western australia verification of identity legislation pack · the western australian verification...

Western AustraliaVerification of Identity

legislation packA compilation of rules, requirements and other

resources for due diligence in Western Australia.

ContentsClick on the links below to navigate through the documents

VOI reasonable steps flowchart

Western Australian VOI Practice

WA Participation Rules V4

WA Operating Requirements V4

LPLC Troubleshooting VOI

VOI FAQs

ARNECC Guidance notes

IDfy

Does the client have authority to instruct you?

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

Does the client have capacity to give instructions?

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

Have you taken reasonable steps to verify the

identity of the client?

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

Has your client declared the ID as true copies?

Get a client declaration confirming their identity.

Have you retained a copy of any documents which establish:

authority + identity?

Retain supporting documents as evidence.

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

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

Participation Rules.

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

steps to verify the identity of clients.

Are you conducting due diligence verifying your client?

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

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

confident they’re taking reasonable steps to verify

the identity of their clients.

The Western Australian Verification of Identity Practice (VOI practice) was introduced on 1 July 2012 and came into full effect on 2 January 2013 after a six-month transitional period.

The VOI practice requires conveyancers to verify the identity of a person transacting and their authority to deal with an interest in land. It was implemented to reduce the risk of land title fraud through identity theft.

The Verification of Identity Standard has two base requirements:

1. Identity document production – production of current, original identity documents from the categoriesin the VOI practice.

2. Visual verification of identity – a visual ‘face-to-face’ comparing the photograph on the current originalidentity documents with the person being identified.

In accordance with the VOI practice, a statement by a conveyancer, lawyer or mortgagee is required. The statement can be made:

• in the form of a statutory declaration

• on letterhead and lodged with the relevant document

• on a transfer of land form and a mortgage form that incorporates the VOI statement.

Western Australia Verification of Identity Practice

Useful links

Verification of identityLandgate verification of identity page

Land Titles Registration practice manual

Verification of Identity Practice flyer

Verification of identity for self-represented parties

VOI information session presentation

Electronic conveyancing Landgate electronic conveyancing page

WA Participation Rules Version 3.1

WA Operating Requirements Version 3.1

Registrar’s information session on e-conveyancing - presentation

Registrar’s information session on e-conveyancing - recording

Registrar’s information session on e-conveyancing - FAQs

Paperless conveyancing discussion paper

Eligible documents list

Electronic lodgement timeline

https://www0.landgate.wa.gov.au/titles-and-surveys/property-ownership/fraud-protection/verification-of-identity

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0005/11021/LTRPM.pdf

https://www0.landgate.wa.gov.au/docvault.nsf/web/PS_TR_VI/$file/VOIBRO.pdf

https://www0.landgate.wa.gov.au/titles-and-surveys/property-ownership/survey-services/self-represented-parties

https://www0.landgate.wa.gov.au/docvault.nsf/web-new/PS_TR_VI/$FILE/InfoSession.pdf

https://www0.landgate.wa.gov.au/for-individuals/legislation-and-reform/electronic-conveyancing

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0018/11763/Western-Australian-Participation-Rules-Version-3.1.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0019/11764/Western-Australian-Operating-Requirements-Version-3.1.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0020/19307/Registrars-Information-Session-on-e-conveyancing-presentation.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0020/19307/Registrars-Information-Session-on-e-conveyancing-presentation.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0019/19315/FAQ_Registrars-Information-Sessions.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0006/16449/Paperless-conveyancing-discussion-paper.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0016/16450/Eligible-documents-for-paperless-conveyancing.pdf

https://www0.landgate.wa.gov.au/about-us/publications-and-awards/bulletins-and-manuals/customer-information-bulletins/cib_2016/bulletin-no.-289-13-december-2016

WA Participation RulesVersion 4

landgate.wa.gov.au

Commencement date – 22 July 2017

WA Participation Rules – Version 4

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

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

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

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

3 COMPLIANCE WITH PARTICIPATION RULES .............................................................. 12

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

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

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

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

4.4 Insurance ......................................................................................................................................... 14

5 THE ROLE OF SUBSCRIBERS ....................................................................................... 14

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

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

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

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

5.5 Subscriber as trustee and partnerships ........................................................................................... 15

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

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

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

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

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

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

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

6.7 Compliance with laws and Participation Rules ................................................................................. 19 6.8 Compliance with directions .............................................................................................................. 19

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

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

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

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

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

6.14 (Deleted) .......................................................................................................................................... 20

7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY .......................... 20

7.1 Protection measures ........................................................................................................................ 20

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

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

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

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

7.6 (Deleted) .......................................................................................................................................... 23 7.7 Notification of Jeopardised Conveyancing Transactions ................................................................. 23


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

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

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

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

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

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

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

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

9.4 Rights and obligations on suspension, termination or resignation ................................................... 25 9.5 Further steps by Subscriber ............................................................................................................. 25

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

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

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

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

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

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

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

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

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

SCHEDULE 7 – SUSPENSION EVENTS, TERMINATION EVENTS AND SUSPENSION AND

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

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

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


PARTICIPATION RULES

1 PRELIMINARY

These Participation Rules constitute the Participation Rules determined by the Registrar

pursuant to section 23 of the ECNL.

2 DEFINITIONS AND INTERPRETATION

2.1 Definitions

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

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

Participation Rules).

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

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

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

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

required for a Person to access the ELN.

Additional Participation Rules means the additional Participation Rules specific to the

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

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

1959 (Cth).

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

2, as amended from time to time.

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

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

Australia is the Electronic Conveyancing Act 2014 (WA).

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

Australia.

APRA means the Australian Prudential Regulation Authority.

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

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

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

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

1981 (SA).


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

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

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

Registry Instrument or other Document in the Titles Register.

Certification Authority means a Gatekeeper Accredited Service Provider that issues

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

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

Certificates it issues.

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

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

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

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

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

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

have not provided a Client Authorisation.

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

the Subscriber acting solely as the Client’s Representative.

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

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

in Schedule 4, as amended from time to time.

Commonwealth has the meaning given to it in the ECNL.

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

Compliance Examination Procedure means the obligations and procedures set out in

Schedule 5, as amended from time to time.

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

proper authority.

Contact Details means a Subscriber’s:

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

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

the ELNO.

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

Corporations Act means the Corporations Act 2001 (Cth).


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

advisers.

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

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

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

that Act.

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

representing the Crown or another entity representing the Crown.

Digital Certificate means an electronic certificate Digitally Signed by the Certification

Authority which:

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

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

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

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

contents of each.

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

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

Document has the meaning given to it in the ECNL.

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

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

Instrument or other electronic document payable to the Duty Authority.

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

subject of the Conveyancing Transaction is situated.

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

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

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

ELN has the meaning given to it in the ECNL.

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

perform administrative functions within the ELN.

ELNO has the meaning given to it in the ECNL.

Gatekeeper means the Commonwealth government strategy to develop PKI to facilitate

government online service delivery and e-procurement.


Gatekeeper Accredited Service Provider means a service provider accredited by the

Gatekeeper Competent Authority.

Gatekeeper Competent Authority means the entity which approves an application for

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

Government Chief Information Officer, Australian Government Information Management

Office, Department of Finance and Deregulation.

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

paragraph 4.

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

represented by a Subscriber, and who:

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

insured in compliance with Insurance Rule 2; and

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

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

Standard.

Identity Agent Certification means a certification in substantial compliance with the

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

Identity Declarant means a Person providing an Identifier Declaration.

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

with the Verification of Identity Standard.

Individual has the meaning given to it in the ECNL.

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

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

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

when they become due and payable; or

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

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

moratorium involving any of them; or

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

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

appointment; or

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

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

or


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

with the Person under the law of any Jurisdiction.

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

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

Jurisdiction has the meaning given to it in the ECNL.

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

decrypt.

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

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

Subscriber.

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

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

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

Jurisdiction’s Titles Register.

Land Registry Fees means Information Fees and Lodgment Fees.

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

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

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

Licensed Conveyancer means a Person licensed or registered under the relevant

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

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

purposes of the Settlement Agents Act 1981 (WA).

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

Organisation.

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

established under any Commonwealth, State or Territory Law.

Lodge has the meaning given to it in the ECNL.

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

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

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

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

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

Participating Subscribers.


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

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

electronic Document for Lodgment.

Mortgage Broker means an individual who is:

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

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

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

Service on behalf of that licensee; or

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

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

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

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

Outstanding Conveyancing Transaction means a Conveyancing Transaction for which

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

has not been Lodged.

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

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

indirectly because it is a Representative of a Party.

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

ECNL.

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

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

does not include a Representative.

Person has the meaning given to it in the ECNL.

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

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

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

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

distribute and revoke Digital Certificates.

Prescribed Requirement means any Published requirement of the Registrar that

Subscribers are required to comply with.

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

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


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

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

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

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

confidentiality, integrity, authenticity and non-repudiation.

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

Territory.

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

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

Record has the meaning given to it in the ECNL.

Registrar has the meaning given to it in the ECNL.

Registration Authority means a Gatekeeper Accredited Service Provider that:

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

evidence of identity Documentation submitted by the applicant; and

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

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

Certification Authority; and

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

Subscribers.

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

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

Land Registry.

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

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

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

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

Registrar for a Lodgment Case.

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

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

time.

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

and other electronic Documents on behalf of the Subscriber.


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

Western Australia.

Subscriber has the meaning given to it in the ECNL.

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

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

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

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

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

amended from time to time.

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

information relating to the Subscriber held in the ELN.

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

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

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

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

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

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

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

Conveyancing Transaction.

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

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

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

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

behalf of the Subscriber.

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

from time to time.

2.2 Interpretation

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

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

amended, varied or substituted from time to time.

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

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

issued under that legislation or provision; and


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

legislation or provision.

2.2.3 A word importing:

(a) the singular includes the plural; and

(b) the plural includes the singular; and

(c) a gender includes every other gender.

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

assigns.

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

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

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

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

on which the obligation is incurred.

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

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

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

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


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

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

words are not limited by reference to that class.

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


2.2.12 The word “or” is not exclusive.

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

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

will prevail to the extent of the inconsistency.

3 COMPLIANCE WITH PARTICIPATION RULES

The Subscriber must:

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

Subscriber; and

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


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

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

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

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

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

4 ELIGIBILITY CRITERIA

4.1 ABN

The Subscriber must have an ABN.

4.2 Status

4.2.1 The Subscriber must be a Person or a partnership.

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

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

other legislation; and

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

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

can reasonably contemplate will be required by these Participation Rules.

4.3 Character

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

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

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

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

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

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

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

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

against any law in connection with business, professional or commercial

activities; or

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

or

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

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


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

or

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

4.3.2 Where the Subscriber is:

(a) an ADI; or

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

(c) a Licensed Conveyancer; or

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

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

State or a Territory; or

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

(g) a Local Government Organisation,

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

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

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

(b) an Australian Legal Practitioner; or

(c) a Licensed Conveyancer; or

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


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

activities authorised by an Australian Credit Licence; or

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

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

director, partner, officer or Subscriber Administrator.

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

4.4 Insurance

The Subscriber must comply with the Insurance Rules.

5 THE ROLE OF SUBSCRIBERS


5.1 Subscriber’s roles

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

of Clients when accessing and using the ELN.

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

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

5.2 Subscriber as principal

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

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

relationship entered into by the Subscriber.

5.3 Subscriber who acts as Representative

A Representative must:

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

Conveyancing Transaction is situated regarding who can conduct a Conveyancing

Transaction; and

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

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

situated regarding who can conduct a Conveyancing Transaction and Digitally Sign

Registry Instruments and other electronic Documents.

5.4 Responsible Subscribers

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

Subscriber for every Lodgment Case.

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

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

or suspects is incorrect, incomplete, false or misleading.

5.5 Subscriber as trustee and partnerships

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

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

5.5.2 If the Subscriber is a partnership:

(a) these Participation Rules bind the partnership; and

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

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


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

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

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

consents, signing and producing Documents and getting Documents completed and

signed) to give full effect to this Participation Rule.

6 GENERAL OBLIGATIONS

6.1 Ensure User compliance

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

Participation Rules as appropriate to their use of the ELN.

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

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

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

Subscriber must:

(a) promptly update its System Details accordingly; or

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

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

the changes required.

6.3 Client Authorisation

If the Subscriber is a Representative, the Subscriber must:

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

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

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

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

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

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

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

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

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

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

Subscriber’s Client or their Client Agent.


6.4 Right to Deal

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

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

has the right to enter into the Conveyancing Transaction.

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

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

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

6.5 Verification of identity

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

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

(b) Mortgagors:

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

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

have a Representative; and

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

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

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

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

Subscriber is reasonably satisfied that the mortgagee has taken reasonable

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

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

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

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

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

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

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

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

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

mortgagee has taken reasonable steps to verify the identity of each

mortgagor, former mortgagor or their agent; and

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

the Signer; and

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

appointment as a Subscriber Administrator.


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

mortgagee represented by the Subscriber, can either:

(a) apply the Verification of Identity Standard; or

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

reasonable steps.

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

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

where:

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

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

Identity Declarant is not genuine; or

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

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

Person Being Identified or the Identity Declarant; or

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

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

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

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

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

and

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

Being Identified.

6.5.5 If the Verification of Identity Standard is used:

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

Agent; and

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

Identity Agent to use the Verification of Identity Standard; and

(c) the Identity Verifier must be:

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

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

mortgagee’s Identity Agent; and

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


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

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

copy of the original by the Identity Agent; and

(ii) an Identity Agent Certification.

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

by:

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

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

mortgagee’s Identity Agent,

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

Rule 6.5.1.

6.6 Supporting evidence

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

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

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

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

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

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

and

(d) any evidence supporting verification of identity; and

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

6.7 Compliance with laws and Participation Rules

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

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

situated and these Participation Rules.

6.8 Compliance with directions

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

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

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

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


6.9 Assistance

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

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

Legislation in relation to a particular Conveyancing Transaction.

6.10 Protection of information

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

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

from unauthorised use, reproduction or disclosure.

6.11 Information

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

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

belief correct, complete and not false or misleading.

6.12 No assignment

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

the ELN.

6.13 Mortgages

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

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

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

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

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

(c) provide Certification 5 of the Certification Rules.

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

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

6.14 (Deleted)

7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY

7.1 Protection measures

The Subscriber must take reasonable steps to:


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

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

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

Subscriber’s computers; and

(iii) protection of Security Items; and

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

obligations; and

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

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

the ELN; and

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

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

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

7.2 Users


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

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

ELN.

7.3 User access

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

(a) its Users’ Access Credentials; and

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

(c) administrative rights linked to those Access Credentials.

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

Administrator.

7.3.3 The Subscriber:

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

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

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

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


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

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

Subscriber has against the Person).

7.4 Signers

7.4.1 The Subscriber must:

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

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


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


activities; or


or

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

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

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

7.4.2 Where a Signer is:

(a) an Australian Legal Practitioner; or

(b) a Licensed Conveyancer; or

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


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

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

7.5 Digital Certificates

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

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

Subscriber’s Digital Signature.

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

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

electronic Registry Instruments or other electronic Documents.


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

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

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

7.6 (Deleted)

7.7 Notification of Jeopardised Conveyancing Transactions

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

Transaction has been Jeopardised:

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

relating to the Conveyancing Transaction immediately; or

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

immediately notify the ELNO of the situation.

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

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

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

Jeopardised.

7.8 Revoking authority

7.8.1 If a Subscriber no longer intends:

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

and use of the ELN; or

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

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

revoke the Signer’s Digital Certificate; or

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

User’s administrative rights within the ELN.

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

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

Subscriber.

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

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

other than in accordance with the restriction.


7.9 Compromised Security Items

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

or is likely to be Compromised, the Subscriber must:

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

User from accessing and using the ELN; and

(b) for a Digital Certificate:

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

been used to Digitally Sign any electronic Documents and unsign any

electronic Documents in accordance with Participation Rule 7.9.2; and

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

Certificate (including doing everything reasonably necessary to cause the

Certification Authority to revoke or cancel it); and

(iii) promptly notify the ELNO.

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

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

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

Digitally Signed:

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

immediately; or

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

immediately notify the ELNO of the situation.

7.10 Certifications

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

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

Document.

8 AMENDMENT OF PARTICIPATION RULES

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

the Registrar pursuant to the Amendment to Participation Rules Procedure.

9 RESTRICTION, SUSPENSION AND TERMINATION

9.1 Comply with directions relating to restriction of access or use

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

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


9.2 Suspension at direction of Registrar

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

Registrar, at any time if a Suspension Event occurs.

9.3 Termination at direction of Registrar

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

Registrar, at any time if a Termination Event occurs.

9.4 Rights and obligations on suspension, termination or resignation

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

affect any right or liability of any party which:

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

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

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

termination or resignation takes effect.

9.5 Further steps by Subscriber

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

Subscriber must, at its own expense:

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

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

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

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

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

Person; and

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

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

consents, submitting electronic Documents, Digitally Signing electronic Documents

where required, and producing Documents; and

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

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

the restriction, suspension, termination or resignation.


10 COMPLIANCE


(a) comply with Section 34 of the ECNL and the Compliance Examination Procedure;

and

(b) give written notice to the ELNO, as soon as practicable, if it becomes aware that it

has breached or may in the future be no longer able to comply with these

Participation Rules; and

(c) remedy any non-compliance with these Participation Rules within 10 Business Days

(or such longer time determined by the Registrar in his or her absolute discretion

having regard to the nature of the breach) from when it becomes aware that it has

breached these Participation Rules; and

(d) take such action as is necessary in order to avoid a breach in circumstances where

the Subscriber becomes aware that it may in the future be no longer able to comply

with these Participation Rules.

11 PROHIBITIONS

The Subscriber must not:

(a) modify or alter any Registry Information or Title Activity Check data for a

Conveyancing Transaction or do anything that allows or causes another Person to

do any of these things; or

(b) use, reproduce or disclose, or allow another Person to use, reproduce or disclose,

Registry Information or Title Activity Check data for a Conveyancing Transaction,

except for the purpose of the Conveyancing Transaction or where required by law to

do so; or

(c) use or participate in the ELN other than in accordance with these Participation

Rules; or

(d) other than information which the Subscriber enters into the ELN, use, reproduce or

disclose any information passing into or out of the ELN in connection with a

Conveyancing Transaction except for the purpose of the Conveyancing Transaction

or where required by law to do so.

12 ADDITIONAL PARTICIPATION RULES

The Subscriber must comply with the Additional Participation Rules, if any.


SCHEDULE 1 – ADDITIONAL PARTICIPATION RULES

None.


SCHEDULE 2 – AMENDMENT TO PARTICIPATION RULES PROCEDURE

1 Amendments with prior consultation

1.1 Any amendment to these Participation Rules must be the subject of good faith

consultation by the Registrar with a representative group of Subscribers and, where

relevant, Subscribers’ local and national professional associations, regulators and insurers

(as reasonably determined by the Registrar) before the amendment comes into effect.

1.2 Each amendment must be notified to all Subscribers at least 20 Business Days before

the amendment comes into effect. The notification must contain the date the

amendment comes into effect.

2 Amendments without prior consultation

2.1 The Registrar may determine that an amendment to these Participation Rules need not be

the subject of prior consultation or notification in accordance with paragraph 1 before the

amendment comes into effect, if the Registrar determines in good faith that:

(a) such a course is required by law; or

(b) an emergency situation, as referred to in the ECNL, exists.

2.2 Notwithstanding paragraph 2.1, each amendment must be notified to all Subscribers as

soon as reasonably practicable before the amendment comes into effect. The

notification must contain the date the amendment comes into effect.


SCHEDULE 3 – CERTIFICATION RULES

1 The Certifier has taken reasonable steps to verify the identity of the

[transferor/transferee/mortgagee/mortgagor/caveator/applicant].

2 The Certifier holds a properly completed Client Authorisation for the Conveyancing

Transaction including this Registry Instrument or Document.

3 The Certifier has retained the evidence supporting this Registry Instrument or Document.

4 The Certifier has taken reasonable steps to ensure that this Registry Instrument or

Document is correct and compliant with relevant legislation and any Prescribed

Requirement.

5 The Certifier, or the Certifier is reasonably satisfied that the mortgagee it represents,:

(a) has taken reasonable steps to verify the identity of the mortgagor; and

(b) holds a mortgage granted by the mortgagor on the same terms as this Registry

Instrument or Document.

6 The Certifier has:

(a) retrieved; and

(b) either securely destroyed or made invalid

the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry

Instrument or Document.


SCHEDULE 4 - CLIENT AUTHORISATION FORM CLIENT AUTHORISATION

When this form is signed, the Representative is authorised to act for the Client in a Conveyancing Transaction(s). Privacy Collection Statement: The information in this form is collected under statutory authority and used for the purpose of maintaining publicly searchable registers and indexes.

Representative Reference:_______________________

CLI

ENT

DET

AIL

S CLIENT 1 CLIENT 2

NAME

ACN/ARBN

ADDRESS

TRA

NSA

CTI

ON

DET

AIL

S

AUTHORITY TYPE SPECIFIC AUTHORITY

(set out conveyancing transaction details below)

STANDING AUTHORITY ends on revocation or expiration date:___/____/___

(tick relevant conveyancing transaction(s) below)

BATCH AUTHORITY

(attach details of conveyancing transaction(s))

CONVEYANCING TRANSACTION(S) 1 CONVEYANCING TRANSACTION(S) 2

PROPERTY ADDRESS

LAND TITLE REFERENCE(S)

(and/or property description)

CONVEYANCING TRANSACTION(S)

TRANSFER MORTGAGE CAVEAT TRANSFER MORTGAGE CAVEAT

PRIORITY/ SETTLEMENT NOTICE

DISCHARGE/ RELEASE OF MORTGAGE

WITHDRAWAL OF CAVEAT




OTHER OTHER

ADDITIONAL INSTRUCTIONS

CLI

ENT

AU

THO

RIS

ATI

ON

AN

D S

IGN

ING

CLIENT 1 / CLIENT AGENT 1 CLIENT 2 / CLIENT AGENT 2

I CERTIFY that:

(a) I am the Client or Client Agent; and

(b) I have the legal authority to instruct the Representative in relation to the Conveyancing Transaction(s); and

(c) If I am acting as a Client Agent that I have no notice of the revocation of my authority to act on behalf of the Client.

I AUTHORISE the Representative to act on my behalf, or where I am a Client Agent to act on behalf of the Client, in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on my behalf as required for the Conveyancing Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land Registry; and

(c) authorise any financial settlement involved in the Conveyancing Transaction(s); and

(d) do anything else necessary to complete the Conveyancing Transaction(s).

DATE / /

SIG

N H

ERE

DATE / /

SIG

N H

ERE

CLIENT/CLIENT AGENT NAME CLIENT/CLIENT AGENT NAME

CAPACITY CAPACITY

AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable) AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable)

NAME DATE NAME DATE


REP

RES

ENTA

TIVE

DET

AIL

S A

ND

SIG

NIN

G REPRESENTATIVE REPRESENTATIVE AGENT (if applicable)

NAME

ACN/ARBN

ADDRESS

I/We CERTIFY that reasonable steps have been taken to ensure that this Client Authorisation was signed by each of the Persons named above as Client or Client Agent.

