conveyancing transaction3(1)
corresponding law3(1)
countrySch. 1 cl. 12(1)
date of assentSch. 1 cl. 12(1)
definitionSch. 1 cl. 12(1)
digital signature3(1)
digitally sign3(1)
documentSch. 1 cl. 12(1)
ECNL3(1)
Electronic Conveyancing National Law3(1)
ELN3(1), 13(1)
ELNO3(1), 15(1), 32
empowering provisionSch. 1 cl. 30(1), (2)
expireSch. 1 cl. 12(1)
external TerritorySch. 1 cl. 12(1)
extrinsic materialSch. 1 cl. 8(1)
failSch. 1 cl. 12(1)
financial yearSch. 1 cl. 12(1)
foreign countrySch. 1 cl. 12(1)
functionSch. 1 cl. 12(1)
GazetteSch. 1 cl. 12(1)
Gazette noticeSch. 1 cl. 12(1)
gazettedSch. 1 cl. 12(1)
Government PrinterSch. 1 cl. 12(1)
individualSch. 1 cl. 12(1)
insertSch. 1 cl. 12(1)
instrumentSch. 1 cl. 12(1)
Intergovernmental Agreement3(1)
internal TerritorySch. 1 cl. 12(1)
Jervis Bay TerritorySch. 1 cl. 12(1)
jurisdiction3(1)
land titles legislation3(1)
law3(1)
law of this jurisdiction3(1)
lodge3(1)
makeSch. 1 cl. 12(1)
maySch. 1 cl. 14(1)
minorSch. 1 cl. 12(1)
model provisions24(1)
modificationSch. 1 cl. 12(1)
monthSch. 1 cl. 12(1)
mustSch. 1 cl. 14(2)
named monthSch. 1 cl. 12(1)
Northern TerritorySch. 1 cl. 12(1)
numberSch. 1 cl. 12(1)
oathSch. 1 cl. 12(1)
officeSch. 1 cl. 12(1)
omitSch. 1 cl. 12(1)
operating requirements3(1), 22(1)
ordinary meaningSch. 1 cl. 8(1)
participating jurisdiction3(1)
participation agreement3(1)
participation rules3(1), 23(1)
partySch. 1 cl. 12(1)
penaltySch. 1 cl. 12(1)
personSch. 1 cl. 12(1)
powerSch. 1 cl. 12(1)
printedSch. 1 cl. 12(1)
proceedingSch. 1 cl. 12(1)
provisionSch. 1 cl. 12(1)
recordSch. 1 cl. 12(1)
Registrar3(1)
registry instrument3(1)
repealSch. 1 cl. 12(1)
responsible tribunal3(1)
review period47(1)
section 2830(2)
signSch. 1 cl. 12(1)
State3(1), 7A(2)
statutory declarationSch. 1 cl. 12(1)
statutory instrumentSch. 1 cl. 12(1)
subscriber3(1), 32
swearSch. 1 cl. 12(1)
Territory3(1)
the ActSch. 1 cl. 12(2)
this jurisdiction3(1)
titles register3(1)
wordSch. 1 cl. 12(1)
writingSch. 1 cl. 12(1)