SIGNATURE OF REPRESENTATIVE OR REPRESENTATIVE AGENT IF APPLICABLE:

DATE / /

SIG

N H

ERE

DATE / /

SIG

N H

ERE

SIGNATORY NAME: SIGNATORY NAME:

CAPACITY: CAPACITY:

Terms of this Client Authorisation

1 What is Authorised

The Client authorises the Representative to act on behalf of the Client in accordance with

the terms of this Client Authorisation and any Participation Rules and any Prescribed

Requirement to:

(a) sign Documents on the Client’s behalf as required for the Conveyancing

Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land

Registry; and



The Client acknowledges that the Client is bound by any Documents required in

connection with a Conveyancing Transaction that the Representative signs on the Client’s

behalf in accordance with this Client Authorisation.

2 Mortgagees

Where:

(a) the Representative represents the Client in the Client’s capacity as mortgagee; and

(b) the Client represents to the Representative that the Client has taken reasonable

steps to verify the identity of the mortgagor,

the Client indemnifies the Representative for any loss resulting from the Client’s failure to

take reasonable steps to verify the identity of the mortgagor.


3 Revocation

This Client Authorisation may be revoked by either the Client or the Representative giving

notice in writing to the other that they wish to end this Client Authorisation.

4 Privacy and Client Information

The Client acknowledges that information relating to the Client that is required to complete

a Conveyancing Transaction, including the Client’s Personal Information, may be collected

by and disclosed to the Duty Authority, the ELNO, the Land Registry, the Registrar and

third parties (who may be located overseas) involved in the completion of the

Conveyancing Transaction or the processing of it, and consents to the collection and

disclosure of that information to any of those recipients, including to those who are

overseas. For further information about the collection and disclosure of your Personal

Information, refer to the relevant party’s privacy policy.

5 Applicable Law

This Client Authorisation is governed by the law in force in the Jurisdiction in which the

Property is situated. The Client and the Representative submit to the non-exclusive

jurisdiction of the courts of that place.

6 Meaning of Words Used in this Client Authorisation

In this Client Authorisation, capitalised terms have the meaning set out below:

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

Jurisdiction in which the property is situated and in South Australia is a legal practitioner

for the purposes of the Legal Practitioners Act 1981 (SA).

Batch Authority means an authority for the Representative to act for the Client in a batch

of Conveyancing Transactions details of which are attached to this Client Authorisation.

Capacity means the role of the signatory (for example an attorney or a director of a

company).

Caveat means a Document giving notice of a claim to an interest in land that may have

the effect of an injunction to stop the registration of a Registry Instrument or other

Document in the Titles Register.

Client means the Person or Persons named in this Client Authorisation.

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

the Representative acting solely in this role.


Discharge/Release of Mortgage means a Document that discharges or releases a

Mortgage.



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

is situated.


Jurisdiction by the application law, as amended from time to time.

ELNO means Electronic Lodgment Network Operator and has the meaning given to it in

the ECNL.

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

mortgagee represented by a Representative, and who:

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

appropriately insured; and

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

on behalf of the Representative or mortgagee in accordance with the Verification of

Identity Standard.

Jurisdiction means an Australian State or Territory.


Jurisdiction’s Titles Register.

Land Title Reference means the relevant Land Registry’s unique identifier(s) for the

property.

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

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


legislation of the Jurisdiction in which the property is situated and in Western Australia is a

real estate settlement agent for the purposes of the Settlement Agents Act 1981 (WA).

Mortgage means a Document by which a Person charges an estate or interest in land as

security.

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

ECNL.



Prescribed Requirement means any Published requirement of the Registrar that

Representatives are required to comply with.

Priority/Settlement Notice means a notice (other than a Caveat) which prevents (subject

to specified exceptions) registration or recording in the Titles Register of a Registry


Instrument or other Document affecting land or an interest in land until the notice lapses or

is withdrawn, removed or cancelled.




Representative is the Australian Legal Practitioner, Law Practice or Licensed

Conveyancer named in this Client Authorisation who acts on behalf of the Client and

under the relevant legislation of the Jurisdiction in which the property is situated can

conduct a Conveyancing Transaction.

Representative Agent means a Person authorised by a Representative to act as the

Representative’s agent. For the avoidance of doubt this can include an Identity Agent.

Specific Authority means an authority for the Representative to act for the Client in

completing the Conveyancing Transactions described in this Client Authorisation.

Standing Authority means an authority for the Representative to act for the Client as

described in this Client Authorisation for the period of time set out in this Client

Authorisation.


Transfer includes the preparation of all Documents required to effect a purchase or sale

of land or any other transfer of land, and the liaison with, where relevant, any mortgagee

or proposed mortgagee.

Withdrawal of Caveat means a Document which removes a Caveat.


SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE

1 Power to request information and Documents

1.1 The Registrar or the Registrar’s delegate must provide notice to the Subscriber.

1.2 The notice must state:

(a) the time within which the information must be furnished and/or the Document must

be produced (which must be not less than 10 Business Days after the giving of the

notice); and

(b) how information is to be furnished and/or the Document is to be produced.

1.3 A notice under paragraph 1.2 may be given in writing or by any electronic means that the

Registrar or the Registrar’s delegate considers appropriate.

1.4 The Subscriber to whom a notice is given under paragraph 1.2 must comply with the

requirements set out in the notice within the period specified in the notice.

1.5 (Deleted)

2 Inspection and retention of Documents

2.1 If an original Document is produced in accordance with a notice given under paragraph

1.2, the Registrar or the Registrar’s delegate may do one or more of the following:

(a) inspect the Document; or

(b) make a copy of, or take an extract from, the Document; or

(c) retain the Document for as long as is reasonably necessary for the purposes of the

Compliance Examination to which the Document is relevant.

2.2 If requested by the Subscriber, as soon as practicable after the Registrar or the

Registrar’s delegate retains a Document under paragraph 2.1, the Registrar or the

Registrar’s delegate must give a receipt for it to the Person who produced it. The receipt

must identify in general terms the Document retained.


3 Return of retained Documents

3.1 The Registrar or the Registrar’s delegate must as soon as reasonably practicable return

an original Document retained under paragraph 2.1 to the Subscriber, if the Registrar or

the Registrar’s delegate is satisfied that its continued retention is no longer necessary.

3.2 The Registrar or the Registrar’s delegate is not bound to return any Document where the

Document has been provided to any police authority or anyone else entitled to the

Document pursuant to any law or court order.

4 Access to retained Documents

4.1 Until an original Document retained under paragraph 2.1 is returned to its owner, the

Registrar or the Registrar’s delegate must allow a Person otherwise entitled to possession

of the Document to inspect, make a copy of, or take an extract from, the Document at a

reasonable time and place decided by the Registrar or the Registrar’s delegate.

4.2 Paragraph 4.1 does not apply if it is impracticable or it would be reasonable not to allow

the Document to be inspected or copied or an extract from the Document to be taken.

5 Costs

5.1 If the Subscriber is found to be in material breach of the Participation Rules, the

Subscriber must, if required by the Registrar, pay all reasonable fees and Costs incurred

as a direct result of the Registrar or the Registrar’s delegate carrying out the Compliance

Examination. If the Subscriber is not found to be in material breach, such fees and Costs

will not be recoverable from the Subscriber.

5.2 The Cost of all actions required to be taken by the Subscriber to remedy any breach of

these Participation Rules identified by the Registrar or the Registrar’s delegate is to be

paid by the Subscriber.


SCHEDULE 6 – INSURANCE RULES

1 Subscriber insurance

1.1 Each Subscriber must maintain professional indemnity insurance:

(a) which specifically names the Subscriber as being insured; and

(b) with an Approved Insurer; and

(c) for an insured amount of at least $1.5 million per claim (including legal Costs); and

(d) having an excess per claim of no greater than $20,000; and

(e) having an annual aggregate amount of not less than $20,000,000; and

(f) which includes coverage for Conveyancing Transactions; and

(g) the terms of which do not limit compliance with Insurance Rules 1.1(a) to (f).

1.2 Each Subscriber must maintain fidelity insurance:






(f) which provides coverage for third party claims arising from dishonest and fraudulent

acts; and

(g) which includes coverage for Conveyancing Transactions; and

(h) the terms of which do not limit compliance with Insurance Rules 1.2(a) to (g).

1.3 If a Subscriber does not comply with Insurance Rules 1.1 and 1.2, the Subscriber must

maintain professional indemnity insurance:







acts; and


(g) which includes coverage for Conveyancing Transactions; and


1.4 A Subscriber may maintain fidelity insurance held through a mutual fund by paying a levy

or contribution rather than an annual insurance premium. The insurance must otherwise

comply with Insurance Rule 1.2.

2 Identity Agent insurance

2.1 Each Identity Agent must maintain professional indemnity insurance:

(a) which specifically names the Identity Agent as being insured; and





(f) which includes coverage for verification of identity for the purposes of these


(g) the terms of which do not limit compliance with Insurance Rules 2.1(a) to (f).

2.2 Each Identity Agent must maintain fidelity insurance:







acts; and

(g) which includes coverage for verification of identity for the purposes of these



2.3 If an Identity Agent does not comply with Insurance Rules 2.1 and 2.2, the Identity Agent

must maintain professional indemnity insurance:








acts; and

(g) which includes coverage for verification of identity for the purposes of these



2.4 An Identity Agent may maintain fidelity insurance held through a mutual fund by paying a

levy or contribution rather than an annual insurance premium. The insurance must

otherwise comply with Insurance Rule 2.2.

3 Self-insuring Subscribers and Identity Agents

Despite Insurance Rules 1 and 2, the following Persons need not take out any insurance

to become or remain a Subscriber or an Identity Agent:

(a) an ADI; or

(b) the Crown in right of the Commonwealth, a State or a Territory.

4 Deemed compliance with these Insurance Rules

4.1 The following are deemed to comply with Insurance Rules 1 and 2:

(a) an Australian Legal Practitioner or a Law Practice who holds or is covered by

professional indemnity insurance and either holds fidelity insurance or contributes to,

or on whose behalf a contribution is made to, a fidelity fund operated pursuant to

legislative requirements; and

(b) a Licensed Conveyancer who holds or is covered by professional indemnity

insurance and either holds fidelity insurance or contributes to, or on whose behalf a

contribution is made to, a fidelity fund operated pursuant to legislative requirements.

4.2 A Mortgage Broker, when acting as agent of a mortgagee for the purposes of verifying the

identity of a mortgagor, is deemed to comply with Insurance Rule 2 if:

(a) pursuant to legislative requirements, either it holds or is covered by:

(i) professional indemnity insurance and fidelity insurance, or

(ii) professional indemnity insurance which provides cover for third party claims

arising from dishonest and fraudulent acts, and

(b) that insurance covers the verification of identity.


4.3 A Local Government Organisation is deemed to comply with Insurance Rule 1 if pursuant

to legislative requirements, either it holds or is covered by:

(a) professional indemnity insurance and fidelity insurance, or

(b) professional indemnity insurance which provides cover for third party claims arising

from dishonest and fraudulent acts.

5 Compliance

The Subscriber or an Identity Agent must comply with any requirements set by its insurer.

6 Proof of insurance

The Subscriber must provide evidence of insurance to the ELNO as required by the

ELNO.


SCHEDULE 7 – SUSPENSION EVENTS, TERMINATION EVENTS AND SUSPENSION AND TERMINATION PROCEDURE

1 Suspension Events

The following are Suspension Events:

(a) the Registrar knows or has reasonable grounds to suspect that the Subscriber:

(i) is in material breach of any of the Subscriber’s obligations under the

Participation Rules; or

(ii) has or may have acted fraudulently in a way which may impact on a

Conveyancing Transaction; or

(iii) has or may have acted negligently in a way which may impact on a


(iv) poses a threat to the operation, security, integrity or stability of the ELN; or

(v) has otherwise engaged in conduct contrary to the interests of other

Subscribers or the Registrar, which may impact on a Conveyancing

Transaction; or

(b) the Subscriber’s purported payment of any Land Registry Fees is unpaid or

dishonoured and the Subscriber fails to remedy the non-payment promptly; or

(c) the Subscriber fails, without reasonable excuse, to comply with a notice served

under the Compliance Examination Procedure; or

(d) the Subscriber fails, without reasonable excuse, to produce Documents within a time

specified in a written request from the Registrar; or

(e) the Subscriber fails, without reasonable excuse, to comply with a written direction of

the Registrar given to the Subscriber or to a class of Subscribers to which the

Subscriber belongs.

2 Termination Events

The following are Termination Events:

(a) the Registrar knows or has reasonable grounds to believe that the Subscriber:











Transaction; or

(b) the Subscriber is subject to an order or directions of a court, tribunal, professional

regulator or disciplinary body, which may impact on a Conveyancing Transaction; or

(c) the Subscriber is not reinstated within a reasonable time following a suspension of

the Subscriber.

3 Suspension and Termination Procedure

3.1 Show Cause Notice procedure

(a) Subject to paragraph 3.2, the Registrar may suspend or terminate, or direct an

ELNO to suspend or terminate, the Subscriber only if the Registrar first gives the

Subscriber a “Show Cause Notice”. A “Show Cause Notice” must:

(i) be in writing; and

(ii) request the Subscriber to show cause, within 15 Business Days of the date of

the Show Cause Notice, why the Subscriber should not be suspended or

terminated, as the case may be; and

(iii) set out in detail the Registrar’s reasons for issuing the request.

(b) After the expiry of the 15 Business Days from the date of the Show Cause Notice,

the Registrar, after considering any further information or steps taken by the

Subscriber, must, within a reasonable time, determine whether to suspend or

terminate, or direct an ELNO to suspend or terminate, the Subscriber.

3.2 Urgent decisions to suspend or terminate

(a) If the Registrar becomes aware that a Suspension Event or Termination Event has

or may have occurred in respect of the Subscriber and believes that it is necessary

to take urgent action to protect the operation, security, integrity or stability of the

ELN, the Registrar may immediately suspend or terminate, or direct an ELNO to

immediately suspend or terminate, the Subscriber without first providing a Show

Cause Notice under paragraph 3.1.

(b) However, the Registrar must then issue to the Subscriber a “Show Cause Notice”

within 15 Business Days. A “Show Cause Notice” must:


(i) be in writing; and

(ii) request the Subscriber to show cause, within 15 Business Days of the date of

the Show Cause Notice, why the Subscriber should be reinstated; and

(iii) specify the reasons for the suspension or termination.

(c) If the Registrar does not issue a Show Cause Notice in accordance with this

paragraph 3.2 within 15 Business Days of a suspension or termination taking effect

following a determination by the Registrar to suspend or terminate the Subscriber

under this paragraph 3.2, the Registrar must reinstate, or direct the ELNO to

reinstate, the Subscriber.

(d) After the expiry of the 15 Business Days following the date of the Show Cause

Notice under this paragraph 3.2, the Registrar, after considering any further

information or steps taken by the Subscriber must, within a reasonable time,

determine whether to reinstate the Subscriber or direct the ELNO to reinstate the

Subscriber.

3.3 Notice of suspension and termination decisions

After making a final determination under paragraph 3.1 or paragraph 3.2, the Registrar

must notify the Subscriber promptly of the determination. If the determination:

(a) is made under paragraph 3.1, the notice must specify the reasons for the

determination and, except where the Registrar directs the ELNO to suspend or

terminate, the time and date the suspension or termination is to take effect; or

(b) is made under paragraph 3.2, the notice must specify the reasons for the

determination and, except where the Registrar directs the ELNO to suspend or

terminate, the time and date the suspension or termination took effect.

3.4 Suspension or termination - reinstatement

If the Registrar suspends or terminates the Subscriber, or directs an ELNO to suspend or

terminate the Subscriber, the Registrar may reinstate, or direct an ELNO to reinstate, the

Subscriber at any time if the Registrar determines that the Subscriber’s access to the ELN

does not pose a threat to the operation, security, integrity or stability of the ELN.

3.5 Registrar’s determinations

A determination by the Registrar to suspend or terminate a Subscriber, or to direct an

ELNO to suspend or terminate a Subscriber, does not affect any other determination the

Registrar has made previously or may make subsequently.


SCHEDULE 8 – VERIFICATION OF IDENTITY STANDARD

1 Definitions

In this Verification of Identity Standard capitalised terms have the meanings set out below:

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

1959 (Cth).

Adult has the meaning given to it in the ECNL.

Application Law has the meaning given to it in the ECNL.

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

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

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

1981 (SA).

Australian Passport means a passport issued by the Australian Commonwealth

government.

Bank Manager means a Person appointed to be in charge of the head office or any

branch office of an ADI carrying on business in Australia under the Banking Act 1959

(Cth).

Category means the categories of identification Documents set out in the table in this

Verification of Identity Standard paragraph 3, as amended from time to time.

Commonwealth has the meaning given to it in the ECNL.

Community Leader means, in relation to an Aboriginal or Torres Strait Islander

community:

(a) a Person who is recognised by the members of the community to be a community

elder; or

(b) if there is an Aboriginal council that represents the community, an elected member

of the council; or

(c) a member, or a member of staff, of a Torres Strait Regional Authority established

under the Aboriginal and Torres Strait Islander Commission Act 2005 (Cth); or

(d) a member of the board, or a member of staff, of Indigenous Business Australia

established under the Aboriginal and Torres Strait Islander Commission Act 2005

(Cth); or

(e) a member of the board, or a member of staff, of an Indigenous Land Corporation

established under the Aboriginal and Torres Strait Islander Commission Act 2005

(Cth); or


(f) a member, or a member of staff, of an Aboriginal Land Council established

under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Court Officer means a judge, master, magistrate, registrar, clerk or the chief executive

officer of any court in Australia.

Doctor means a Person who is registered under any Commonwealth, State or Territory

law as a practitioner in the medical profession.



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

paragraph 4.

Identity Declarant means a Person providing an Identifier Declaration.

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

with this Verification of Identity Standard.


Land Council Officeholder means a chairperson or deputy chairperson (however

described) of an Australian land council or land and sea council established under any

Commonwealth, State or Territory law.



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

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

purposes of the Settlement Agents Act 1981 (WA).

Local Government Officeholder means a chief executive officer or deputy chief

executive officer (however described) of a Local Government Organisation.

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

established under any Commonwealth, State or Territory Law.

Nurse means a Person registered under any Commonwealth, State or Territory law as a

practitioner in the nursing and midwifery profession.


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

Photo Card is a card issued by the Commonwealth or any State or Territory showing a

photograph of the holder and enabling the holder to evidence their age and/or their identity.

Police Officer means an officer of any Commonwealth, State or Territory police service.


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

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

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

Territory.


Relative means a Person’s spouse or domestic partner or a child, grandchild, sibling,

parent or grandparent of the Person or of the Person’s spouse or domestic partner.


Western Australia.

Statutory Declaration has the meaning given to it in the ECNL.


Verification of Identity Standard means this verification of identity standard, as


2 Face-to-face regime

2.1 The verification of identity must be conducted during a face-to-face in-person interview

between the Identity Verifier and the Person Being Identified.

2.2 Where Documents containing photographs are produced by the Person Being Identified,

the Identity Verifier must be satisfied that the Person Being Identified is a reasonable

likeness (for example the shape of his or her mouth, nose, eyes and the position of his or

her cheek bones) to the Person depicted in those photographs.

3 Categories of identification Documents and evidence retention

3.1 At the face-to-face in-person interview described in paragraph 2.1, the Identity Verifier

must ensure that the Person Being Identified produces original Documents in one of the

Categories in the following table, starting with Category 1.

3.2 The Identity Verifier must be reasonably satisfied that a prior Category cannot be met

before using a subsequent Category.

3.3 The Identity Verifier must:

(a) sight the originals of all Documents from Categories 1, 2, 3, 4, 5 or 6 produced by

the Person Being Identified; and

(b) retain copies of all Documents produced by the Person Being Identified and any

Identity Declarant.


3.4 The Documents produced must be current, except for an expired Australian Passport

which has not been cancelled and was current within the preceding 2 years.

Category Minimum Document Requirements For Persons who are Australian citizens or residents:

1 Australian Passport or foreign passport plus Australian drivers licence or Photo Card plus change of name or marriage certificate if necessary

2

Australian Passport or foreign passport plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary

3

Australian drivers licence or Photo Card plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary

4

(a) Australian Passport or foreign passport plus another form of government issued photographic identity Document plus change of name or marriage certificate if necessary

(b) Australian Passport or foreign passport

plus full birth certificate plus another form of government issued identity Document plus change of name or marriage certificate if necessary

5

(a) Identifier Declaration plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary.

(b) Identifier Declaration by a Person specified in Verification of Identity

Standard paragraph 4.4(e) plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary.

Note: Refer to Verification of Identity Standard paragraph 4.

For Persons who are not Australian citizens or residents:

6

(a) Foreign passport plus another form of government issued photographic identity Document plus change of name or marriage certificate if necessary

(b) Foreign passport

plus full birth certificate plus another form of government issued identity Document plus change of name or marriage certificate if necessary.


4 The Identifier Declaration

4.1 Where the requirements of:

(a) Categories 1 to 4 cannot be met, Category 5(a) may be used; and

(b) Category 5(a) cannot be met, Category 5(b) may be used,

including the provision of an Identifier Declaration in accordance with this paragraph.

4.2 The Identity Verifier must ensure that both the Person Being Identified and the Identity

Declarant attend the same face-to-face in-person interview described in paragraph 2.1.

4.3 The Identity Verifier must verify the identity of the Identity Declarant in accordance with

this Verification of Identity Standard except that the Identity Verifier cannot utilise Category

5.

4.4 The Identity Verifier must undertake reasonable enquiries to satisfy themselves that the

Identity Declarant is:

(a) an Adult; and

(b) an Individual who has known the Person Being Identified for more than 12 months;

and

(c) not a Relative of the Person Being Identified; and

(d) not a party to the Conveyancing Transaction(s) the Person Being Identified has or is

entering into; and

(e) where Category 5(b) is used, an Australian Legal Practitioner, a Bank Manager,

Community Leader, Court Officer, Doctor, Land Council Officeholder, Licensed

Conveyancer, Local Government Officeholder, Nurse, Police Officer or Public

Servant.

4.5 The Identity Verifier must ensure that the Identity Declarant provides a Statutory

Declaration detailing the following:

(a) the Identity Declarant’s name and address; and

(b) the Identity Declarant’s occupation; and

(c) the Identity Declarant’s date of birth; and

(d) the nature of the Identity Declarant’s relationship with the Person Being Identified;

and

(e) that the Identity Declarant is not a relative of the Person Being Identified; and

(f) that the Identity Declarant is not a party to the Conveyancing Transaction(s) the

Person Being Identified has or is entering into; and


(g) the length of time that the Identity Declarant has known the Person Being Identified;

and

(h) that to the Identity Declarant’s knowledge, information and belief the Person Being

Identified is who they purport to be; and

(i) where Category 5(b) is used, that the Identity Declarant is an Australian Legal

Practitioner, a Bank Manager, Community Leader, Court Officer, Doctor, Land

Council Officeholder, Licensed Conveyancer, Local Government Officeholder,

Nurse, Police Officer or Public Servant .

5 Body Corporate

The Identity Verifier must:

(a) confirm the existence and identity of the body corporate by conducting a search of

the Records of the Australian Securities and Investments Commission or other

regulatory body with whom the body corporate is required to be registered; and

(b) take reasonable steps to establish who is authorised to sign or witness the affixing

of the seal on behalf of the body corporate; and

(c) verify the identity of the Individual or Individuals signing or witnessing the affixing

o f the seal on behalf of the body corporate in accordance with the Verification of

Identity Standard.

[Note: body corporate includes an incorporated association.]

6 Individual as attorney


(a) confirm from the [registered] power of attorney the details of the attorney and the

donor; and

(b) take reasonable steps to establish that the Conveyancing Transaction(s) is

authorised by the power of attorney; and

(c) verify the identity of the attorney in accordance with the Verification of Identity

Standard.

7 Body Corporate as attorney



donor; and

(b) take reasonable steps to establish that the Conveyancing Transaction(s) is

authorised by the power of attorney; and


(c) comply with Verification of Identity Standard paragraph 5.

[Note: body corporate includes an incorporated association.]

8 (Deleted)

9 (Deleted)

10 Further checks

The Identity Verifier must undertake further steps to verify the identity of the Person Being

Identified and/or the Identity Declarant where:

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

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

Identity Declarant is not genuine; or


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

Person Being Identified or the Identity Declarant; or

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

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



SCHEDULE 9 – IDENTITY AGENT CERTIFICATION

I, [full name of the Person undertaking the verification of identity], of [full name of Identity Agent] of

[address of the Identity Agent] being a [occupation of the Identity Agent] and having been directed

to use the Verification of Identity Standard by [Subscriber name] hereby certify that:

(a) the identification relates to [full name of the Person Being Identified or the Identity

Declarant]; and

(b) the identification was carried out on [date]; and

(c) the original identification Documents as listed below were produced to me and

copies of these Documents signed, dated and endorsed by me as true copies are

attached to this certification; and

(d) the verification of identity was conducted in accordance with the Verification of

Identity Standard[; and

(e) I witnessed [full name of the Person Being Identified] execute the completed Client

Authorisation or grant the mortgage].*

…………………………….. ..……….………………………

Date: Signature of Identity Agent List of identification Documents produced (see (c) above):

Description of identity Documents produced and endorsed

E.g. Australian Passport

*Delete where Identity Agent not requested to witness or is not legally entitled to witness the

document.

_________

1 Midland Square, Midland WA 6056Tel. +61 (0)8 9273 7341

[email protected]

LG 1

557

landgate.wa.gov.au

WA Operating RequirementsVersion 4

landgate.wa.gov.au

Commencement date – 22 July 2017

2| WA Operating Requirements – Version 4

CONTENTS 1 PRELIMINARY .................................................................................................................... 5

2 DEFINITIONS AND INTERPRETATION ............................................................................ 5

2.1 Definitions .......................................................................................................................................... 5

2.2 Interpretation .................................................................................................................................... 17

3 COMPLIANCE WITH OPERATING REQUIREMENTS .................................................... 18

4 ELNO ELIGIBILITY CRITERIA ......................................................................................... 18

4.1 ABN .................................................................................................................................................. 18

4.2 Status ............................................................................................................................................... 18

4.3 Character ......................................................................................................................................... 19

4.4 Financial Resources ........................................................................................................................ 19

4.5 Technical Resources ....................................................................................................................... 19 4.6 Organisational Resources ................................................................................................................ 19

4.7 Insurance ......................................................................................................................................... 20

5 OPERATION OF ELN ....................................................................................................... 20

5.1 Encourage Widespread Industry Use .............................................................................................. 20

5.2 National System and Minimum Document Capability ...................................................................... 21

5.3 General Obligations ......................................................................................................................... 21

6 INITIAL TESTING ............................................................................................................. 22

7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY .......................... 23

7.1 Information Security Management System ...................................................................................... 23 7.2 Access to ELN ................................................................................................................................. 23

7.3 Security of ELN ................................................................................................................................ 24

7.4 Data ................................................................................................................................................. 24

7.5 Protection of Land Information ......................................................................................................... 25

7.6 Digital Certificate Regime ................................................................................................................ 25

7.7 Verifying Digital Signing ................................................................................................................... 25

7.8 Verifying No Alteration ..................................................................................................................... 25

7.9 Notification of Jeopardised Conveyancing Transactions ................................................................. 26 7.10 Obligations in relation to Notification of Compromised Security Items ............................................ 26

8 SECURITY AND INTEGRITY OF TITLES REGISTER .................................................... 26

9 RISK MANAGEMENT ....................................................................................................... 26

9.1 Mitigate Risk .................................................................................................................................... 26

9.2 No Increased Risk of Fraud or Error ................................................................................................ 27

10 MINIMUM SYSTEM REQUIREMENTS ............................................................................ 27

10.1 Functionality ..................................................................................................................................... 27

10.2 (Deleted) .......................................................................................................................................... 28

10.3 Data Standard .................................................................................................................................. 28


10.4 Apply Registrar’s Business Rules .................................................................................................... 28

10.5 Services to Enable Assessment of Integrity ..................................................................................... 28

10.6 Ability to Unsign Digitally Signed Documents .................................................................................. 28

10.7 Document Templates ....................................................................................................................... 28

10.8 Presentation Following Completion of Financial Settlement ............................................................ 28

10.9 Presentation Following Duty Payment or Commitment ................................................................... 28 10.10 Land Registry Fees .......................................................................................................................... 29

11 MINIMUM PERFORMANCE LEVELS .............................................................................. 29

11.1 Performance Levels ......................................................................................................................... 29

12 BUSINESS CONTINUITY AND DISASTER RECOVERY MANAGEMENT ..................... 29

12.1 Business Continuity and Disaster Recovery Management Program ............................................... 29

12.2 Review ............................................................................................................................................. 29

13 CHANGE MANAGEMENT ................................................................................................ 30

13.1 Change Management Framework ................................................................................................... 30

13.2 No Changes other than in accordance with Change Management Framework .............................. 30

14 SUBSCRIBERS ................................................................................................................ 30

14.1 Subscriber Registration .................................................................................................................... 30 14.2 Unreasonable Barriers or Refusal to Accept Subscriber ................................................................. 31

14.3 Maintain Subscriber and User Register ........................................................................................... 31

14.4 Evidence of Subscriber Insurance and Verification of Identity ......................................................... 31

14.5 Participation Agreement and Participation Rules ............................................................................. 31

14.6 Training ............................................................................................................................................ 32

14.7 Monitoring of Subscribers and Suspension or Termination ............................................................. 32

14.8 ELNO must Restrict, Suspend or Terminate Subscriber if Directed by Registrar ............................ 33

14.9 Consequences of Restriction, Suspension or Termination .............................................................. 33

15 COMPLIANCE MONITORING AND REPORTING ........................................................... 33

15.1 Monitor Compliance ......................................................................................................................... 33

15.2 Demonstrate Compliance ................................................................................................................ 33

15.3 Inability to give a No Change Certification ....................................................................................... 34

15.4 When to Demonstrate Compliance .................................................................................................. 34

15.5 Demonstrate Compliance at any Time ............................................................................................. 34 15.6 Provision of Further Information ....................................................................................................... 35

15.7 Notice of Non-Compliance and Remedy .......................................................................................... 35

15.8 Remediation of Non Compliance ..................................................................................................... 35

15.9 Remediation of Serious Non Compliance ........................................................................................ 35

15.10 ELNO may provide certified copies of original documents .............................................................. 36

16 INDEPENDENT CERTIFICATION .................................................................................... 36

16.1 Approval of Independent Expert ...................................................................................................... 36 16.2 Assistance ........................................................................................................................................ 36

16.3 Essential and Desirable Recommendations .................................................................................... 36

16.4 Inclusion of Essential Recommendations in Independent Expert’s Certification ............................. 37


17 COMPLIANCE EXAMINATION ........................................................................................ 37

18 REPORTS ......................................................................................................................... 37

18.1 Monthly Report ................................................................................................................................. 37

18.2 Annual Report to the Registrar ........................................................................................................ 37

19 DATA AND INFORMATION OBLIGATIONS ................................................................... 38

19.1 Retention .......................................................................................................................................... 38

19.2 Generation and Retention of Transaction Audit Records ................................................................ 38

19.3 Use ................................................................................................................................................... 38

19.4 Provide Information to Subscribers .................................................................................................. 39

19.5 Intellectual Property Rights .............................................................................................................. 40

20 REGISTRAR’S POWERS ................................................................................................. 40

20.1 Suspension or Revocation of ELNO’s Approval .............................................................................. 40

21 BUSINESS AND SERVICES TRANSITION ..................................................................... 41

21.1 Transition Plan ................................................................................................................................. 41

21.2 Minimum Requirements of a Transition Plan ................................................................................... 41

21.3 (Deleted) .......................................................................................................................................... 42

21.4 Implementation of Transition Plan ................................................................................................... 42

22 AMENDMENT OF OPERATING REQUIREMENTS ......................................................... 42

23 ADDITIONAL OPERATING REQUIREMENTS ................................................................ 42

SCHEDULE 1 – INSURANCE ........................................................................................................ 43

SCHEDULE 2 – PERFORMANCE LEVELS .................................................................................. 44

SCHEDULE 3 – REPORTING REQUIREMENTS .......................................................................... 46

SCHEDULE 4 – ADDITIONAL OPERATING REQUIREMENTS ................................................... 54

SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE ................................................... 55

SCHEDULE 6 – AMENDMENT TO OPERATING REQUIREMENTS PROCEDURE .................... 57

SCHEDULE 7 – SUBSCRIBER IDENTITY VERIFICATION STANDARD ..................................... 58


OPERATING REQUIREMENTS

1 PRELIMINARY

These Operating Requirements constitute the Operating Requirements determined by

the Registrar pursuant to section 22 of the ECNL.

2 DEFINITIONS AND INTERPRETATION

2.1 Definitions

2.1.1 A term used in these Operating Requirements and also in the ECNL has the same

meaning in these Operating Requirements as it has in that legislation (unless the term is

defined in these Operating Requirements).

2.1.2 In these Operating Requirements capitalised terms have the meanings set out below:

ABN means an Australian Business Number and has the same meaning given to it

in the A New Tax System (Australian Business Number) Act 1999 (Cth).

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

details, required for a Person to access the ELN.

Additional Operating Requirements means the additional Operating Requirements

specific to the Registrar’s Jurisdiction, if any, set out in Schedule 4, as amended from time

to time.

Amendment to Operating Requirements Procedure means the procedure set out in


Annual Report to the Registrar means the report referred to in Operating Requirement

18.2.

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

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

Australia is the Electronic Conveyancing Act 2014 (WA).

Approval means, in respect of an ELNO, the ELNO's approval by the Registrar pursuant

to section 15 of the ECNL to provide and operate an ELN.

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

APRA means the Australian Prudential Regulatory Authority.

Australian Business Register means the register established under the A New Tax

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


Business Continuity and Disaster Recovery Management Program means the

program referred to in Operating Requirement 12.1.

Business Continuity and Disaster Recovery Plan (BCDRP) means a documented plan

forming part of the Business Continuity and Disaster Recovery Management Program

setting out how an ELNO will respond to an Incident to restore continuity and enable

recovery.

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

Business Plan means a Document setting out a detailed description of the ELNO's

business as it relates to the operation of the ELN, including its:

(a) products and/or services and delivery schedule; and

(b) financial, marketing and operational objectives and how these objectives will be

achieved.

Business Rules means the documented statements of a Land Registry’s business

requirements and practices that define or constrain:

(a) the preparation of Registry Instruments, Information Reports and other electronic

Documents or information provided to a Land Registry; and

(b) the presentation for Lodgment or providing of Registry Instruments, Information

Reports and other electronic Documents or information with or to a Land Registry,

provided by the Registrar to the ELNO from time to time.

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

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

Registry Instrument or other Document in the Titles Register.

Certificate Profile means the specification of the fields to be included in a Digital Certificate

and the contents of each.

Certification Authority means a Gatekeeper Accredited Service Provider that issues

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

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

Certificates it issues.

Change Management Framework (CMF) means a comprehensive, documented

framework of policies, practices and procedures to ensure that the changes referred to in

Operating Requirement 13.1 are made in a planned and managed way and that, for each

instance of change, a specific change management plan can be prepared to, without

limitation,:


(a) communicate and consult on proposed changes with parties affected by the

change; and

(b) enable parties affected by the change to fully assess the proposed change,

including the reasons for the proposed change, impacts, costs, benefits and risks of

the proposed change; and

(c) have regard to the feedback received from parties affected by the change in

determining the tasks to be undertaken and their implementation should the change

be implemented.

Certificate Policy means a named set of rules that indicates the applicability of a

Digital Certificate to a particular community and/or class of applications with common

security requirements, approved or reviewed by the Gatekeeper Competent Authority.

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

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

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

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

have not provided a Client Authorisation.

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

Commissioner has the meaning given to it in the Application Law.

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

Compliance Examination Procedure means the obligations and procedures set out in


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

proper authority.


Core Hours means the time from 6:00am to 10:00pm on each Business Day.

Corporations Act means the Corporations Act 2001 (Cth).

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

advisers.

Data Standard means the data standard specified by the Registrar.

Desirable Recommendations means those written recommendations of an

Independent Expert which are not Essential Recommendations and which an ELNO may

choose to implement.

Digital Certificate means an electronic certificate Digitally Signed by the

Certification Authority which:


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

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

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

and

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

contents of each.

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

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

Discharge/Release of Mortgage means a Document that discharges or releases a

Mortgage.


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

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

Instrument or other electronic Document payable to the Duty Authority.

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

subject of the Conveyancing Transaction is situated.



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

Electronic Workspace Document means a defined data set and if necessary,

associated text, assembled from the information collected in an Electronic Workspace.

Without limitation, Lodgment Instructions, Registry Instruments and Information Reports

are Electronic Workspace Documents.

Eligibility Criteria means the rules set out in Participation Rule 4, as amended from time

to time.

ELN has the meaning given to it in the ECNL.


ELNO System means the ELNO’s systems for facilitating the preparation of Electronic

Workspace Documents relevant to a Conveyancing Transaction, the financial

settlement of a Conveyancing Transaction (if any) and the presentation for Lodgment of

electronic Documents at a Land Registry, and includes the ELN.

Essential Recommendations means those written recommendations of an

Independent Expert the implementation of which are expressed to be essential by the


Independent Expert and which an ELNO is required to implement under these Operating

Requirements.

Financial Year has the meaning given to it in the ECNL.

Fit for Purpose means the ELNO has:

(a) adopted a Standard that is appropriate for the operation of an ELN in accordance

with the Operating Requirements; and

(b) developed frameworks that are in accordance with the adopted Standards and

which achieve the underlying objectives of those Standards; and

(c) implemented all of the necessary processes and procedures that align with the

adopted Standard.

Gatekeeper means the Commonwealth government strategy to develop PKI to facilitate

government online service delivery and e-procurement.

Gatekeeper Accreditation Certificate means the electronic Digital Certificate issued by

the Gatekeeper Competent Authority to Gatekeeper Accredited Service Providers.

Gatekeeper Accredited Service Provider means a service provider accredited by the

Gatekeeper Competent Authority.

Gatekeeper Competent Authority means the entity which approves an application for

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

Government Chief Information Officer, Australian Government Information Management

Office, Department of Finance and Deregulation.

GST means the tax imposed under A New Tax System (Goods and Services Tax) Act

1999 (Cth).

Incident means any event which causes, or may cause, the providing or operation of the

ELN by the ELNO to cease, be interrupted, or which causes or may cause a reduction in

the service or the quality of the services provided by the ELNO.

Independent Certification means a written certification by an Independent Expert:

(a) signed by the Independent Expert; and

(b) on the letterhead of the Independent Expert; and

(c) given for the benefit of the Registrar; and

(d) annexing a report of the Independent Expert into the matters the subject of the

Independent Certification,

certifying that the ELNO has complied with the requirement of these Operating

Requirements to which the certification relates.


Independent Expert means a Person who is appropriately qualified, competent and

insured and is:

(a) not, or is not related to or associated with, the ELNO, a director, officer or employee

of the ELNO; or

(b) a contractor or agent of the ELNO who is able to demonstrate to the Registrar’s

satisfaction that any work to be undertaken as an Independent Expert is

independent from any existing work being undertaken for the ELNO.


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

Information Report means ancillary information about a Conveyancing Transaction

delivered to a Land Registry or Duty Authority, or other government taxing, valuing or

rating authority.

Information Security Management System (ISMS) means the System referred to in

Operating Requirement 7.1.

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

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

and when they become due and payable; or

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

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

moratorium involving any of them; or

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

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

appointment; or

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

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

or

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

with the Person under the law of any Jurisdiction.

Insurance Rules means the rules set out in Schedule 6 of the Participation Rules, as


Intellectual Property Rights includes any:

(a) copyright; and

(b) design, patent, trademark, semiconductor, or circuit layout (whether registered,

unregistered or applied for); and


(c) trade, business, company or domain name; and

(d) know-how, inventions, processes, confidential information (whether in writing or

recorded in any form); and

any other proprietary, licence or personal rights arising from intellectual activity in the

business, industrial, scientific or artistic fields.

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

Jurisdiction has the meaning given to it in the ECNL.

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

decrypt.

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

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

Subscriber.

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

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

Land Information means information provided by the Land Registry or information used

to complete electronic Documents to be Lodged at the Land Registry.


Jurisdiction’s Titles Register. In Western Australia, the Land Registry is the Western

Australian Land Information Authority established by the Land Information Authority Act

2006 section 5.

Land Registry Fees means Information Fees and Lodgment Fees.

Land Registry System means the Land Registry’s system for accepting and processing

electronic Documents presented for Lodgment using an ELN.


Land Title Reference Verification means a service to verify that a certificate of title or

folio of the Titles Register (as applicable) the subject of a Conveyancing Transaction is

valid and can be dealt with electronically through the ELN.

Lodge has the meaning given to it in the ECNL.

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

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

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

Lodgment Fees means fees due to the Registrar for Registry Instruments or other

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

Participating Subscribers.


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

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

electronic Document for Lodgment.

Lodgment Verification means a service to verify that an electronic Registry Instrument

or other electronic Document will be accepted for Lodgment by the Registrar or Land

Registry if the Registry Instrument or other electronic Document data remains unchanged.

Monthly Report means the report referred to in Operating Requirement 18.1.

Mortgage means a Document by which a Person charges an estate or interest in land as

security.

Notifications means:

(a) all alerts, notifications and information received by the ELNO from the Registrar, the

Land Registry, Subscriber or any other Person; and

(b) all alerts, notifications and information sent by the ELNO to the Registrar, the Land

Registry, Subscriber or any other Person,

in connection with a Conveyancing Transaction.

No Change Certification means:

(a) where an ELNO was required to produce to the Registrar a Specified Document to

demonstrate compliance with an Operating Requirement, a written certification

made by the ELNO for the benefit of the Registrar and the Land Registry that there

has been no change to the Specified Document since the date it was produced to

the Registrar and no occurrence or anything that would render the Specified

Document incorrect, incomplete, false or misleading; or

(b) where an ELNO was required to give to the Registrar a Self-Certification to

demonstrate compliance with an Operating Requirement, a written certification

made by the ELNO for the benefit of the Registrar and the Land Registry that there

has been no occurrence since the date the Self-Certification was made that would

render the Self-Certification incorrect, incomplete, false or misleading; or

(c) where an ELNO was required to obtain and provide to the Registrar an

Independent Certification to demonstrate compliance with an Operating

Requirement, a written certification made by the ELNO for the benefit of the

Registrar and the Land Registry that there has been no occurrence since the date

the Independent Certification was made that would render the Independent

Certification incorrect, incomplete, false or misleading.

Non-Core Hours means any time outside of Core Hours.


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

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

indirectly because it is a Representative of a Party.

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

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

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

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

does not include a Representative.

Performance Levels means the performance levels the ELNO is required to meet as set

out in Schedule 2.



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

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

distribute and revoke Digital Certificates.

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

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

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

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

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

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

confidentiality, integrity, authenticity and non-repudiation.

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



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

Land Registry.


Replacement Cost Value means an amount calculated annually as the actual cost to

replace the total assets of an ELNO, disclosed in the ELNO’s audited financial statements

and reports for the last Financial Year, at their pre-loss condition.

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


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

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

Registrar for a Lodgment Case.

Risk Assessment means a Document identifying, analysing and evaluating risks to an

ELNO in its operation of the ELN.

Risk Management Framework (RMF) means the framework referred to in Operating

Requirement 9.1 and includes, without limitation, a Risk Assessment and a Risk

Treatment Plan.

Risk Treatment Plan means a Document setting out the process by which an ELNO will

mitigate the risks identified in the Risk Assessment.

Scheduled Maintenance means those scheduled periods of time during Non-Core Hours

during which an ELNO can perform maintenance to the ELNO’s System.

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

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

time.

Self-Certification means a written certification made by the ELNO for the benefit of the

Registrar and the Land Registry certifying that the ELNO has complied with the Operating

Requirement to which the certification relates and including a description of what the

ELNO has done to enable it to give the Self-Certification.

Settlement Transaction means a Conveyancing Transaction that involves a financial

settlement.

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

Instruments and other electronic Documents on behalf of the Subscriber.

Specified Document means a Document set out in Schedule 3 under the column

heading “Document to be Produced”.

Standard means:

(a) a current standard, (or in the absence of a standard, a handbook) published by

Standards Australia Ltd, its successor or any national body having a similar

function; or

(b) where there is no current relevant standard published by Standards Australia Ltd, a

current standard published by the International Organisation for Standardisation

(ISO).


Western Australia.


Subscriber has the meaning given to it in the ECNL.

Subscriber Registration Process means a documented process for creating and

managing the registration of Subscribers, including, without limitation, processes relating

to:

(a) a Subscriber’s registration; and

(b) a Subscriber’s ongoing eligibility to be a Subscriber; and

(c) any restriction, suspension, termination and resignation of a Subscriber.

Subscriber Identity Verification Standard means the standard for the verification of

identity of potential Subscribers set out in Schedule 7, as amended from time to time.

Suspension Event means where the ELNO knows or has reasonable grounds to suspect

that the Subscriber:

(a) is in material breach of any of the Subscriber’s obligations under the Participation

Rules; or

(b) has or may have acted fraudulently in a way which may impact on a Conveyancing

Transaction; or

(c) has or may have acted negligently in a way which may impact on a Conveyancing

Transaction; or

(d) poses a threat to the operation, security, integrity or stability of the ELN; or

(e) has otherwise engaged in conduct contrary to the interests of other Subscribers or

the Registrar, which may impact on a Conveyancing Transaction.

Termination Event means where:

(a) the ELNO knows or has reasonable grounds to believe that the Subscriber:










Transaction; or


(b) the Subscriber is subject to an order or directions of a court, tribunal, professional

regulator or disciplinary body, which may impact on a Conveyancing Transaction.


Test Plan means a plan acceptable to the Land Registry for the testing of the ELN.

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

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

Conveyancing Transaction.


Transaction Audit Records means a comprehensive Record of key transactions

occurring in or associated with an Electronic Workspace or the ELN including, without

limitation:

(a) changes made in an Electronic Workspace and which Subscriber made which

changes to an Electronic Workspace; and

(b) administrative action taken by or for a Subscriber in relation to its use of the

ELN; and

(c) other actions of Subscribers in an Electronic Workspace; and

(d) changes in the status of an Electronic Workspace, Registry Instruments or

other electronic Documents within the Electronic Workspace; and

(e) events relating to the security and integrity of the ELN.

Transfer means a Document that transfers an estate or interest in land.

Transition Plan (TP) means the Plan referred to in Operating Requirement 21.1.

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

behalf of the Subscriber.

Valid Digital Certificate means a Digital Certificate issued by a Certification Authority that

has not been revoked or suspended by the Certification Authority and remains operational.

Withdrawal of Caveat means a Document under the Land Titles Legislation which

removes a Caveat.

Workspace Data means data in an Electronic Workspace.


2.2 Interpretation

In these Operating Requirements, unless a contrary intention is evident:

2.2.1 A reference to these Operating Requirements is a reference to these Operating

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

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

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

issued under that legislation or provision; and

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

legislation or provision.

2.2.3 A word importing:

(a) the singular includes the plural; and

(b) the plural includes the singular; and

(c) a gender includes every other gender.

2.2.4 If any act pursuant to these Operating Requirements would otherwise be required to be

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

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

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

following the day on which the obligation is incurred.

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

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

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

2.2.7 A reference to a requirement or schedule is a reference to a requirement of, or a schedule

to, these Operating Requirements.

2.2.8 A reference to an Operating Requirement includes a reference to all of its sub-

requirements.

2.2.9 A reference to dollars is to Australian dollars.

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

words are not limited by reference to that class.

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

Operating Requirements.

2.2.12 The word “or” is not exclusive.


2.2.13 Where there is any inconsistency between the description of an ELNO’s obligations in an

Operating Requirement and in a schedule to these Operating Requirements, the

Operating Requirement will prevail to the extent of the inconsistency.

3 COMPLIANCE WITH OPERATING REQUIREMENTS

The ELNO must:

(a) as a qualification for approval, be able to comply with these Operating

Requirements at the time the ELNO applies for Approval; and

(b) comply with these Operating Requirements and any conditions on the Approval

whilst an Approval is held by the ELNO; and

(c) continue to comply with Operating Requirements 19 and 21 after the ELNO ceases

to hold an Approval,

unless the Registrar or the Land Registry, in his or her o r i t s absolute discretion,

waives compliance by the ELNO with any Operating Requirement in accordance with

section 27 of the ECNL.

4 ELNO ELIGIBILITY CRITERIA

4.1 ABN

The ELNO must have an ABN and be registered for GST.

4.2 Status

The ELNO must:

(a) be a corporation registered under the Corporations Act; and

(b) if it is a foreign body corporate, be registered under Division 2 of Part 5B.2 of the

Corporations Act and obtain any necessary approvals under the Foreign

Acquisitions and Takeovers Act 1975 (Cth); and

(c) ensure that the constituting Documents of the ELNO empower the ELNO to

assume the obligations set out in these Operating Requirements and to do all

things that it can reasonably contemplate will be required by these Operating

Requirements.


4.3 Character

4.3.1 The ELNO must be of good corporate character and reputation and, without limitation,

must:

(a) ensure that the ELNO and the ELNO’s principals, directors or officers are not and

have not been subject to any of the matters listed in 4.3.1(b)(i) to (vii) below; and

(b) take reasonable steps to ensure that the ELNO’s employees, agents or contractors

are not and have not been subject to any of the matters listed in (i) to (vii) below:


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


activities; or


or

(iv) any fine, banning, suspension or other disciplinary measure for financial or

professional misconduct; or

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

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

(vi) any refusal of membership or revocation of membership of any financial

markets, legal or accounting professional organisation or body on the grounds

of financial or professional misconduct, fraud or dishonesty; or

(vii) any refusal of an application to provide an electronic Lodgment service.

4.3.2 The ELNO must maintain contemporary best practice governance arrangements that are

regularly reviewed.

4.4 Financial Resources

The ELNO must demonstrate sufficient financial resources to meet its obligations under

these Operating Requirements.

4.5 Technical Resources

The ELNO must demonstrate sufficient technical resources to meet its obligations

under these Operating Requirements.

4.6 Organisational Resources

The ELNO must demonstrate sufficient organisational resources to meet its obligations

under these Operating Requirements.


4.7 Insurance

4.7.1 The ELNO must obtain the insurance policies required under these Operating

Requirements on terms satisfactory to the Registrar in accordance with this Operating

Requirement.

4.7.2 The ELNO must maintain a policy of:

(a) professional indemnity insurance in an annual aggregate amount of not less than

that set out in Item 1 in Schedule 1; and

(b) fidelity insurance in an annual aggregate amount of not less than that set out in

Item 2 in Schedule 1; and

(c) public and product liability insurance in an annual aggregate amount of not less

than that set out in Item 3 in Schedule 1; and

(d) asset insurance in an amount of not less than that set out in Item 4 in Schedule

1.

4.7.3 The ELNO must obtain its insurance policies from an Approved Insurer.

4.7.4 The ELNO must obtain policies of professional indemnity and fidelity insurance that cover

the acts and omissions of its principals, officers and employees.

4.7.5 The ELNO must ensure that any contractors to the ELNO maintain relevant and

appropriate policies of insurance from an Approved Insurer to adequately cover the

services provided by the contractor.

4.7.6 The ELNO must, as soon as practicable, inform the Registrar in writing of the occurrence

of an event that may give rise to a claim under a policy of insurance required to be

maintained under these Operating Requirements and must ensure that the Registrar is

kept fully informed of subsequent action and developments concerning the claim.

5 OPERATION OF ELN

5.1 Encourage Widespread Industry Use

The ELNO must encourage widespread industry use of the ELN. As a minimum, the

Business Plan must set out the ELNO’s:

(a) specific plans to encourage the use of the ELN nationally and in the Jurisdiction;

and

(b) proposed service delivery model, including the proposed or actual customer

base and anticipated market penetration; and


(c) timings for the commencement of operations and the anticipated level of service,

including matters such as ease of connection and access for different classes of

users.

5.2 National System and Minimum Document Capability

Recognising that the implementation of Operating Requirements 5.2(a) and (b) may be

staged in accordance with the Business Plan, the ELNO must ensure that:

(a) the ELN is available to each Land Registry in Australia and to Subscribers in all

States and Territories in Australia; and

(b) the ELN enables, as a minimum, the Lodgment of those of the following electronic

Registry Instruments and other electronic Documents which are capable of

Lodgment under the Land Titles Legislation of the Jurisdiction in which the ELN is

available:

(i) Transfer; and

(ii) Mortgage; and

(iii) Discharge/Release of Mortgage; and

(iv) Caveat; and

(v) Withdrawal of Caveat; and

(vi) Priority/Settlement Notice; and

(vii) Extension of Priority Notice; and

(viii) Withdrawal of Priority/Settlement Notice; and

(ix) associated Duty Authority notices; and

(x) administrative notices required to manage certificates of title.

5.3 General Obligations

The ELNO must:

(a) have adequate arrangements for operating the ELN in a proper, competent,

sustainable and efficient manner; and

(b) exercise due skill, care and diligence in operating the ELN and in meeting its

obligations under these Operating Requirements; and

(c) minimise any disruption of or interference to any systems connected to the ELN for

the purpose of conducting Conveyancing Transactions; and

(d) obtain and maintain all necessary licences and regulatory approvals required by

any appropriate authority to provide and operate the ELNO System; and


(e) determine its fees according to a publicly available, equitable and transparent

pricing policy which is kept current by the ELNO and includes the manner in and

frequency of which prices will be reviewed by the ELNO; and

(f) ensure that all of the ELNO’s officers, principals, employees, agents and

contractors are:

(i) adequately trained to operate or access the ELN to the extent relevant in the

manner authorised; and

(ii) aware of the ELNO’s obligations under these Operating Requirements to the

extent relevant; and

(g) comply with all:

(i) applicable laws (including any applicable Privacy Laws and laws relating to

Document and information collection, storage and retention); and

(ii) government policies as notified to the ELNO in writing; and

(h) maintain confidentiality of all information provided to the ELNO in which the

provider of the information would reasonably expect confidentiality to be

maintained; and

(i) comply with any reasonable direction given by the Registrar for the purpose of

these Operating Requirements; and

(j) notify the Registrar of all events relating to the ELNO or the ELN which have the

potential to affect the integrity of the Titles Register; and

(k) give such assistance to the Registrar, Land Registry or Commissioner, or a

Person authorised by the Registrar, Land Registry or Commissioner, as the

Registrar, Land Registry or Commissioner or the authorised Person reasonably

requests in relation to the performance of the Registrar’s functions and powers

under the ECNL including, without limitation, reasonable access to the ELN and to

the records of the ELNO; and

(l) the ELNO must establish, implement, review and keep current a Business Plan.

6 INITIAL TESTING

The ELNO must not commence operating the ELN without first undertaking testing of the

ELN in accordance with the Test Plan and otherwise to the satisfaction of the Land

Registry.


7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRITY

7.1 Information Security Management System

The ELNO must:

(a) establish, implement, operate, monitor, review, maintain and keep current a

documented Information Security Management System that is Fit for Purpose in

relation to the ELNO’s operations to ensure the security of the ELN; and

(b) ensure that its Information Security Management System:

(i) takes into account the obligations of the ELNO in these Operating

Requirements; including, without limitation, the obligations in Operating

Requirements 19.1 and 19.2; and

(ii) includes a comprehensive Subscriber security policy with which Subscribers

and Users must comply, the purpose of which is to assist Subscribers and

Users to understand their obligations in relation to the security of the ELN and

which addresses, without limitation,:

A. the technology required to enable Subscribers to access the ELN;

B. the specification of virus protection software required to be installed on

a Subscriber’s computers;

C. protection of Security Items; and

D. training and monitoring of Users in relation to a Subscriber’s security

obligations; and

(c) have its Information Security Management System regularly reviewed by an

Independent Expert and implement, as a minimum, any Essential

Recommendations of that Independent Expert; and

(d) before implementing any material change to its Information Security Management

System, obtain an Independent Certification relating to the change that the

Information Security Management System will, after the making of the change,

continue to be suitable, adequate and effective and otherwise Fit for Purpose, and

provide it to the Registrar.

7.2 Access to ELN

7.2.1 Subject to Operating Requirement 7.2.2, the ELNO must ensure that only Subscribers

registered in accordance with these Operating Requirements and the Participation Rules

or Persons properly authorised by Subscribers are able to access and use the ELN.


7.2.2 The ELNO must ensure that only Persons authorised by the ELNO have access to the

ELN for administrative purposes.

7.3 Security of ELN

The ELNO must take reasonable steps to:

(a) ensure that data supplied to any system connected to the ELN is free from viruses,

corruption and any other condition that may compromise any of those systems or

any data stored by, or passing into or out of, the Land Registry’s System or any

other systems connected to the ELN for the purposes of carrying out Conveyancing

Transactions; and

(b) prevent, trap, detect and remove any viruses, corruption and any other condition

from its systems and data that may damage the Land Registry System, damage

any systems connected to the ELN for the purposes of carrying out Conveyancing

Transactions, or damage any data stored by the Land Registry; and

(c) prevent unauthorised system use, intrusion and service denial and detect and

remove unauthorised system additions or modifications; and

(d) monitor, and take appropriate action after receiving security alerts from the Land

Registry; and

(e) do all things reasonably necessary to reduce systemic risk in the ELN and promote

the overall stability of each system connected to the ELN for the purposes of

carrying out Conveyancing Transactions; and

(f) ensure that it does not do or omit to do anything that is likely to have an adverse

effect on the operation, security, integrity or stability of the Land Registry System.

7.4 Data

The ELNO must ensure that the ELN:

(a) accurately presents and uses data received from a Land Registry or any other

source; and

(b) does not change data received from a Land Registry other than in accordance with

an approval granted under Operating Requirement 19.3(b); and

(c) where the ELN checks, collates or processes data from a Land Registry, accurately

checks, collates or processes that data.


7.5 Protection of Land Information

The ELNO must ensure that any computer infrastructure forming part of the ELNO

System and in which Land Information is entered, stored or processed is located

within the Commonwealth of Australia.

7.6 Digital Certificate Regime

7.6.1 The ELNO must ensure that, where a Digital Certificate is used to Digitally Sign a

Document, the Certification Authority is independent.

7.6.2 Without limiting Operating Requirement 7.6.1 above, the ELNO must ensure that Digital

Certificates used in the ELN:

(a) accord with the Gatekeeper PKI framework; and

(b) are supplied by a Gatekeeper Accredited Service Provider; and

(c) are issued under a Certificate Policy which:

(i) identifies the Subscriber and its ABN; and

(ii) binds the Subscriber’s Signer as Key Holder to the Subscriber including,

without limitation, by naming the Subscriber’s Signer in the Certificate Profile.

7.7 Verifying Digital Signing

The ELNO must ensure that the ELN has an effective means of:

(a) verifying that any Document required to be Digitally Signed has been executed

using a Valid Digital Certificate of the Subscriber authorised to execute the

Document; and

(b) verifying that at the time of Digitally Signing the Subscriber’s registration as a

Subscriber has not expired or been restricted, suspended or terminated; and

(c) verifying that when a Document is Digitally Signed, the Signer:

(i) has the signing rights being exercised; and

(ii) has not had their use of the ELN suspended or terminated or their signing

rights suspended or terminated; and

(d) providing the Registrar with data to verify the matters in Operating Requirements

7.7(a), (b) and (c) and the identity of the Signer.

7.8 Verifying No Alteration

The ELNO must ensure that the ELN has an effective means of enabling the Registrar,

Land Registry and Commissioner to verify that each Digitally Signed electronic


Document presented to the Registrar has not been altered in any way since it was

executed.

7.9 Notification of Jeopardised Conveyancing Transactions

The ELNO must immediately notify the Registrar and those of its Subscribers involved in

any Conveyancing Transaction which it has reason to believe has been Jeopardised.

7.10 Obligations in relation to Notification of Compromised Security Items

Where a Subscriber notifies the ELNO that:

(a) any of the Security Items of its Users have been or are likely to have been

Compromised; or

(b) the Subscriber is aware or suspects that any of its Private Keys have been used to

Digitally Sign any Registry Instruments or other electronic Documents without its

authorisation or the authorisation of any Client on whose behalf the Registry

Instruments or other electronic Documents are purported to be Digitally Signed,

the ELNO must:

(c) prevent the presentation for Lodgment with the Registrar or Land Registry of those

Registry Instruments or other electronic Documents which the Subscriber advises

the ELNO may be affected by the Compromise of the Security Items or Digitally

Signed without the authority referred to in Operating Requirement 7.10(b); or

(d) if it is not possible to prevent the presentation for Lodgment, immediately notify the

Registrar.

8 SECURITY AND INTEGRITY OF TITLES REGISTER

The ELNO must ensure that it does not do anything that is likely to diminish the

overall security and integrity of the Titles Register or public confidence in the Titles

Register.

9 RISK MANAGEMENT

9.1 Mitigate Risk

The ELNO must:

(a) establish, implement, operate, monitor, review, maintain and keep current a

documented Risk Management Framework that is Fit for Purpose to enable the

identification, mitigation and management of risks in its operation of the ELN; and


(b) have its Risk Management Framework regularly reviewed by an Independent

Expert and implement, as a minimum, any Essential Recommendations of that

Independent Expert.

9.2 No Increased Risk of Fraud or Error

Without limiting any other obligation under these Operating Requirements, the ELNO

must use reasonable endeavours to ensure that the use of the ELN for the presentation

for Lodgment of Conveyancing Transactions with the Registrar does not result in a

greater risk of fraud or error in those Conveyancing Transactions compared to the risk of

fraud or error for comparable Conveyancing Transactions Lodged in a paper medium.

10 MINIMUM SYSTEM REQUIREMENTS

The ELNO must ensure that the ELN meets the minimum requirements determined by

the Registrar and Land Registry, which must include as a minimum the requirements set

out in this Operating Requirement.

10.1 Functionality

The ELNO must ensure that the ELN:

(a) provides sufficient functionality to enable:

(i) Subscribers to comply with the ECNL, Land Titles Legislation and the


(ii) the Registrar, Land Registry and Commissioner to comply with legislative

obligations relevant to the service provided by the ELNO and policy

requirements notified to the ELNO relevant to the service provided by the

ELNO; and

(b) is designed and provisioned:

(i) to be reliable, scalable and flexible; and

(ii) to use software that is fully supported by the provider of that software; and

(iii) so that it is architecturally sound with code design compliant with relevant

industry standards; and

(iv) so that it is compliant with any relevant industry standards relating to usability

and accessibility.


10.2 (Deleted)

10.3 Data Standard

The ELN must use the Data Standard to present:

(a) electronic Documents, including all component data items, for Lodgment; and

(b) all system messages exchanged with a Land Registry.

10.4 Apply Registrar’s Business Rules

The ELN must apply the Business Rules and must have an orderly means of

implementing and testing the Business Rules.

10.5 Services to Enable Assessment of Integrity

The ELNO must make available to its Subscribers services which assist Subscribers to

assess each Conveyancing Transaction’s integrity including, but not limited to, Land Title

Reference Verification, Registry Information Supply, Lodgment Verification, Title Activity

Check and a facility to enable the determination of the applicable Lodgment Fees for each

electronic Registry Instrument or other electronic Document in a Conveyancing

Transaction.

10.6 Ability to Unsign Digitally Signed Documents

The ELNO must ensure that the ELN provides the functionality for an electronic Document

Digitally Signed by a Subscriber to be unsigned by the Subscriber or its Signer up until the

time the Electronic Workspace for the Conveyancing Transaction is locked in the ELN.

10.7 Document Templates

The ELNO must ensure that the correct document template supplied and determined by

the Registrar is used by Subscribers.

10.8 Presentation Following Completion of Financial Settlement

The ELNO must ensure that no Registry Instrument or other electronic Document forming

part of a Settlement Transaction is presented to the Registrar for Lodgment unless the

financial settlement is irrevocable.

10.9 Presentation Following Duty Payment or Commitment

The ELNO must ensure that no electronic Registry Instrument or other electronic

Document is presented to the Registrar for Lodgment unless the electronic Registry

Instrument or other electronic Document has been assessed for Duty and the Duty


Authority is satisfied that, where applicable, the Duty has been paid or an irrevocable

commitment to pay has been made to the Duty Authority.

10.10 Land Registry Fees

The ELNO must:

(a) ensure that no electronic Registry Instrument or other electronic Document is

presented to the Registrar for Lodgment unless the Lodgment Fees have been

collected by the ELNO or an irrevocable commitment to pay has been made to the

ELNO; and

(b) in the manner agreed with the Land Registry, pay to the Land Registry all

Information Fees and remit to the Land Registry all Lodgment Fees collected; and

(c) provide all information required by the Land Registry for the identification and

reconciliation of all Land Registry Fees.

11 MINIMUM PERFORMANCE LEVELS

11.1 Performance Levels

The ELNO must:

(a) ensure that the ELNO System meets, as a minimum, the Performance Levels; and

(b) monitor its performance against the Performance Levels and maintain records of

that monitoring.

12 BUSINESS CONTINUITY AND DISASTER RECOVERY MANAGEMENT

12.1 Business Continuity and Disaster Recovery Management Program

The ELNO must establish, implement, operate, monitor, review, maintain, test and keep

current a documented, detailed and comprehensive Business Continuity and Disaster

Recovery Management Program that is Fit for Purpose to ensure that in the event of an

Incident the ELNO can continue to provide and operate the ELN, or so that disruption to

the provision of or operation of the ELN will be minimised.

12.2 Review

The ELNO must have its Business Continuity and Disaster Recovery Management

Program regularly reviewed by an Independent Expert and implement, as a minimum, any

Essential Recommendations of that Independent Expert.


13 CHANGE MANAGEMENT

13.1 Change Management Framework

The ELNO must establish, implement, use, monitor, review, maintain and keep current a

documented, detailed and comprehensive Change Management Framework to manage

the making of any changes:

(a) relevant to the ELNO’s obligations under these Operating Requirements or a

Subscriber’s obligations under the Participation Rules in relation to the Subscriber’s

use of the ELN; or

(b) to the operation of the ELNO System,

in a planned and managed or systematic fashion.

13.2 No Changes other than in accordance with Change Management

Framework

The ELNO must not make any changes other than in accordance with the Change

Management Framework.

14 SUBSCRIBERS

14.1 Subscriber Registration

The ELNO must establish, implement, review and keep current a Subscriber Registration

Process. The ELNO must only register a Subscriber:

(a) if the applicant to become a Subscriber meets the Eligibility Criteria except where

the Registrar has waived compliance with any Eligibility Criteria in accordance with

section 27 of the ECNL; and

(b) if the ELNO has verified:

(i) the identity of the applicant, or the Person(s) representing the applicant, to

become a Subscriber in accordance with the Subscriber Identity Verification

Standard; and

(ii) the authority of the applicant, or the Person(s) representing the applicant, to

sign the Participation Agreement; and

(c) if the applicant to become a Subscriber has entered into a Participation Agreement

with the ELNO which includes an obligation on the Subscriber to comply with the



(d) if the ELNO has established that the Person(s) signing the Participation Agreement

are one and the same as the Person(s) who have had their identity, and authority to

act, verified; and

(e) who complies with the laws of the Jurisdiction in which the Subscriber intends

conducting Conveyancing Transactions.

14.2 Unreasonable Barriers or Refusal to Accept Subscriber

The ELNO must not:

(a) impose any unreasonable barriers to applying to become a Subscriber or to making

use of the ELN; or

(b) unreasonably refuse to accept any applicant who is capable of meeting the

Registrar’s eligibility criteria for Subscribers set out in the Participation Rules.

14.3 Maintain Subscriber and User Register

The ELNO must retain a register of all Persons registered as Subscribers (including a

copy of each Participation Agreement) and Users. The register must include Subscribers

whose registration has expired or been restricted, suspended or terminated (and details of

when their registration expired or was restricted, suspended or terminated).

14.4 Evidence of Subscriber Insurance and Verification of Identity

The ELNO must obtain and retain:

(a) evidence to confirm that each Subscriber meets the Insurance Rules except where

the Registrar has waived compliance with any Insurance Rule in accordance with

section 27 of the ECNL; and

(b) any material supporting verification of the:

(i) identity of the Subscriber or the Person(s) representing the Subscriber who

signs the Participation Agreement; and

(ii) authority of the Person(s) representing the Subscriber to sign the Participation

Agreement for the Subscriber.

14.5 Participation Agreement and Participation Rules

The ELNO must ensure that its Participation Agreement with each Subscriber does not

contain any express or implied term that could qualify, derogate from or otherwise

prejudicially affect any Subscriber obligation set out in the Participation Rules.


14.6 Training

The ELNO must make adequate training resources and information available to

Subscribers and Users in relation to their use of the ELN with the intention that

Subscribers and Users may readily learn and understand how to use the ELN.

14.7 Monitoring of Subscribers and Suspension or Termination

The ELNO must:

(a) have in place appropriate arrangements to monitor the compliance of Subscribers

with the Participation Rules except where the Registrar has waived compliance with

any Participation Rule in accordance with section 27 of the ECNL (including,

without limitation, Subscribers' continuing satisfaction of the eligibility criteria for

Subscribers set out in the Participation Rules); and

(b) if the monitoring indicates a breach of the Participation Rules, actively assess and

consider whether a Subscriber should be restricted, suspended or terminated or if a

Subscriber’s User’s access to or use of the ELN should be restricted, suspended or

terminated in light of the then current circumstances; and

(c) take appropriate action in relation to the breach of the Participation Rules by a

Subscriber including, where a Suspension Event or Termination Event occurs, the

restriction, suspension or termination of the Subscriber's ability to act as a

Subscriber in the Jurisdiction or a Subscriber’s User’s access to or use of the ELN;

and

(d) immediately notify the Registrar in writing if the ELNO knows or has reasonable

grounds to suspect that a Subscriber has committed, is committing or is about to

commit a Suspension Event or Termination Event or a breach of any of the

obligations imposed on the Subscriber in respect of the ELN. The notification must

include:

(i) the name of the Subscriber; and

(ii) the details of the material breach or impending material breach; and

(iii) the ELNO’s reason for that belief; and

(iv) the nature of any action the ELNO has taken or intends to take; and

(e) where it restricts, suspends, terminates (including when a Subscriber resigns) or

reinstates a Subscriber's ability to act as a Subscriber in the Jurisdiction or a

Subscriber’s User’s access to or use of the ELN, promptly notify the Registrar of

that restriction, suspension, termination or reinstatement.


14.8 ELNO must Restrict, Suspend or Terminate Subscriber if Directed by Registrar

The ELNO must immediately restrict, suspend or terminate (as the case may be) the right

of a Subscriber to participate as a Subscriber in a Jurisdiction if the ELNO receives a

direction from the Registrar or Land Registry to do so.

14.9 Consequences of Restriction, Suspension or Termination

If a Subscriber’s registration or access to or use of the ELN (or that of its User) expires or

is restricted, suspended or terminated by the ELNO, the ELNO:

(a) must ensure that the Subscriber (including any of its Users), from the time of the

expiration, restriction, suspension or termination, cannot:

(i) in the case of restriction, access the ELN other than in accordance with the

restriction; and

(ii) in the case of expiration, suspension or termination, access the ELN; and

(b) may, if the ELNO is satisfied that no Party would be disadvantaged and that the

Conveyancing Transaction should proceed, allow electronic presentation of any

Electronic Workspace Documents that were Digitally Signed by the Subscriber

before the expiration, restriction, suspension or termination (assuming that the

Subscriber does not need to do anything more in order for electronic presentation

to occur); and

(c) may allow another Subscriber authorised by the relevant Party to take over the role

of the Subscriber whose registration or access to or use of the ELN has expired or

been restricted, suspended or terminated in any Conveyancing Transaction in

which the Subscriber is a Participating Subscriber.

15 COMPLIANCE MONITORING AND REPORTING

15.1 Monitor Compliance

The ELNO must continually monitor its compliance with these Operating Requirements.

15.2 Demonstrate Compliance

Without limiting Operating Requirement 15.5, the ELNO must demonstrate to the

Registrar its compliance with an Operating Requirement by:

(a) producing to the Registrar a Specified Document; or

(b) providing to the Registrar a Self-Certification; or


(c) obtaining and providing to the Registrar an Independent Certification; or

(d) providing to the Registrar a No Change Certification; or

(e) publishing a Monthly Report,

as specified for an Operating Requirement in Schedule 3.

15.3 Inability to give a No Change Certification

If an ELNO is unable to give a No Change Certification to demonstrate to the Registrar its

compliance with an Operating Requirement due to a change, occurrence or anything that

would render a Specified Document, Self-Certification or Independent Certification

incorrect, incomplete, false or misleading, the ELNO must instead:

(a) produce to the Registrar the Specified Document; or

(b) provide to the Registrar the Self-Certification; or

(c) obtain and provide to the Registrar the Independent Certification,

that would otherwise have been required to demonstrate compliance with the Operating

Requirement under a preceding category in Schedule 3.

15.4 When to Demonstrate Compliance

Without limiting Operating Requirement 15.5, the ELNO must demonstrate to the

Registrar its compliance with the Operating Requirements set out in:

(a) Category One in Schedule 3, at the time the ELNO applies for Approval or a

renewal of Approval; and

(b) Category Two in Schedule 3:

(i) at least eight weeks prior to the date notified by the ELNO to the Registrar as

the date on which the ELNO intends commencing operation of the ELN; and

(ii) at the time the ELNO applies for renewal of Approval; and

(c) Category Three in Schedule 3, annually as part of the ELNO’s Annual Report to the

Registrar; and

(d) Category Four in Schedule 3, monthly in a Monthly Report.

15.5 Demonstrate Compliance at any Time

At any time on the written request of the Registrar, the ELNO must produce to the

Registrar within 10 Business Days of that request, documented substantiation of its

compliance with these Operating Requirements to the satisfaction of the Registrar.


15.6 Provision of Further Information

The ELNO must, at any time on the written request of the Registrar where the Registrar

considers that the information contained in a Specified Document, a Self-Certification, an

Independent Certification, a No Change Certification, a Monthly Report or an Annual

Report warrants further investigation:

(a) give to the Registrar further information; or

(b) submit a further certification addressing the matter raised by the Registrar (the

further certification being either a Self-Certification, No Change Certification or

Independent Certification),

to the satisfaction of the Registrar by a reasonable date and time specified by the

Registrar.

15.7 Notice of Non-Compliance and Remedy

The ELNO must:

(a) give written notice to the Land Registry, as soon as practicable, if it becomes aware

that it has breached or may in the future be no longer able to comply with these

Operating Requirements; and

(b) remedy any non-compliance with these Operating Requirements within 10

Business Days (or such other longer time determined in the absolute discretion of

the Land Registry having regard to the nature of the breach) from when it becomes

aware that it has breached these Operating Requirements; and

(c) take such action as is necessary in order to avoid a breach in circumstances where

the ELNO becomes aware that it may in the future be no longer able to comply with

these Operating Requirements.

15.8 Remediation of Non Compliance

Subject to Operating Requirement 15.9, the ELNO must prepare and provide to the Land

Registry a remediation action plan for any requirement under these Operating

Requirements for which it fails to demonstrate compliance as required by Operating

Requirement 15.4(d) on two consecutive occasions and implement the action plan

forthwith.

15.9 Remediation of Serious Non Compliance

Where the Land Registry gives written notice to the ELNO that the Land Registry

considers that non-compliance by the ELNO with any requirement under these Operating

Requirements is of a serious nature, the ELNO must prepare and provide to the Land


Registry, within the time specified in the notice, a remedial action plan and implement that

action plan.

15.10 ELNO may provide certified copies of original documents

Where an ELNO is required to provide a document to the Registrar to evidence

compliance with an Operating Requirement and is unable to provide the original of the

document, the ELNO may provide a copy of the original document certified as a true copy

by a principal, director or officer of the ELNO.

16 INDEPENDENT CERTIFICATION

16.1 Approval of Independent Expert

The ELNO must ensure that:

(a) before an Independent Certification is given by an Independent Expert, the ELNO

obtains the written approval of the Land Registry to the proposed Independent

Expert; and

(b) sufficient information regarding the qualifications and competence and insurance

coverage of the proposed Independent Expert is provided by the ELNO to the

Land Registry at least three months prior to the time at which the Independent

Certification must be given to enable the Land Registry to determine the

Independent Expert’s suitability or otherwise to provide the Independent

Certification.

16.2 Assistance

The ELNO must give all reasonable assistance required by the Independent Expert

referred to in Operating Requirement 16.1 to prepare the certification and must at the

request of the Independent Expert direct third parties to make available all information the

Independent Expert requires in order to prepare the certification.

16.3 Essential and Desirable Recommendations

The ELNO must ensure that:

(a) where it is required under these Operating Requirements to have something

regularly reviewed by an Independent Expert; and

(b) the Independent Expert makes recommendations in relation to that thing,

the recommendations are expressed in writing as either Essential Recommendations or

Desirable Recommendations.


16.4 Inclusion of Essential Recommendations in Independent Expert’s Certification

The ELNO must ensure that where it is required to obtain and provide an Independent

Certification to demonstrate compliance with an Operating Requirement any Essential

Recommendations are disclosed in the relevant Independent Expert’s Certification.

17 COMPLIANCE EXAMINATION

The ELNO must, where the Registrar conducts under the ECNL a compliance

examination in relation to the ELNO, comply with section 33 of the ECNL and the

Compliance Examination Procedure.

18 REPORTS

18.1 Monthly Report

The ELNO must, within 10 Business Days of the expiration of each month in which the

ELNO operates the ELN, make publicly available and provide to the Registrar a report

relating to the ELNO’s compliance with the Operating Requirements set out in Category

Four in Schedule 3.

18.2 Annual Report to the Registrar

18.2.1 Subject to Operating Requirement 18.2.2, an ELNO must, within 3 months after the end of

the Financial Year, give the Registrar an annual report on the extent to which the ELNO

complied with its obligations as an ELNO under these Operating Requirements.

18.2.2 Where an ELNO commences operation of the ELN on or within 3 months before the end

of a Financial Year, an ELNO must, within 3 months after the end of the next Financial

Year, give the Registrar an annual report on the extent to which the ELNO complied with

its obligations as an ELNO under these Operating Requirements.

18.2.3 The ELNO must ensure that the Annual Report to the Registrar includes:

(a) where Operating Requirement 18.2.1 applies, a description of the activities that

ELNO has undertaken in the Financial Year; and

(b) where Operating Requirement 18.2.2 applies, a description of the activities that

ELNO has undertaken in the Financial Year and the period from which the ELNO

commenced operation of the ELN; and


(c) the Specified Documents, Self-Certifications, No Change Certifications and

Independent Certifications required to demonstrate the ELNO’s compliance with the

Operating Requirements set out in Category Three in Schedule 3; and

(d) a description of what action the ELNO has taken or intends to take and the

timeframe within which the action is intended to be taken to implement the Essential

Recommendations of the Independent Expert; and

(e) an analysis of the extent to which the ELNO considers its activities have not

resulted in full compliance with all its obligations under these Operating

Requirements.

19 DATA AND INFORMATION OBLIGATIONS

19.1 Retention

The ELNO must indefinitely retain and retrieve and provide to the Registrar, Land Registry

or Commissioner within 10Business Days of the Registrar’s, Land Registry’s or

Commissioner’s request to provide:

(a) all Workspace Data; and

(b) all Electronic Workspace Documents, whether:

(i) Digitally Signed or not; or

(ii) Lodged or not with the Registrar or the Land Registry; and

(c) all Notifications; and

(d) for each Subscriber, each Document and Record received or created by the ELNO

in connection with the Subscriber’s or User’s registration in the ELN.

19.2 Generation and Retention of Transaction Audit Records

The ELNO must generate and indefinitely retain Transaction Audit Records and retrieve

and provide Transaction Audit Records or any part of Transaction Audit Records to the

Registrar, Land Registry or Commissioner within 10 Business Days of the Registrar’s,

Land Registry’s or Commissioner’s request to provide Transaction Audit Records.

19.3 Use

The ELNO must not, without the prior approval of the Land Registry, which may not be

unreasonably withheld:

(a) store any Land Information (or any part of any Land Information) on the ELN or on

any other database, except for the purpose of facilitating the presentation for


Lodgment of a Registry Instrument or other electronic Document with the Land

Registry or complying with Operating Requirement 19.1 and 19.2; or

(b) modify or alter any Land Information for a Conveyancing Transaction; or

(c) do anything that allows or causes another Person to modify or alter any part of

Land Information provided by the Land Registry; or

(d) use, reproduce or disclose (or do anything that allows or causes another Person to

do any of these things) any Land Information for a Conveyancing Transaction, other

than that required or requested by Subscribers to the Electronic Workspace in

which the Land Information appears; or

(e) create data or other products which are the same as or substantially similar to the

Land Information or include the Land Information, or reverse assemble, reverse

compile, reverse engineer or recreate or rework the Land Information in any way or

otherwise re-use the Land Information for the benefit of the ELNO, Subscribers or

third parties.

19.4 Provide Information to Subscribers

The ELNO must provide to Subscribers the following alerts and notices issued by a Land

Registry or Registrar to the ELNO:

(a) those relating to an amendment of the ECNL, Participation Rules or these

Operating Requirements; and

(b) those given in response to an emergency situation as referred to in the ECNL or

relating to the security, integrity or stability of the Titles Register; and

(c) notice of any direction given by the Registrar to the ELNO relating to a Subscriber or

Subscribers; and

(d) those relating to the provision and operation of the ELN by the ELNO where the alerts

or notices are marked by the Land Registry or the Registrar as “For Communication to

Subscribers”; and

(e) other alerts and notices as reasonably required by the Registrar and where the alerts

or notices are marked by the Land Registry or the Registrar as “For Communication to

Subscribers”.


19.5 Intellectual Property Rights

The ELNO:

(a) acknowledges that Intellectual Property Rights in all data and information contained

in the Titles Register or supplied by the Registrar is owned either by the Registrar,

Land Registry or the State or Territory; and

(b) acknowledges that nothing in these Operating Requirements creates in or transfers

to an ELNO any Intellectual Property Rights in the Land Information; and

(c) must not do or omit to do anything which might invalidate or be inconsistent with the

Intellectual Property Rights of the Registrar, Land Registry or the State or Territory;

and

(d) must, to the extent permitted by law, promptly notify the Land Registry if the

ELNO knows or has reasonable grounds to suspect that there has been an

infringement of the Intellectual Property Rights of the Registrar, Land Registry or

the State or Territory and, where possible, take any action in relation to the ELN

to prevent the infringement from reoccurring; and

(e) must, at the expense of the Land Registry, take all steps the Land Registry

reasonably requires to assist the Land Registry in maintaining the validity and

enforceability of the Intellectual Property Rights of the Registrar, Land Registry or

the State or Territory.

20 LAND REGISTRY’SPOWERS

20.1 Suspension or Revocation of ELNO’s Approval

The Land Registry may

(a) suspend (for a period determined by the Land Registry) or revoke an ELNO’s

Approval:

(i) if the ELNO is in material breach of these Operating Requirements; or

(ii) if any representation or warranty made by the ELNO relating to the operation

of the ELN, compliance with these Operating Requirements or otherwise

made to the Registrar or Land Registry is proved to be false, misleading,

deceptive, incomplete or inaccurate in any material respect; or

(iii) if an Insolvency Event occurs in respect of the ELNO; or

(iv) if any director, secretary or officer of the ELNO involved in the operation of

the ELN is convicted of a criminal offence or is disqualified under the


Corporations Act from managing a corporation and the ELNO fails to remove

that Person from his or her office immediately after the conviction is made,

delivered or recorded; or

(v) if the Registrar or Land Registry considers that there is an ongoing threat to

the integrity of the Titles Register that requires the suspension or revocation

of the ELNO’s Approval; or

(vi) if the ELNO ceases or threatens to cease operating the ELN or a substantial

part of the ELN; or

(vii) if an ELNO fails, without reasonable excuse, to comply with a notice served

under the Compliance Examination Procedure; and

(b) revoke an ELNO’s Approval:

(i) if the ELN is not operating, without reasonable excuse, within 24 months of

the grant of the ELNO’s Approval; or

(ii) if the ELNO’s Approval is not reinstated within a reasonable time following a

suspension of the Approval.

21 BUSINESS AND SERVICES TRANSITION

21.1 Transition Plan

The ELNO must establish, operate, monitor, review, maintain and keep current a

documented, detailed and comprehensive Transition Plan relating to the ELNO’s

cessation of the providing of and operation of the ELN in place at all times to ensure that

the ELN can continue to operate at all times with minimal disruption to the Registrar or the

Land Registry or Subscribers in the circumstances where the Transition Plan is

implemented.

21.2 Minimum Requirements of a Transition Plan

The ELNO must ensure that its Transition Plan provides, as a minimum, for:

(a) notice to the Land Registry and all Subscribers of the timing and reason for

disengagement; and

(b) the orderly winding down of the ELNO System, facilities and services; and

(c) the manner of finalising any incomplete Conveyancing Transactions; and

(d) the transfer of all retained records to the Land Registry or at the direction of the

Land Registry; and


(e) the transfer of all licences and intellectual property to a third party or the Land

Registry.

21.3 (Deleted)

21.4 Implementation of Transition Plan

The ELNO must implement the Transition Plan:

(a) 12 months prior to cessation, if the ELNO intends to cease or ceases to operate:

(i) the ELN for any reason; or

(ii) any service or services provided by the ELNO which is, in the Land Registry’s

opinion, material to the operation of the ELN; or

(b) immediately, if the ELNO’s Approval is revoked by the Land Registry; or

(c) from the date the Land Registry gives written notice to the ELNO that the Land

Registry does not intend renewing the ELNO’s Approval, if the Approval is not

renewed by the Land Registry.

22 AMENDMENT OF OPERATING REQUIREMENTS

The ELNO must comply with any amendment made to these Operating Requirements by

the Registrar pursuant to the Amendment to Operating Requirements Procedure.

23 ADDITIONAL OPERATING REQUIREMENTS

The ELNO must comply with the Additional Operating Requirements, if any.


SCHEDULE 1 – INSURANCE

1 Professional Indemnity Insurance $20,000,000

2 Fidelity Insurance $20,000,000

3 Public and Product Liability Insurance $10,000,000

4 Asset Insurance Replacement Cost Value


SCHEDULE 2 – PERFORMANCE LEVELS

Performance Level Performance Target

Operational Performance Measures

Service Availability The ELNO System must be available to its Subscribers (including those services dependent on functionality needing external communications and systems except when those external communications or systems are not available) for 24 hours per day, 7 days per week and 52 weeks per year, exclusive of Scheduled Maintenance assessed monthly. Scheduled Maintenance must occur during Non-Core Hours. “Non-Core Hours” means any time outside of Core Hours. “Core Hours” means the time from 6:00am to 10:00pm Australian Eastern Standard Time or Australian Eastern Daylight Time as applicable on each Business Day. “Business Day” means a day that is not:

(a) a Saturday or Sunday; or

(b) a public holiday, special holiday or bank holiday in a State or Territory.

Service Reliability The ELNO System must be available for: (a) not less than 99.8% during Core Hours; and

(b) not less than 99% during Non-Core Hours,

assessed monthly.

System Performance Measures

System Responsiveness

The time taken by the ELNO System to respond to a user-initiated request must be less than 3 seconds on average over a month, exclusive of external communications and systems, under all reasonably expected load conditions.

System Resilience The ELNO service must not be disrupted for the same root cause (excluding service disruptions caused by external communications and systems) more than twice in a six month period.

Management Performance Measures

Incident Resolution In a disaster recovery situation where the ELNO’s Business Continuity and Disaster Recovery Plan is invoked, the ELNO System must be restored to Service Availability within 4 hours. Where a service disruption occurs in a non-disaster recovery situation, the ELNO System must be restored to Service Availability within 40 minutes.

Problem Identification

The root cause of each service disruption must be identified within 3 Business Days.


SCHEDULE 3 – REPORTING REQUIREMENTS

Category One – when applying for Approval and on renewal of Approval

Operating Require-ment

Subject Document to be Produced Self-Certification to be Provided

Independent Certification to be Obtained and Supplied

4.1 ABN and GST ABN and GST registration

4.2(a) or (b)

Corporate registration ASIC registration certificate plus company search not more than 30 days old

4.2(c) Properly empowered Constitution and other constituting documents

4.3.1 Good corporate character and reputation

Good character and reputation

4.3.1(a) Principals, directors and officers of good character

Principals, directors and officers of good character

4.3.1(b) Employees, agents and contractors of good character

Employees, agents and contractors of good character

4.3.2 Governance Corporate governance model Best practice governance

4.4 Financial resources Audited financial statements and reports for the last two Financial Years

Sufficient financial resources

4.5 Technical resources Technical capability document Sufficient technical resources

4.6 Organisational resources Organisational structure Sufficient organisational resources

5.1 Widespread use Business Plan

5.2 National system and minimum Documents

Business Plan

5.3(d) Licences and regulatory approvals Licences and regulatory approvals specified, obtained and current





5.3(l) Business Plan Business Plan

10.1(a) Functionality Application to become an ELNO

Category Two – before commencing operation of the ELN and on renewal of Approval




4.1 ABN and GST No Change Certification or updated Document as required under Category One

4.2(a) or (b) Corporate registration No Change Certification or updated Document as required under Category One

4.2(c) Properly empowered No Change Certification or updated Document as required under Category One


No Change Certification or updated Self- Certification as required under Category One


No Change Certification or updated Self-Certification as required under Category One



4.3.2 Governance No Change Certification or updated Document and Self-Certification as required under Category One





4.4 Financial resources No Change Certification or updated Document and Self-Certification as required under Category One

4.5 Technical resources No Change Certification or updated Document and Self-Certification as required under Category One

4.6 Organisational resources No Change Certification or updated Document and Self-Certification as required under Category One

4.7.1, 4.7.3 & 4.7.4

Insurance conditions Insurance policies

4.7.2 & 4.7.5

Insurer and insurance levels Compliance with requirements in Operating Requirements 4.7.2 & 4.7.5

5.1 Widespread use No Change Certification or updated Document as required under Category One


No Change Certification or updated Document as required under Category One

5.3(d) Licences and regulatory approvals


5.3(e) Pricing policy Pricing Policy

5.3(l) Business Plan No Change Certification or updated Document as required under Category One

6 Initial testing Test Plan

7 System security and integrity Information Security Management System (ISMS)

ISMS Fit for Purpose





9.1 Mitigate risk Risk Management Framework (RMF) RMF Fit for Purpose

10.1(b) Minimum system requirements: Adaptability

Compliance with requirements in Operating Requirement 10.1(b)

12 Business Continuity & Disaster Recovery

Business Continuity and Disaster Recovery Program (BCDRP)

BCDRP Fit for Purpose

13 Change Management Change Management Framework (CMF)

14.1 Subscriber registration Subscriber Registration Process

14.4 Subscriber insurance Documented process to ensure current Subscriber insurance obtained and retained

14.5 Participation agreement Participation Agreement

21 Transition Transition Plan

Category Three – as part of the Annual Report to the Registrar Operating Require-ment

Subject Document to be Produced Self-Certification to Be Provided Independent Certification to be Obtained and Supplied

4.1 ABN and GST No Change Certification or updated Document as required under Category One

4.2(a) or (b) Corporate registration No Change Certification or updated Document as required under Category One

4.2(c) Properly empowered No Change Certification or updated Document as required under Category One










4.3.2 Governance No Change Certification or updated Document and Self-Certification as required under Category One

4.4 Financial resources Audited financial statements and reports for the last Financial Year

Sufficient financial resources

4.5 Technical resources Sufficient technical resources

4.6 Organisational resources No Change Certification or updated Document and Self-Certification as required under Category One

4.7.1, 4.7.3 & 4.7.4

Insurance conditions Insurance policies No Change Certification or updated Document as required under Category Two

4.7.2 & 4.7.5

Insurer and insurance levels Compliance with requirements in Operating Requirements 4.7.2 & 4.7.5

5.1 Widespread use Details of industry usage No Change Certification or updated Document as required under Category One





Details of the geographic extent of the system and the Conveyancing Transactions in scope

No Change Certification or updated Document as required under Category One

5.3(d) Licences and regulatory approvals Licences and regulatory approvals specified, obtained and current

5.3(e) Pricing policy No Change Certification or updated Document as required under Category Two

5.3(f) Training and awareness Training and awareness programs up to date and adequate

5.3(g) Law and policy compliance Compliance with laws and policies

5.3(l) Business Plan No Change Certification or updated Document as required under Category One

7 System security and integrity ISMS: No Change Certification or updated Document as required under Category Two

ISMS Fit for Purpose

8 Public confidence in Titles Register Nothing done to diminish public confidence in Titles Register

9.1 Mitigate risk RMF: No Change Certification or updated Document as required under Category Two

RMF Fit for Purpose

9.2 Risk of fraud or error Use of ELN does not result in greater fraud or error

10.1(b) Minimum system requirements: Adaptability

No Change Certification Where a No Change Certification cannot be given, an Independent Certification as required under Category Two




11 Minimum performance levels Performance to measures in Schedule 2

12 Business Continuity & Disaster Recovery

BCDRP: No Change Certification or updated Document as required under Category Two

BCDRMP Fit for Purpose

13 Change Management No Change Certification or updated Document as required under Category Two

14.1 Subscriber registration Subscriber Registration Process compliant with Operating Requirement 14.1

14.4 Subscriber insurance No Change Certification or updated Document as required under Category Two

14.5 Participation agreement No Change Certification or updated Document as required under Category Two

15.1 General compliance Compliance with all requirements

15.7 Non-compliance remediation Consolidated and categorised compliance failure notifications together with remediation action plans and their outcomes

18.2 Annual report Annual Report to the Registrar

19.3 Information use Compliance with restrictions

21.1 Transition No Change Certification or updated Document as required under Category 2


Category Four – as the Monthly Report


Subject Documents to be Published

5 Operation of an ELN Categorised complaints received, justified, resolved and outstanding.

11 Minimum performance levels Compilation of performance against targets set out in Schedule 2.

14.2 Refusal to accept Subscriber Complaints received, justified, resolved and outstanding.

14.6 Subscriber training Complaints received, justified, resolved and outstanding.


SCHEDULE 4 – ADDITIONAL OPERATING REQUIREMENTS

None.


SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE

1 Power to request information and Documents

1.1 The Registrar or the Registrar’s delegate must provide notice to the ELNO.

1.2 The notice must state:

(a) the time within which the information must be furnished and/or the Document must

be produced (which must not be less than 10 Business Days after the giving of the

notice); and

(b) how information is to be furnished and/or the Document is to be produced.

1.3 A notice under paragraph 1.2 may be given in writing or by any electronic means that the

Registrar or the Registrar’s delegate considers appropriate.

1.4 An ELNO to whom a notice is given under paragraph 1.2 must comply with the

requirements set out in the notice within the period specified in the notice.

1.5 (Deleted)

2 Inspection and retention of Documents

2.1 If an original Document is produced in accordance with a notice given under paragraph

1.2, the Registrar or the Registrar’s delegate may do one or more of the following:

(a) inspect the Document; or

(b) make a copy of, or take an extract from, the Document; or

(c) retain the Document for as long as is reasonably necessary for the purposes of the

Compliance Examination to which the Document is relevant.

2.2 If requested by the ELNO, as soon as practicable after the Registrar or the Registrar’s

delegate retains a Document under paragraph 2.1 of this Schedule, the Registrar or the

Registrar’s delegate must give a receipt for it to the Person who produced it. The

receipt must identify in general terms the Document retained.

3 Return of retained Documents

3.1 The Registrar or the Registrar’s delegate must as soon as reasonably practicable return

an original Document retained under paragraph 2.1 to the ELNO if the Registrar or the

Registrar’s delegate is satisfied that its continued retention is no longer necessary.

3.2 The Registrar or the Registrar’s delegate is not bound to return any Document where

the Document has been provided to any police authority or anyone else entitled to the

Document pursuant to any law or court order.


4 Access to retained Documents

4.1 Until an original Document retained under paragraph 2.1 is returned to its owner, the

Registrar or the Registrar’s delegate must allow a Person otherwise entitled to possession

of the Document to inspect, make a copy of, or take an extract from, the Document at a

reasonable time and place decided by the Registrar or the Registrar’s delegate.

4.2 Paragraph 4.1 does not apply if it is impracticable or it would be reasonable not to allow

the Document to be inspected or copied or an extract from the Document to be taken.

5 Costs

5.1 If the ELNO is found to be in material breach of the Operating Requirements, the ELNO

must, if required by the Registrar, pay all reasonable fees and Costs incurred as a direct

result of the Registrar or the Registrar’s delegate carrying out the Compliance

Examination. If the ELNO is not found to be in material breach, such fees and Costs will

not be recoverable from the ELNO.

5.2 The Cost of all actions required to be taken by the ELNO to remedy any breach of these

Operating Requirements identified by the Registrar or the Registrar’s delegate is to be

paid by the ELNO.


SCHEDULE 6 – AMENDMENT TO OPERATING REQUIREMENTS PROCEDURE

1 Amendments with prior consultation

1.1 Any amendment to these Operating Requirements must be the subject of good faith

consultation by the Registrar with the ELNO before the amendment comes into effect.

1.2 Each amendment must be notified to the ELNO at least 20 Business Days before the

amendment comes into effect. The notification must contain the date the amendment

comes into effect.

2 Amendments without prior consultation

2.1 The Registrar may determine that an amendment to these Operating Requirements need

not be the subject of prior consultation or notification in accordance with paragraph 1

before the amendment comes into effect, if the Registrar determines in good faith that:

(a) such a course is required by law; or

(b) an emergency situation, as referred to in the ECNL, exists.

2.2 Notwithstanding paragraph 2.1, each amendment must be notified to the ELNO as soon

as reasonably practicable before the amendment comes into effect. The notification must

contain the date the amendment comes into effect.


SCHEDULE 7 – SUBSCRIBER IDENTITY VERIFICATION STANDARD

1 Definitions

In this Subscriber Identity Verification Standard, capitalised terms have the meanings set

out below:

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

Australia.

APRA means the Australian Prudential Regulation Authority.

Australian Passport means a passport issued by the Australian Commonwealth

government.

Category means the categories of identification Documents set out in the table in this

Subscriber Identity Verification Standard paragraph 4, as amended from time to time.


Identity Agent means a Person who is an agent of an ELNO and who:

(a) the ELNO reasonably believes is reputable, competent and insured in compliance

with the insurance requirements set out in paragraph 9 of this Subscriber Identity

Verification Standard; and

(b) is authorised by the ELNO to conduct verification of identity on behalf of the ELNO

in accordance with this Subscriber Identity Verification Standard.

Identity Agent Certification means a certification in substantial compliance with the

certification set out in paragraph 9 of this Subscriber Identity Verification Standard, as


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

Operating Requirement 14.1 and this Subscriber Identity Verification Standard.

Photo Card is a card issued by the Commonwealth or any State or Territory showing

a photograph of the holder and enabling the holder to evidence their age and/or their

identity.

Potential Subscriber means a Person who has applied to be a Subscriber.

2 Who must be identified

The identity of the following Persons must be verified by an ELNO in accordance with

this Subscriber Identity Verification Standard:


(a) where a Potential Subscriber is an individual, that individual;

(b) without limiting paragraph 5, where the Potential Subscriber is a partnership, the

Person or Persons signing the Participation Agreement on behalf of the

partnership;

(c) without limiting paragraph 6, where the Potential Subscriber is a body corporate,

the Person or Persons signing or witnessing the affixing of the seal on behalf of the

body corporate;

(d) without limiting paragraphs 7 and 8, where the Potential Subscriber appoints an

attorney to sign the Participation Agreement, the attorney.

3 Face-to-face regime

3.1 The verification of identity must be conducted during a face-to-face in-person interview

between the ELNO or the Identity Agent and the Person Being Identified.

3.2 Where Documents containing photographs are produced by the Person Being Identified,

the ELNO or the Identity Agent must be satisfied that the Person Being Identified is a

reasonable likeness (for example the shape of his or her mouth, nose, eyes and the

position of his or her cheek bones) to the Person depicted in those photographs.

4 Categories of identification Documents and evidence retention

4.1 At the face-to-face in-person interview described in paragraph 3.1, the ELNO or the

Identity Agent must ensure that the Person Being Identified produces original

Documents in one of the Categories in the following table, starting with Category 1.

4.2 The ELNO or the Identity Agent must be reasonably satisfied that a prior Category cannot

be met before using a subsequent Category.

4.3 The ELNO or the Identity Agent must:

(a) sight the originals of all Documents from Categories 1, 2, 3 or 4 produced by the

Person Being Identified; and

(b) retain copies of all Documents produced by the Person Being Identified.

4.4 The Documents produced must be current, except for an expired Australian Passport

which has not been cancelled and was current within the preceding 2 years.


Category Minimum Document Requirements

1 Australian Passport or foreign passport plus Australian drivers licence or Photo Card plus change of name or marriage certificate (if necessary)

2

Australian Passport or foreign passport plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary

3

Australian drivers licence or Photo Card plus full birth certificate or citizenship certificate or descent certificate plus Medicare or Centrelink or Department of Veterans’ Affairs card plus change of name or marriage certificate if necessary

4

(a) Australian Passport or foreign passport plus another form of government issued photographic identity Document plus change of name or marriage certificate if necessary

(b) Australian Passport or foreign passport plus full birth certificate plus another form of government issued identity Document plus change of name or marriage certificate if necessary.

5 Partnership

The ELNO or the Identity Agent must take reasonable steps to establish who is

authorised to sign the Participation Agreement on behalf of the partnership.

6 Body corporate

The ELNO or the Identity Agent must:

(a) confirm the existence and identity of the body corporate by conducting a search of

the Records of the Australian Securities and Investments Commission or other

regulatory body with whom the body corporate is required to be registered; and

(b) take reasonable steps to establish who is authorised to sign or witness the affixing

of the seal on behalf of the body corporate.

7 Individual as attorney



Potential Subscriber; and

(b) take reasonable steps to establish that executing the Participation Agreement is

authorised by the power of attorney.


8 Body corporate as attorney



Potential Subscriber; and

(b) take reasonable steps to establish that executing the Participation Agreement is

authorised by the power of attorney.

9 Identity Agents

9.1 Use of an Identity Agent

(a) The ELNO may use an Identity Agent.

(b) Where an Identity Agent is used, the ELNO must direct the Identity Agent to use

this Subscriber Identity Verification Standard.

(c) (Deleted)

(d) The ELNO must receive from any Identity Agent:

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

Identified signed, dated and endorsed as a true copy of the original by the

Identity Agent, and

(ii) an Identity Agent Certification in the following form:

I, [full name of the Person undertaking the verification of identity], of [full name of

Identity Agent] of [address of the Identity Agent] being a [occupation of the Identity

Agent] and having been directed to use the Subscriber Identity Verification Standard

by [ELNO name] hereby certify that:

(a) the identification relates to [full name of the Person Being Identified]; and

(b) the identification was carried out on [date]; and

(c) the original identity Documents as listed below were produced to me and

copies of these Documents signed, dated and endorsed by me as true copies

are attached to this certification; and

(d) the verification of identity was conducted in accordance with the Subscriber

Identity Verification Standard.

Date Signature of Identity Agent


List of identity Documents produced (see (c) above):

Description of identity Documents produced and endorsed

E.g. Australian Passport

9.2 Professional indemnity insurance

Each Identity Agent must maintain professional indemnity insurance:






(f) which includes coverage for verification of identity for the purposes of this

Subscriber Identity Verification Standard; and

(g) the terms of which do not limit compliance with paragraphs 9.2(a) to (f) of this

Subscriber Identity Verification Standard.

9.3 Fidelity insurance

Each Identity Agent must maintain fidelity insurance:







acts; and

(g) which includes coverage for verification of identity for the purposes of this


(h) the terms of which do not limit compliance with paragraphs 9.3(a) to (g) of this



9.4 Professional indemnity insurance with extension

If an Identity Agent does not comply with paragraphs 9.2 and 9.3, the Identity Agent must

maintain professional indemnity insurance:







acts; and

(g) which includes coverage for verification of identity for the purposes of this


(h) the terms of which do not limit compliance with paragraphs 9.4(a) to (g) of this


10 Further checks

The ELNO or the Identity Agent must undertake further steps to verify the identity of the

Person Being Identified where:

(a) the ELNO or the Identity Agent knows or ought reasonably to know that:

(i) any identity Document produced by the Person Being Identified is not genuine;

or


Identified is not a reasonable likeness of the Person Being Identified; or

(iii) the Person Being Identified does not appear to be the Person to which the

identity Document(s) relate; or


___________

1 Midland Square, Midland WA 6056Tel. +61 (0)8 9273 7341

[email protected]

LG 1

557

landgate.wa.gov.au

Troubleshooting VOI

VOI – why, when, how | RACV Club | 2 March 2016 Page 1 of 8

Client unable to attend office to be identified

Consider registering to use Australia Post, ZipID, IDSecure and/or IDfy * InfoTrack.

Remember to check the documents received from an identification agent to ensure they

are legible and do not contain errors. For example, the documents are not complete

because a photo of the client was not provided by the identification agent.

Where any errors are discovered seek an explanation from the identification agent. In

some circumstances it may be necessary for the client to be identified for a second time.

Identity documents match up but the client has an alias. For

example, their name is Thomas but they are known to your office

as Tom.

Prepare a statutory declaration to be signed by the client stating their current correct

name and also listing the other name(s) they are known as. Keep this declaration on your

file.

See attached sample.

Discrepancies in client’s name as disclosed in the identity

documents

Ask the client for:

• an explanation as the reason may be cultural or they may have changed their name

by marriage

• documents to back up their explanation such as a marriage and/or change of name

certificate.

Where they cannot satisfactorily explain the difference you may need to request that they

apply to have the identity document(s) re*issued with the name difference corrected.

For example, their passport refers to John Smith and their drivers licence John B. Smith.

John should be told to obtain a new drivers licence which is consistent with the name on

their passport. Only once the amended document has been provided are you able to

verify their identity.

Requested by a lender / mortgagee to verify identity a

mortgagor pursuant to section 87A of the Transfer of Land Act

1958 (Vic) when providing a solicitor’s certificate

S.87A(1) relevantly provides that:

At the time of execution of a mortgage or a variation of mortgage, a mortgagee

must take reasonable steps to verify the authority and identity of a mortgagor …

Where the practitioner for the mortgagor undertakes an authority and identity check at

the request of a mortgagee it is arguable that they are acting as an agent for the

mortgagee. This would give rise to a conflict.

LPLC recommends that a practitioner who is asked to verify authority and identity of the

mortgagor notifies the mortgagee in writing that they are unable to so as this would mean


they are acting as agent for the mortgagee which gives rise to a conflict. The mortgagee

should be told to undertake its own verification.

Identity documents in another language

The documents will need to be translated. LPLC recommends using a translator

accredited by National Accreditation Authority for Translators and Interpreters Ltd (NAATI).

Unable to verify identity of client

This may occur for any number of reasons including:

• the client looks different to their photo

• the documents do not appear genuine

• the client has no identification documents

• the client is pretending to be someone else

According to the recent publication by Marsh Fraud and Scams – How to Protect Your

Business awareness of the threat of frauds and scams is the key to minimising risk.

Marsh also refers to criminals engaging in “social engineering’ or more commonly known

as “confidence tricks” to overcome risk controls. One example given is where a criminal

calls a law firm with some kind of urgent problem and requires immediate network access.

These criminals may appeal to vanity, authority and greed but more commonly simply rely

on people’s natural helpfulness.

How much should I charge to VOI a client?

Charge a fee which reflects the risk as well as covers the necessary steps and precautions.

For example, the process to identify a long standing client would probably be cheaper

comparted to a client who walks in off the street.


Example of fraud involving a practitioner

You have been acting for a foreign investor selling real estate in Melbourne. Settlement is

due 30 June, one of your busiest times in the office. On 29 June you are contacted by

someone claiming to be from the firm’s bank. This person tells you the client’s funds are at

risk of being stolen and that you should immediately call a number which they provide to

you and to follow the directions of the person you contact. You are told by this person

someone will contact you tomorrow about transferring the funds to a safe account.

Compare this scenario to a recent case in the UK (search BBC/ Legal career ‘hit by vishing

scam’) where criminals posed as bank staff and told a lawyer funds in her firm’s bank

account were at risk. The practitioner transferred the funds into a new account which

were quickly transferred by the fraudsters to other accounts and withdrawn.

If you are contacted by someone claiming to be from your bank and have caller ID keep

a written record of the number of the caller.

Ask the caller to give you their contact details.

Before doing as directed by the caller contact the branch of your bank where your

account was established and ask them whether they can verify the directions you have

been given.

If you receive an email which contains directions for transferring funds, even where the

email is from the client, always telephone the client to verify the information. For more

information see the LPLC blog Identify your client and ensure they are instructing you.

Where you are unable to verify the identity of a client the client may be attempting to

commit a fraud. You need to be strategic and careful when dealing with a client whose

identity is in doubt. Having a written office policy is one way of ensuring the situation is

handled properly.

Consider the following scenarios and our comments which may help you to develop an

office policy to deal with this situation.

First scenario

You have received via post original and/or copy identity documents from a client that you

doubt are genuine.

Check any Australian*issued identifying credentials such as birth certificates, driver

licences and passports using the Commonwealth Government’s Document Verification

Service (DVS). The DVS will verify whether the number of the identity document is valid or

invalid.

If the number of the identity document is invalid:

• you are not obliged to notify the client of your suspicions but may wish to notify the

client that you are unable to act for them

• consider the need to contact your local police station to inform them that you are in

possession of identity documents which you suspect may be false.

To assist you to in making a decision about whether to contact the police refer to the

attached four rulings issued by the Law Institute Ethics committee. In summary the LIV

Ethics committee view seems to be that a practitioner is not breaching the conduct

rules by notifying the police of their suspicions.


Where you decide to contact the police ask the police what they would like you to

do. They may require that you complete a fraud report form. This form and more

information can be found on Victoria Police’s Crime Prevention and Community

Safety>Fraud>Reporting fraud page.

• retain a copy of the documents. Where the client requires you to return any

documents you may do so unless told otherwise by the police.

Second scenario

• A new client attends your office and instructs you to act for them in the sale of a piece

of real estate. The client gives you the certificate of title and a discharge of mortgage.

• You send the client to an identity agent to verify their identity but the agent informs you

they were unable to as the client does not look like the person in the photo identity

documents.

• Shortly after receiving this call the client shows up at your office demanding you give

them back the certificate of title.

Don’t panic but be aware that a client may be upset. It may be that you have caught

them out and they are in a panic. Always be alert to the possibility that the client may

become violent. They may also demand that you give back any documents they have

given you.

Before confronting the client inform someone else in the office what has occurred

preferably a principal and/or office manager, and have someone accompany you when

you see the client.

Ask the client to provide you with their identity documents and explain that you need to

verify their identity to enable you to continue to act.

Where the client’s identity remains in doubt you are not obliged to return the title(s) to the

client.

If the client refuses to co*operate and/or demands the return of the title(s) ask the client to

leave your premises. If they refuse to go tell them they are trespassing and should leave

immediately or you will have no alternative than to contact the police.

See our comments above about contacting the police. You should also notify the Land

Registry.


Sample name declaration

Statutory declaration

Re: Verification of identity

I,

of

1. My name as shown on my ……………………….…[insert identity document, eg.

passport / birth certificate]

is ……………………………

2. I am also commonly known as ……………………………….……………………………….

4. My true and correct name is ……………………………….……………………………….

I acknowledge that this declaration is true and correct and I make it in the belief that a

person making a false declaration is liable to the penalties of perjury.

Declared at

on the ……………….day of ………………20…..

)

)

)………………………………………

)

Before me: ……………………………….……………………………….…………………………….

Witness to print full name, address and qualification:

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….


Ethics rulings

Ruling Number: R4676

Category: Checking Identity * Release of documents

Area of Law: Legal practice management

Ruling Date: 18 Nov 2010

Publication Date: 4 May 2011

Background

A law firm is entitled to request any type of identification it wishes (within reason) to ensure

that the client authority to release documents is genuine. However, it is not necessary to

view 100 points of identification where the request comes from another legal practitioner.

Firm X sent to Firm Y an authority from its client to hand over documents belonging to her

and her late husband. Firm Y declined to hand over those documents until Firm X provided

100 points of identification for the client.

Firm X requested guidance from the Ethics Committee in relation to the identification

requirements required by Firm Y before releasing deeds from its strongroom. In addition,

Firm X asked whether it was necessary to provide 100 points of identification where the

requesting entity was a law practice holding professional indemnity insurance.

Firm Y advised that it had formulated a policy within the firm for dealing with requests for

deeds from its strongroom. Firm Y advised that simply relying on a law firm's letterhead was

no longer enough, given the increase in identity fraud. It had therefore researched

identification procedures used by other entities, such as banks, and adopted a similar 100

points of identity requirements.

Firm Y also sought guidance from the Ethics Committee, particularly in relation to the types

of identification requirements it should request when the following three scenarios arise:

• where the former client requests documents/deeds (and there is no lawyer involved);

• where the former client's request comes to the firm via the client's lawyer;

• where an agent of the former client (who is not legally represented) requests the

documents (for instance, on the death of the former client).

Ruling

In the opinion of the Ethics Committee and on the information presented the practitioner

should comply with the original written authority of the former client unless the practitioner

has reasonable grounds to doubt the authenticity of that authority.


Category: Privilege/confidentiality * Crime/fraud

Area of Law: Criminal

Ruling Date: 1 Mar 1996

Publication Date: 1 Oct 2004

Background

A legal firm requested the Ethics Committee to determine whether the Firm was required

to disclose the identity of their client to the Police. The Police suspected the client of

committing a criminal offence.


Ruling

In the opinion of the Ethics Committee and on the information provided:

1. That while the identity of the client is confidential, if ordered by a Court to disclose

the identity of the client, the Firm would be required to disclose the same.


Category: Privilege/confidentiality * Crime/fraud


Ruling Date: 1 Feb 2004

Publication Date: 1 Jun 2004

Background

A solicitor considered he might have information about a possible murder of a woman by

her husband several years ago. He sought a ruling on whether he could tell the police of

his suspicions. The solicitor had never acted for either the husband or wife although he

employed the wife at one time and acted as mediator in a commercial dispute involving

the husband.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. If any information was not obtained in the course of a retainer, the solicitor was not

governed by fiduciary duties of confidentiality or by r3 of the Professional Conduct and

Practice Rules 2003. The practitioner must make a decision based on the same ethical

principles governing all members of society, keeping in mind his additional obligation

not to bring the profession into disrepute.

2. In all the disclosed circumstances, the Ethics Committee recommends that the

practitioner should disclose any relevant information to the police.


Category: Trust account * Crime/fraud * Solicitor as witness


Ruling Date: 1 Mar 2004

Publication Date: 1 Jul 2004

Background

A practitioner may not be prevented from representing a client in one matter despite

being a potential witness in a separate matter. A firm received trust funds from an

incarcerated client whom they represented in his personal injury matter. The money came

from another prisoner who owed funds to the client. This appeared to be confirmed by

letters signed by the second inmate. The second inmate subsequently advised the firm by

telephone that the client had obtained the funds from him by deception. The second

inmate had expected the firm to provide the funds to his mother overseas. Funds

remained in the trust account pending separate criminal and professional standards

investigations. A warrant over the file was exercised and the firm was asked to provide a

statement to police.

The firm asked the Ethics Committee to advise:


1. whether it could continue to act in the personal injury matter and, if so,

2. whether that position changed if criminal charges were laid and the firm was

called to give evidence against their client.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. The Ethics Committee did not consider there was a conflict of interest in these

circumstances and accordingly has no issue with the firm continuing to act for the

client in his personal injury matter.

2. The Ethics Committee did not anticipate that this position would necessarily change in

the event of criminal charges being laid against the client and the firm’s being

required to give evidence, but the issue should be revisited in the light of the

circumstances at such time.

Contact details

Law Institute of Victoria |Ethics Committee of Law Institute of Victoria Ltd

Legal Ethics Manager | Phone: 03 9607 9336 |Email: [email protected]

Verification of Identity FAQs

What is a Subscriber?

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

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

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

Who can undertake a VOI?

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

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

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

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

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

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

Do VOI requirements apply to existing clients?

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

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

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

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

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

What do I do for clients overseas?

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

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1 ARNECC MPR Version 4 Guidance Note #1: Client Authorisation – Updated May 2017

MODEL PARTICIPATION RULES GUIDANCE NOTE

CLIENT AUTHORISATION

1 INTRODUCTION

This guidance note aligns with Version 4 of the Model Participation Rules and explains:

• what a Client Authorisation is;

• why a Client Authorisation is required;

• when a Client Authorisation is required; and

• how a Client Authorisation is completed.

This guide does not constitute legal advice nor does it replace prudent conveyancing

practice. Nothing written in this guide overrides the Electronic Conveyancing

National Law, Participation Rules, any other relevant legislation or Registrar’s

Prescribed Requirements.

2 WHAT IS A CLIENT AUTHORISATION?

A Client Authorisation is a document that enables a party to a transaction (the client) to

authorise a conveyancer or lawyer to act on their behalf in that transaction. While the Client

Authorisation empowers a Representative to act for a client in a similar way to a power of

attorney, legislation specifically states that the Client Authorisation is NOT a power of

attorney. Accordingly a Client Authorisation does not need to comply with any legislative

requirements relating to powers of attorney or to be registered in those jurisdictions where

registration of powers of attorney is required.

While acting on behalf of the client under a Client Authorisation, the conveyancer or lawyer

can:

• sign registry instruments or other documents;

• present registry instruments or other documents for lodgment with the Land Registry;

and

• authorise or complete any associated financial aspects of the transaction.

1


The Client Authorisation clearly sets out the details of the authorisation and the completed

form must be retained as supporting evidence of authority for the transaction.

3 WHY IS A CLIENT AUTHORISATION REQUIRED?

In electronic conveyancing a client will not be able to access the electronic lodgment

network to sign a registry instrument or document.

A Client Authorisation is required to give the client’s conveyancer or lawyer authority to sign

the registry instrument or document on the client’s behalf.

4 WHEN IS A CLIENT AUTHORISATION REQUIRED?

A Client Authorisation is required whenever a conveyancer or lawyer represents a client in

a transaction in an electronic lodgment network, except where the conveyancer or lawyer

is preparing and lodging a caveat or, in those jurisdictions that have them, a priority notice,

extension of priority notice, withdrawal of priority notice, settlement notice or withdrawal of

settlement notice.

For a caveat priority notice, extension of priority notice, withdrawal of priority notice,

settlement notice or withdrawal of settlement notice a Client Authorisation is optional as the

purpose of these documents is to provide notification of an interest. Whether a Client

Authorisation will be obtained or not is dependent on the circumstances of the individual

transaction.

For example, it may not be possible to obtain a Client Authorisation prior to processing a

caveat. However, if it is a purchaser’s caveat it may be dealt with as part of the transaction

that is covered in a Client Authorisation.

5 HOW IS A CLIENT AUTHORISATION COMPLETED?

A Client Authorisation is completed by the client and the conveyancer or lawyer. Once

complete, it is signed by the client or their attorney or agent as a granting of that

authorisation.

The conveyancer or lawyer (or their agent) also needs to sign the form in order to certify

that reasonable steps were taken to ensure the form was signed by the client or by the

client’s attorney or agent. If the Client Authorisation is signed by the conveyancer or

lawyer’s agent, the conveyancer or lawyer does not also need to sign the Client

Authorisation.

A properly completed Client Authorisation form is one that is filled in, dated, and signed by

the Client and the Representative or the Client and the Representative Agent.


Ideally, the verification of identity of the client would be completed at the time the client signs

the Client Authorisation. Refer to MPR Guidance Note #2: Verification of Identity. However,

there may be instances where these processes are not able to occur simultaneously and in

these instances the conveyancer or lawyer needs to take reasonable steps to ensure that

the Client Authorisation is being signed by their client or by the client’s attorney or agent.

This may be done by referencing the verification of identity supporting documentation and

ensuring it is the same person signing.

Authorisation can be given:

• for a specific transaction or transactions, in which case the transactions should be

listed on the Client Authorisation form; or

• as a standing authority, in which case the categories of transaction should be ticked

on the Client Authorisation form, either until a specified date or until it is revoked; or

• for a batch of transactions, in which case details of the transactions the batch authority

is intended to cover should be attached.

A Client Authorisation must be a standalone form and substantially comply with the form in

Schedule 4 of the Model Participation Rules.

A Client Authorisation Smartform is available on the ARNECC website at

https://www.arnecc.gov.au/publications/forms. This Smartform has been created for ease

of use and has the same content as the Client Authorisation form in the Participation Rules.

A printable version of the form is also available and can be completed manually. For

readability the Client Authorisation form should be completed in Arial font with a minimum

font size of 10 point. If the form is completed manually blue or black ink should be used.

Examples of completed Client Authorisation forms are annexed to this guidance note.

6 FREQUENTLY ASKED QUESTIONS

Q1: Can I design my own version of the Client Authorisation?

A1: No. The Client Authorisation must be in the form required by the Participation Rules.

This is to ensure that everyone is participating in a conveyancing transaction on the

same terms. Slight variations in the format or style are permitted but there must be

no change to the words.

Q2: Where can I get a Client Authorisation form?

A2: A Client Authorisation form is available on the ARNECC website at

https://www.arnecc.gov.au/publications/forms.

https://www.arnecc.gov.au/publications/forms

https://www.arnecc.gov.au/publications/forms


Q3: If I am a conveyancer or lawyer and I use an agent to verify the identity of my

client, do I need to sign the Client Authorisation as well as my agent?

A3: No. The form is signed either by the conveyancer or lawyer or their agent in order to

certify that reasonable steps were taken to ensure the form was signed by the client

or by the client’s attorney or agent.

When a conveyancer or lawyer uses an agent to verify the identity of their client and

the Client Authorisation is signed by the client at the same time only the agent needs

to sign the Client Authorisation form.

Q4: Do I need to complete a Client Authorisation if I am a sole trader conveyancer

or lawyer and I am representing myself?

A4: No. If you are a sole trader conveyancer or lawyer, you are allowed to represent

yourself in an electronic lodgment network without signing a Client Authorisation.

Q5: If I am a financial institution acting on my own behalf, do I need a Client

Authorisation to lodge a mortgage or discharge a mortgage over my customer’s

property?

A5: No. When lodging a mortgage or discharge of mortgage you are not representing

your customer.

Q6: Does the Client Authorisation take the place of the usual retainer agreement or

authority to act entered into between my client and me?

A6: No. The Client Authorisation is required in addition to the usual retainer agreement

or authority to act. The usual retainer agreement or authority to act cannot be

inconsistent with the Client Authorisation.

Q7: Can I incorporate the Client Authorisation in my usual retainer agreement or

authority to act?

A7: No. As the Client Authorisation is a prescribed form and may be required for evidence

it must be a separate document.

Q8: Can a Client Authorisation be signed overseas?

A8: Yes. An overseas client is to be treated the same as a client in Australia and therefore

a Client Authorisation form can be signed overseas.

Q9: Does “substantial compliance” mean I can vary the terms of the client

authorisation?

A9: No. Only superficial changes are permitted. Subscribers are not able to vary the terms

of the Client Authorisation.


Q10: Does a batch authority need to list individual properties or can it reference a

subdivision?

A10: It is up to the Client and the Representative to agree how best to describe what is

covered by a batch authority so that there is no ambiguity. For example, if using the

PDF form, particular transaction types could be ticked on the front page of the Client

Authorisation form and details of the land affected annexed. Alternatively, if using the

Client Authorisation Smartform, all the details must be set out in the attachment.

Q11: How do Representative Agents sign the Client Authorisation form when the

Clients listed in the Client Authorisation form have their identity verified at a

different time by different people?

A11: If the Clients listed in the Client Authorisation form are being verified at different times

by different people, then two Client Authorisation forms should be prepared.

Q12: Can a Representative destroy a paper Client Authorisation form if they have an

electronic copy of it?

A12: The Client Authorisation and any evidence supporting the Client Authorisation can be

stored electronically. However, the medium and means in which a Client

Authorisation and any evidence supporting the Client Authorisation are to be retained

is to be determined by the Subscriber, in light of the possible need to produce those

documents as evidence to a Court. Whichever medium is utilised the Client

Authorisation and any evidence supporting the Client Authorisation should be safely

and securely stored. A Client Authorisation and any evidence supporting the Client

Authorisation is required to be kept for 7 years from lodgment. Refer to MPR

Guidance Note #5: Retention of Evidence.

Q13: Can a Client Authorisation be digitally signed?

A13: There is no requirement in the Electronic Conveyancing National Law and Participation

Rules that the Client Authorisation Form needs to be wet-signed. Therefore it is up to

the Subscriber to determine whether the act of the client digitally signing the Client

Authorisation Form complies with the Electronic Transactions Act relevant to the

jurisdiction in question.

Q14: Do the Representative’s details need to be completed if a Representative Agent

is signing?

A14: Yes, the Representative’s details are required for all Client Authorisations.


Q15: Who needs to have their identity verified and sign the Client Authorisation when

a Subscriber is representing a government agency?

A15: A Subscriber representing a government agency must:

• identify the legal entity entitled to deal in the land in question (this could be a

Minister, the Secretary of a Department, a Director of a Statutory Authority, or a

statutory person as a corporation sole)

• have the Client Authorisation completed in the name of that legal entity

• have the Client Authorisation signed by a person with a written delegation to

deal in land on behalf of that legal entity

• sight and retain a copy of the instrument of delegation held by that person, and

• take reasonable steps to verify the identity of the person signing the Client

Authorisation.

Q16: What is the process for amending the Client Authorisation if we need to make

amendments so that it is consistent with the terms of our service agreements

with panel solicitors?

A16: The Client Authorisation is a prescribed form and must be used in substantially the

same form as that set out in the Model Participation Rules (MPR). Neither the layout

of the form nor its terms can be altered from that prescribed. In addition, its terms

cannot be varied by any other agreement between the parties. The reason for this is

to ensure everyone participating in a conveyancing transaction requiring the use of a

Client Authorisation does so on the same terms.

The form and its terms are reviewed whenever the MPR is reviewed and any proposed

amendments are subjected to industry consultation.

Q17: If financial institutions, as incoming and outgoing mortgagees, haven’t ticked

the “Transfer” box in the Client Authorisation Form does that mean we cannot

act on their behalf in a purchase transaction where they are the incoming

mortgagee?

A17: Rule 6.3(b) of the Participation Rules provides that “a Representative … must…enter

into a Client Authorisation with its Client [ie the incoming and outgoing mortgagee]

before the Subscriber Digitally Signs any Registry Instrument or other electronic

Document…”.

Your client should tick the “MORTGAGE” and "DISCHARGE/RELEASE OF

MORTGAGE" boxes as these are the only documents that they are giving you

authority to Digitally Sign and lodge.


The intention of the reference to “all Documents required to effect a purchase or

sale…” in the definition of “Transfer” is limited to transfer related documents, not

Mortgages.

Q18: For those companies that have in-house lawyers (and those lawyers hold the

necessary insurance requirements), do their own legal work internally and do

not instruct an external law firm or conveyancer, are they classified as self-

represented?

A18: A signed Client Authorisation is required where a Subscriber acts on behalf of a Client.

Where a Lawyer acts for their Subscriber employer and that Subscriber is a participant

in the transaction the Registrar has not specified a requirement for a Client

Authorisation.

Q19: Where we have a client with multiple transactional matters, ie a

developer/builder that buys and sells a lot, does the client sign a Client

Authorisation Form for each individual matter?

A19: You should consider using a Batch Authority or Standing Authority.

Q20: If a company usually signs their documents under Power of Attorney and there

are a number of different Attorney’s, does each and every Attorney need to sign

a Client Authorisation Form each time?

A20: The answer would depend on the provisions in the power of attorney. You should

review the power and make an assessment as to what is required. If a single attorney

can sign documents on behalf of the company, then a single attorney would sign the

Client Authorisation. If the power of attorney requires more than one attorney to sign

on the company's behalf, you would need to comply with the power's requirements.

Q21: What does it mean to have a properly completed Client Authorisation?

A21: The Client Authorisation form must be filled in, dated, and signed by the Client and

the Representative or the Client and the Representative Agent.

__________

CLIENT AUTHORISATION When this form is signed, the Representative is authorised to act for the Client in a Conveyancing Transaction(s).

Privacy Collection Statement: The information in this form is collected under statutory authority and used for the purpose of maintaining publicly searchable registers and indexes.

Representative Reference: BLOGGS-16-4-15

CL

IEN

T D

ET

AIL

S

CLIENT 1 CLIENT 2

NAME FREDERICK BLOGGS FREDA BLOGGS

ACN/ARBN

ADDRESS 11/53 ALBERT ST, BRISBANE 11/53 ALBERT ST, BRISBANE

TR

AN

SA

CT

ION

DE

TA

ILS

AUTHORITY TYPE SPECIFIC AUTHORITY (set out conveyancing transaction details below)



BATCH AUTHORITY (attach details pf conveyancing transactions)


PROPERTY ADDRESS

11/53 ALBERT ST, BRISBANE 10/100 QUEEN ST, BRISBANE

LAND TITLE REFERENCE(S) (and/or property description)

71011681

LOT 1 ON RP 1569

CONVEYANCING

TRANSACTION(S)








OTHER OTHER


SALE OF THIS PROPERTY PURCHASE OF THIS PROPERTY

CL

IEN

T A

UT

HO

RIS

AT

ION

AN

D S

IGN

ING


I CERTIFY that: (a) I am the Client or Client Agent; and



I AUTHORISE the Representative to act on my behalf, or where I am a Client Agent to act on behalf of the Client,

in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to: (a) sign Documents on my behalf as required for the Conveyancing Transaction(s); and




Frederick Bloggs DATE 16/4/15

SIG

N H

ER

E

Freda Bloggs DATE 16/4/15

SIG

N H

ER

E

CLIENT/CLIENT AGENT NAME: FREDERICK BLOGGS

CAPACITY:

AUSTRALIAN CONSULAR OFFICE WITNESS (if applicable)

NAME: DATE:

CLIENT/CLIENT AGENT NAME: FREDA BLOGGS

CAPACITY:


NAME: DATE:

RE

PR

ES

EN

TA

TIV

E D

ET

AIL

S A

ND

SIG

NIN


NAME Lamb Lawyers

ACN/ARBN 101 469 147

ADDRESS 1/100 QUEEN STREET, BRISBANE

I/We CERTIFY that reasonable steps have been taken to ensure that this Client Authorisation was signed by each of the Persons named above as Client or Client Agent. SIGNATURE OF REPRESENTATIVE OR REPRESENTATIVE AGENT IF APPLICABLE:

Lawrence Lawyer DATE 16/4/15

SIG

N H

ER

E

DATE / /

SIG

N H

ER

E

SIGNATORY NAME: LAWRENCE LAWYER SIGNATORY NAME:

CAPACITY: CAPACITY:


Terms of this Client Authorisation

1. What is Authorised

The Client authorises the Representative to act on behalf of the Client in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on the Client’s behalf as required for the Conveyancing Transaction(s); and (b) submit or authorise submission of Documents for lodgment with the relevant Land Registry;

and (c) authorise any financial settlement involved in the Conveyancing Transaction(s); and (d) do anything else necessary to complete the Conveyancing Transaction(s).

The Client acknowledges that the Client is bound by any Documents required in connection with a Conveyancing Transaction that the Representative signs on the Client’s behalf in accordance with this Client Authorisation.

2. Mortgagees

Where:

(a) the Representative represents the Client in the Client’s capacity as mortgagee; and (b) the Client represents to the Representative that the Client has taken reasonable steps to verify

the identity of the mortgagor

the Client indemnifies the Representative for any loss resulting from the Client’s failure to take reasonable steps to verify the identity of the mortgagor.

3. Revocation

This Client Authorisation may be revoked by either the Client or the Representative giving notice in writing to the other that they wish to end this Client Authorisation.

4. Privacy and Client Information

The Client acknowledges that information relating to the Client that is required to complete a Conveyancing Transaction, including the Client’s Personal Information, may be collected by and disclosed to the Duty Authority, the ELNO, the Land Registry, the Registrar and third parties (who may be located overseas) involved in the completion of the Conveyancing Transaction or the processing of it, and consents to the collection and disclosure of that information to any of those recipients, including to those who are overseas. For further information about the collection and disclosure of your Personal Information, refer to the relevant party’s privacy policy.

5. Applicable Law

This Client Authorisation is governed by the law in force in the Jurisdiction in which the Property is situated. The Client and the Representative submit to the non-exclusive jurisdiction of the courts of that place.

6. Meaning of Words Used in this Client Authorisation

In this Client Authorisation, capitalised terms have the meaning set out below:

Australian Legal Practitioner has the meaning given to it in the relevant legislation of the Jurisdiction in which the property is situated and in South Australia is a legal practitioner for the purposes of the Legal Practitioners Act 1981 (SA).

Batch Authority means an authority for the Representative to act for the Client in a batch of Conveyancing Transactions details of which are attached to this Client Authorisation.

Capacity means the role of the signatory (for example an attorney or a director of a company).

Caveat means a Document giving notice of a claim to an interest in land that may have the effect of an injunction to stop the registration of a Registry Instrument or other Document in the Titles Register.

Client means the Person or Persons named in this Client Authorisation.

Client Agent means a Person authorised to act as the Client’s agent but does not include the Representative acting solely in this role.


Discharge/Release of Mortgage means a Document that discharges or releases a Mortgage.



Duty Authority means the State Revenue Office of the Jurisdiction in which the property is situated.

ECNL means the Electronic Conveyancing National Law as adopted or implemented in a Jurisdiction by the application law, as amended from time to time.

ELNO means Electronic Lodgment Network Operator and has the meaning given to it in the ECNL.

Identity Agent means a Person who is an agent of either a Representative, or a mortgagee represented by a Representative, and who: (a) the Representative or mortgagee reasonably believes is reputable, competent and

appropriately insured; and (b) is authorised by the Representative or mortgagee to conduct verification of identity on behalf

of the Representative or mortgagee in accordance with the Verification of Identity Standard.

Jurisdiction means an Australian State or Territory.

Land Registry means the agency of a State or Territory responsible for maintaining the Jurisdiction’s Titles Register.

Land Title Reference means the relevant Land Registry’s unique identifier(s) for the property.

Law Practice has the meaning given to it in the relevant legislation of the Jurisdiction in which the land the subject of the Conveyancing Transaction is situated.

Licensed Conveyancer means a Person licensed or registered under the relevant legislation of the Jurisdiction in which the property is situated and in Western Australia is a real estate settlement agent for the purposes of the Settlement Agents Act 1981 (WA).

Mortgage means a Document by which a Person charges an estate or interest in land as security.

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



Prescribed Requirement means any Published requirement of the Registrar that Representatives are required to comply with.

Priority/Settlement Notice means a notice (other than a Caveat) which prevents (subject to specified exceptions) registration or recording in the Titles Register of a Registry Instrument or other Document affecting land or an interest in land until the notice lapses or is withdrawn, removed or cancelled.




Representative is the Australian Legal Practitioner, Law Practice or Licensed Conveyancer named in this Client Authorisation who acts on behalf of the Client and under the relevant legislation of the Jurisdiction in which the property is situated can conduct a Conveyancing Transaction.

Representative Agent means a Person authorised by a Representative to act as the Representative’s agent. For the avoidance of doubt this can include an Identity Agent.

Specific Authority means an authority for the Representative to act for the Client in completing the Conveyancing Transactions described in this Client Authorisation.

Standing Authority means an authority for the Representative to act for the Client as described in this Client Authorisation for the period of time set out in this Client Authorisation.


Transfer includes the preparation of all Documents required to effect a purchase or sale of land or any other transfer of land, and the liaison with, where relevant, any mortgagee or proposed mortgagee.

Withdrawal of Caveat means a Document which removes a Caveat.

The following pages contain additional representative examples of the Client Authorisation Form:

• Standing Authority, Representative signs; • Batch Authority, Representative signs; • Specific Authority, Representative Agent signs; • Specific Authority, witnessed overseas.



Representative Reference: BLOGGS-16-4-15 [STANDING AUTHORITY, REPRESENTATIVE SIGNS]

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CAPACITY: CAPACITY:

1 ARNECC MPR Version 4 Guidance Note #2: Verification of Identity – Updated May 2017


VERIFICATION OF IDENTITY

1 INTRODUCTION


• what verification of identity is;

• why verification of identity is required;

• when verification of identity is required; and

• how verification of identity is to be carried out.





2 WHAT IS VERIFICATION OF IDENTITY?

Verification of identity is a process carried out to ensure that a person is who they claim to

be.

The Participation Rules for electronic conveyancing require a Subscriber to take reasonable

steps to verify the identity of:

• Clients;

• Mortgagors;

• Persons to whom certificates of title are provided;

• Signers; and

• Subscriber Administrators.

3 WHY IS VERIFICATION OF IDENTITY REQUIRED?

The purpose of carrying out verification of identity is to reduce the risk of identity fraud and

the registration of fraudulent land transactions. Verification of identity of clients and

2


mortgagors is considered to be part of the due diligence required of conveyancing

professionals. With the introduction of electronic conveyancing, a Subscriber who is

representing a client will sign registry instruments or other electronic documents on the

client’s behalf. In a similar way, mortgagees can sign a mortgage certifying that they hold

a valid mortgage from the mortgagor.

In order for other participants in a conveyancing transaction to have confidence in the

registry instruments or documents, it is vital that the client’s or mortgagor’s identity is

verified.

4 WHEN IS VERIFICATION OF IDENTITY REQUIRED?

The various circumstances when verification of identity is required to be undertaken are

outlined below.

4.1 Clients

A Subscriber must identify each client for which it has authority to sign. Where the client:

• is an individual, the identity of that individual must be verified; or

• is a company, the existence of the company must be confirmed and the identity of

the person or persons signing for the company or witnessing the company seal must

be verified; or

• has appointed an individual as an attorney to sign for the client, the identity of

the attorney must be verified; or

• has appointed a company as an attorney to sign for the client, the existence of

the company must be confirmed and the identity of the person or persons signing for

the company or witnessing the company seal must be verified.

4.2 Mortgagor

If a Subscriber is an incoming mortgagee (for example, a financial institution acting for itself),

the Subscriber must verify the identity of the mortgagor or their agent.

If a Subscriber is representing an incoming mortgagee (for example a law firm on the panel

for a financial institution) it must verify the identity of the mortgagor or their agent, unless it

is reasonably satisfied that the mortgagee has taken reasonable steps to verify the identity

of the mortgagor or their agent.

4.3 Paper certificates of title

A Subscriber must verify the identity of any client or client agent before providing them a

duplicate or paper certificate of title.


A Subscriber must verify the identity of any mortgagor, former mortgagor or their agent

before providing them a duplicate or paper certificate of title, unless the Subscriber is

reasonably satisfied that the mortgagee it represents has taken reasonable steps to verify

the identity of each mortgagor, former mortgagor or their agent.

4.4 Signers

A Subscriber must verify the identity of each person who is to digitally sign documents on

its behalf prior to a Digital Certificate being allocated to that person.

4.5 Subscriber Administrators

The Subscriber must verify the identity of each person whom it appoints as a Subscriber

Administrator, prior to their appointment as a Subscriber Administrator.

5 HOW IS VERIFICATION OF IDENTITY TO BE CARRIED OUT?

In all of the circumstances outlined above, a Subscriber is required to take reasonable steps

to verify the identity of the person.

Where a Subscriber is an organisation, any duly authorised person can undertake the

verification of identity.

A Subscriber must give a certification in the registry instrument for the conveyancing

transaction that reasonable steps have been taken to verify identity.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether reasonable steps were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court

on an objective basis.

The Subscriber decides what steps to take to verify the person’s identity. What constitutes

reasonable steps may be influenced by various factors that when taken into account

contribute to a Subscriber being able to reasonably have confidence in the person’s identity.

Examples of these factors might include the length of time a Subscriber has known the

person or whether they have represented the person on previous occasions. Where a

mortgagee represented by a Subscriber undertakes the verification of identity and therefore

determines what steps to take to verify the mortgagor’s identity, the Subscriber must be

reasonably satisfied that the mortgagee took reasonable steps.


A standard for undertaking verification of identity is set out in Schedule 8 of the Participation

Rules. This Verification of Identity Standard is not mandatory. However, if this Verification

of Identity Standard is properly carried out by one of the prescribed categories of people

the Subscriber will be deemed to have taken reasonable steps to verify identity.

The Verification of Identity Standard is one set of reasonable steps but there are other

reasonable steps that can be taken to verify identity.

Subscribers are required to retain evidence supporting the verification of identity in order to

demonstrate that reasonable steps were taken.

5.2 How can verifications be conducted overseas?

Where a Subscriber’s client or a mortgagor is overseas, the Subscriber or mortgagee

(represented by a Subscriber) needs to decide what steps to take to verify the person’s

identity having regard to the available services and options under the circumstances.

One available option is to utilise the services of an Australian Embassy, High Commission

or Consulate coupled with any necessary further steps in order for the Subscriber or

mortgagee to be reasonably confident in the person’s identity. This process is detailed in

the Appendix to this Guidance Note.

An international financial institution or law practice would also be able to use overseas

personnel to conduct verification of identity.

5.3 When can an agent be used?

A Subscriber can use an agent to undertake verification of identity on its behalf.

A Subscriber that engages an agent to conduct a verification of identity must direct the

agent how to conduct the verification of identity. This could be by using the Verification of

Identity Standard or some other way that constitutes taking reasonable steps.

A Subscriber should obtain from their agent supporting documentation so the Subscriber

can make the required verification of identity certification. Refer to Participation Rules

Guidance Note #3: Certifications.

5.4 Signing of a Client Authorisation or Mortgage

Ideally, a Client Authorisation would be signed at the same time as the verification of identity

is undertaken in order to ensure it is signed by the client or client agent. However, there

may be instances where these processes are not able to occur simultaneously. In these

instances the Subscriber needs to take reasonable steps to ensure that the Client

Authorisation is being signed by their client or the client’s agent that was identified.


Similarly for the granting of a mortgage, the Subscriber must take reasonable steps to

ensure that it is the mortgagor that was identified that grants the mortgage.

This may be done by checking the verification of identity supporting documentation and

ensuring it is the same person signing.

5.5 Further Steps

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s identity.

The Participation Rules require further steps to be taken where:

• an identity document does not appear to be genuine;

• a photograph on an identity document is not a reasonable likeness;

• the person being identified does not appear to be the person to which the identity

documents relate; or

• it is otherwise reasonable to take further steps.

Some circumstances where it may otherwise be reasonable to take further steps could

include:

• where the client has very limited identity documents and there is no explanation as to

why; or

• where you become aware the identity documents have been cancelled; or

• where there appears to be an inconsistency between the identity documents and the

Client Authorisation or mortgage, such as differing signatures; or

• where an agent is used and there appears to be inconsistencies in the supporting

documentation they provided in relation to verification of identity.

Examples of further steps that could be taken include (but are not limited to):

• obtaining more identity documents;

• making enquiries with the client or third parties;

• where the identity documents are Australian using electronic verification services;

• where it is a foreign identity document checking the document looks the same as

those on the respective country’s government website;

• where the identity document is in another language having the identity document

translated by an authorised translator;

• where the verification is unable to be conducted face-to-face due to remoteness

conducting the verification by electronic means with further steps to satisfy yourself of

the person’s identity.


Some circumstances may not be directly linked to verification of identity but may raise

awareness that greater care should be taken in relation to a particular transaction and the

person being identified. For example, the transaction is urgent, you doubt the veracity of

the instructions, it involves a non-standard mortgage of an unencumbered title or the client

has limited English. Whilst such transactions may be legitimate, it may be necessary to

verify the circumstances surrounding the transaction. For example, checking the reason

for urgency or engaging an independent interpreter.

5.6 Previous verification of identity

Where a verification of identity has occurred within the previous 2 years (either by applying

the Verification of Identity Standard or some other way that constitutes reasonable steps),

the person’s identity does not need to be verified again, provided the Subscriber takes

reasonable steps to ensure they are dealing with the person who was previously identified.

It is expected the Subscriber would review the evidence for the previous verification in order

to be able to satisfy themselves that they are dealing with one and the same person.

5.7 What is the Verification of Identity Standard?

The Verification of Identity Standard sets out procedures for how verification of identity may

be performed. If the Standard is properly carried out by one of the prescribed categories of

people then it will be deemed reasonable steps. Where there is a dispute the Subscriber

will be required to prove that the Verification of Identity Standard was properly carried out

for it to be deemed reasonable steps.

5.7.1 Who can use the Verification of Identity Standard?

Anyone can use the Verification of Identity Standard. However, for it to be deemed

reasonable steps the Standard must be properly carried out by one of the following

categories of people:

• Subscriber

The Subscriber can apply the Verification of Identity Standard themselves.

• Mortgagee (where the mortgagee is represented by a Subscriber)

Where a mortgagee is not a Subscriber themselves but is represented by a

Subscriber, the mortgagee can apply the Verification of Identity Standard to undertake

verification of the identity of the mortgagor.

• Identity Agent

An Identity Agent is an agent of either the Subscriber or a mortgagee that is

represented by a Subscriber.


The Subscriber or the mortgagee must reasonably believe the Identity Agent is reputable,

competent and insured. An Identity Agent must maintain minimum levels of insurance.

The Verification of Identity Standard can be applied in whole or in part by any of the above

categories of people acting as the Identity Verifier in the Standard. For example, the

Subscriber may do some of the verification related to companies such as establishing who

is authorised to sign for the company but use an Identity Agent to do the face-to-face

verification of identity of the company’s officers. Alternatively, the Subscriber may engage

an Identity Agent and direct them to undertake the Verification of Identity Standard in its

entirety.

5.7.2 How is the Verification of Identity Standard used?

This section describes how the Verification of Identity Standard is used, and what is required

of those using it in various situations.

5.7.2.1 Face-to-face verification

To comply with the Verification of Identity Standard the person undertaking the verification

(Identity Verifier) must conduct a face-to-face in-person interview with the person to be

identified.

The Identity Verifier must carefully inspect the documents used to verify the identity and

ensure the documents are current (except for an expired Australian passport which may

have expired within the last two years) and original. Any photographs on the documents

must reasonably correspond with the appearance of the person to be identified.

5.7.2.2 Identification Document Categories

The Person Being Identified must supply original identification documents from the list of

documents in the categories in the Verification of Identity Standard. The first assessment

that needs to be made is whether or not the Person Being Identified is an Australian citizen

or resident. If they are, then Categories 1 to 5 must be used. If they are not, Category 6

must be used. The highest category available must be used. A lower level category can

only be used if the person being identified does not possess the documents required for the

higher level, the documents have expired, or if the document is an Australian passport that

has been expired for a period of more than 2 years.

The document categories in the Verification of Identity Standard require that a change of

name or marriage certificate is to be provided if applicable. There may be instances where

identification documents issued by different government departments have been registered

in differing names but a change of name certificate is not appropriate, as that individual has

not changed and/or does not intend to officially change their name. In such a situation an

Identity Verifier must take reasonable steps to ensure the person being identified is one and


the same person as in the varying identification documents provided. This may involve the

Identity Verifier undertaking further checks to verify that person’s identity.

Category 5 is for Australian residents who need to use an Identity Declarant. An Identifier

Declaration is a statutory declaration by a person who knows the person being identified.

The person making the statutory declaration is called the Identity Declarant. There are

specific prescribed requirements on who can be an Identity Declarant and what must be

included in the Identifier Declaration. The Identity Declarant must also have their identity

verified by the Identity Verifier using the Verification of Identity Standard. However, the

identity of the Identity Declarant cannot be verified by a further Identity Declarant.

5.7.2.3 Verification of Identity of Bodies Corporate

For a body corporate, an Identity Verifier must:

• confirm the existence of the body corporate;

• take reasonable steps to establish who is authorised to sign for the body corporate or

witness the affixing of any seal; and

• verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.

5.7.2.4 Verification of Identity of Attorneys

For an attorney who is an individual, an Identity Verifier must:

• confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

• take reasonable steps to establish that the conveyancing transaction is authorised by

that power of attorney; and

• verify the identity of the attorney.

For an attorney who is a body corporate the Identity Verifier must:

• confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

• take reasonable steps to establish that the conveyancing transaction is authorised by

that power of attorney;

• confirm the existence of the body corporate;

• take reasonable steps to establish who is authorised to sign for the body corporate or

witness the affixing of any seal; and

• verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.


5.7.2.5 Evidence Required from an Identity Agent

Where the verification of identity is conducted by an Identity Agent, the Subscriber or

mortgagee (represented by a Subscriber) must receive from the Identity Agent an Identity

Agent Certification in substantial compliance with that set out in Schedule 9 of the


The Identity Agent Certification details:

• to whom the verification of identity relates;

• when it was carried out and by whom;

• what verification of identity documents were used; and

• states that it was done in accordance with the Verification of Identity Standard as

directed by the Subscriber.

The Identity Agent must also provide copies of the identity documents relied on endorsed

as true copies.


Q1: How do I verify the identity of my client who is overseas?

A1: You need to decide what steps to take to verify the person’s identity having regard to

the available services and options under the circumstances.

One option may be to utilise the services of an Australian Embassy, High Commission

or Consulate (as set out in the Appendix), coupled with further steps in order for the

Subscriber or mortgagee (represented by a Subscriber) to be reasonably confident in

the person’s identity.

Further steps may include: making enquiries with the client or third parties, where the

identity documents are Australian using electronic verification services, where it is a

foreign identity document checking the document looks the same as on the respective

country’s government website, where the identity document is in another language

having the identity document translated by an authorised translator, or where the

verification is unable to be conducted face-to-face due to remoteness conducting the

verification by electronic means with further steps to satisfy yourself of the person’s

identity.


Q2: My client has one name on his/her passport and an anglicised or abbreviated

version of that name on his/her driver’s licence? What should I do?

A2: It is possible that documents issued by different government departments may have

differing versions of a name.

You must take reasonable steps to ensure the person required to be identified is one

and the same person referenced in the differing documents. Examples which may be

appropriate in some circumstances are:

• sighting other types of documents or letters issued by an employer, government

agency or educational institution and showing the person’s name and other

details;

• seeking confirmation from relevant organisations of the information given by the

person and whether they are aware that the person is also known by another

name; and

• asking the person questions about the reasons for the differing names,

recording their answers and recording whether and on what basis you

considered those answers to be satisfactory.

Q3: Can I store supporting evidence of the verification of identity electronically?

A3: Yes. Verification of identity evidence can be stored electronically. However, the

medium and means in which documents supporting the verification of identity are to

be retained is to be determined by the Subscriber in light of the possible need to

produce those documents as evidence to a Court. Whichever medium is utilised the

evidence should be safely and securely stored. Evidence supporting the verification

of identity is required to be kept for 7 years from lodgment. Refer to Participation

Rules Guidance Note #5: Retention of Evidence.

Q4: Will verification of identity cause delays in the conveyancing process?

A4: Verification of identity should not cause delays in the conveyancing process as it is

considered part of existing prudent conveyancing practice. It is expected that some

form of verification of identity is already being undertaken in the paper conveyancing

process.

Q5: Can a mortgage broker act as an Identity Agent for a mortgagee?

A5: Yes. A mortgage broker can act as an Identity Agent for a mortgagee for the purpose

of verifying the identity of a mortgagor. The mortgage broker must be providing credit

services related to real property and be either a holder of an Australian Credit Licence,

a credit representative of a holder of an Australian Credit Licence, or an employee or


director of the holder of an Australian Credit Licence or of a related body corporate of

a holder of an Australian Credit Licence engaging in the credit service on behalf of

that licensee. The mortgage broker must hold or be covered by insurance in

accordance with legislative requirements and which includes cover for verification of

identity.

Q6: I have known some of my clients for over 30 years and have previously used

their legal names in legal documents. Why should I verify their identity just

because I have not seen them in the last two years?

A6: If the Verification of Identity Standard is not applied, the Subscriber must determine

what actions it considers would, in the circumstances, constitute the taking of

reasonable steps to verify the client’s identity. A situation where you have known the

client for over 30 years may be one where you decide that the requirement to take

reasonable steps to identify the client is satisfied by the years of interaction with that

client.

Q7: I am a Subscriber who is a financial institution. Can I use the AML/CTF Know

Your Customer schema to verify the identity of my mortgagor?

A7: A Subscriber must determine for itself what steps it considers constitutes the taking

of reasonable steps to verify the identity of a client, or, in this case, a mortgagor. It

may be reasonable, in the circumstances, to use the AML/CTF schema. The risk of

determining what is reasonable in the circumstances lies with the Subscriber.

Q8: A 92 year old in a nursing home needs to sell her home to pay an

accommodation bond. She has not seen her solicitor for at least 25 years. She

has never had a passport or driver’s licence. How should a Subscriber

determine what may constitute reasonable steps?

A8: In this situation some matters the Subscriber may consider in deciding what steps to

take to verify their client’s identity may include:

• Will you take your own reasonable steps or seek to apply the Verification of

Identity Standard?

• Can the verification of identity be conducted face-to-face? If yes, by whom? If

not, what other means can be used to verify the client’s identity?

• What forms of identification are available? For instance what forms of

identification were used to obtain accommodation in the nursing home?

• If you wish to apply the Verification of Identity Standard and the client has limited

identification documents, is there someone who could provide an Identifier


Declaration, such as a doctor, nurse, police officer, social worker or minister of

religion?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the

circumstances of the individual case. Ultimately, this would be determined by a Court


Q9: An 18 year-old wishes to take a transfer of land he has just inherited. He has

no passport or driver’s licence. How should a Subscriber determine what may

constitute reasonable steps?




Identity Standard?


not, what other means can be used to verify the client’s identity?

• What forms of identification are available?

• As this is an 18 year old who would regularly be required to prove his age, is a

photo card available?

• Is there enough other evidence to apply the Verification of Identity Standard? Is

there a birth certificate and Medicare card that can be used?

• If there is not enough evidence available to apply the Verification of Identity

Standard, what other forms of identification are available?


identification documents is there someone who could provide an Identifier

Declaration, such as a teacher, lecturer, employer, doctor, nurse or police

officer?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the



Q10: A person who lives in a remote aboriginal community is buying land. How

should a Subscriber determine what may constitute reasonable steps?



• Is this an existing client?



Identity Standard?

• Can the verification of identity be undertaken face-to-face? If yes, by whom? If

not, how can it be undertaken?


• Is there enough other evidence to apply the Verification of Identity Standard?



Declaration, such as an employer, doctor, nurse, community leader, police

officer, bank manager, Centrelink officer or other government officer?

Whether reasonable steps were taken will be a question of fact depending on the



Q11: An elderly person discovers that his or her birth has never been registered and

does not have documentation regarding the birth. How should a Subscriber

determine what may constitute reasonable steps?

A11: In this situation one of the main considerations for the Subscriber is what identification

documentation is available given that there are limitations regarding documentation

that proves the client’s birth.

The Subscriber could consider if they are able to use Category 5(b) in the Verification

of Identity Standard, which was included for circumstances where limited identity

documentation exists. In doing so they would need to consider the following:

• Is this an existing client?


Identity Standard?


not, how can it be undertaken?


• Does the client have a Medicare card?

• What other documents are available to evidence the client’s current and former

living arrangements, ownership of assets and involvement in society using the

identity they claim?



Declaration, such as a doctor, nurse, police officer, bank manager, social worker

or minister of religion?


Whether reasonable steps were taken will be a question of fact depending on the



Q12: Is it always necessary to use a consular office in verifying the identity of a

person overseas?

A12: The responsibility for verifying the identity of the parties to a conveyancing transaction

rests with the practitioner representing them in the case of vendors and purchasers.

The practitioner is required to take reasonable steps in verifying the identity and what

is reasonable in each circumstance is for the practitioner to determine and to be able

to subsequently substantiate if required.

The procedure contained in the recently updated Verification of Identity Guidance

Note using Australian Consular Offices overseas is one service a practitioner may

decide is reasonable in the circumstances. It is not mandatory that the Australian

Consular Office service be used.

Q13: Does the use of video technology meet the requirements of the Verification of

Identity Standard?

A13: To comply with the Verification of Identity Standard the person undertaking the

verification (Identity Verifier) must conduct a face-to-face in-person interview with the

Person Being Identified. The face-to-face in-person interview requires the Identity

Verifier and the Person Being Identified to both be physically present at the interview.

The Identity Verifier must also sight originals of documents complying with one of the

Categories of identification Documents set out in paragraph 3 of the Verification of

Identity Standard (see Model Participation Rules, Schedule 8). Use of video

technology, such as Skype or FaceTime, would not constitute a ‘face-to-face in-

person interview’, nor does it allow identification of original documents, as required by

the Verification of Identity Standard.

The Verification of Identity Standard sets out procedures for how verification of identity

may be performed. If the Standard is properly carried out by one of the prescribed

categories of people then it will be deemed reasonable steps.

Use of the Standard is not compulsory and may not be practical in some

circumstances. Accordingly, it is also possible for a Subscriber to verify the identity of

a person in some other way that constitutes the taking of reasonable steps. What

constitutes reasonable steps is dependent on the circumstances of each individual

case. Where the Standard is not used and there is a dispute, the Subscriber will be


required to establish that the method used to verify the identity of a person constituted

“taking reasonable steps” in the particular circumstances.

Accordingly, where the Standard is not being used a Subscriber may consider that

use of video technology, such as Skype or FaceTime, is useful in the particular

circumstances. However, its use should be considered by the Subscriber who will

have to justify that, in the circumstances of that particular Verification of Identity, use

of video technology and any other measures used, constituted the taking of

reasonable steps. ARNECC notes that video technology may be manipulated or

forged, therefore caution is recommended. The use of this technology is at the

discretion and risk of the Subscriber.

Whether or not the Standard is used to verify a person’s identity, further enquiries

should be made where doubt arises, or should reasonably have arisen, in relation to

a transaction and a person’s identity.

Q14: What is substantial compliance with the Identity Agent Certification?

A14: Superficial formatting changes are permitted but the wording cannot be amended.

Q15: Can I rely on an Identity Agent Certification provided to another Subscriber?

A15: The obligation to undertake verification of identity rests with the Subscriber. They may

use an Identity Agent or other agent to undertake a verification on their behalf. A

Subscriber would not normally be able to rely on another Subscriber’s Identity Agent

Certification. It may be possible to do so if there is an agency arrangement between

the two Subscribers.

Q16: How do I verify the identity of a person entitled to receive a certificate of title if

I am sending it to them?

A16: A Subscriber (or the mortgagee it represents) must take reasonable steps to verify the

identity of the person to whom they are sending the certificate of title to ensure they

are the person entitled to receive it.

Q17: As a Solicitor/Legal Practitioner, is it acceptable for me to Verify the Identity of

a person who is a member of my family? I have no personal interest in the

property and am not on title.

A17: In your capacity as a Solicitor/Legal Practitioner you are permitted to verify the identity

of a person who is a member of your family providing you have taken reasonable

steps to verify the identity of that person and can give a certification in the registry

instrument for the conveyancing transaction that reasonable steps have been taken

to verify identity.


Q18: Is a Subscriber required to verify the identity of a practitioner requesting the

handover of a paper Certificate of Title being held on behalf of a former client?

A18: Subscribers must take reasonable steps to verify the identity of any person to whom

they provide a paper Certificate of Title (duplicate). If the request for the Certificate is

from the Subscriber’s client, such as the registered proprietor, the Subscriber is

required to take reasonable steps to verify the identity of that client. If, on the other

hand, the request is from a person other than a former client, the Subscriber is

required to take reasonable steps to verify both the identity of that person and their

right to be requesting the Certificate.

These requirements are not necessary, however, when the Certificate of Title has

been declared void.

Q19: We are a subscriber to PEXA and must verify the identity of our client in regional

China. We note that to verify the identity of our client our options include

engaging an agent at an:

• Australian Embassy or Consulate; or

• International law firm or bank.

Please advise if it is acceptable to engage a representative from the Public

Notary Office of the Republic of China to carry out the verification as our agent?

A19: The Model Participation Rules (MPRs) state that a Subscriber is required to take

‘reasonable steps’ to verify the identity of its client. This could be by using the

Verification of Identity Standard or some other way that constitutes taking reasonable

steps.

If using the Verification of Identity Standard, a Subscriber can use an Identity Agent

to undertake verification of identity on its behalf. An Identity Agent is defined in the

MPRs and the requirements relating to Identity Agents are set out in Participation

Rule 6.5.5. For example, a Subscriber that engages an Identity Agent must direct the

Identity Agent to use the Verification of Identity Standard.

It is also possible for you to use another type of agent but that will not be deemed to

constitute reasonable steps under Participation Rule 6.5.6.

You need to decide what steps to take to verify the person’s identity having regard to

the available services and options under the circumstances.

Q20: What is meant by 'compliance with relevant legislation' in the certification of

correctness?


A20: The certification relates to the correctness of the matters that a prudent conveyancing

practitioner should be undertaking today. As every conveyancing matter is different,

practitioners must exercise their professional judgement depending on the

circumstances of each individual case.

The subject of the certification is whether the registry instrument complies, not

whether the relevant transacting party has complied with any particular piece of

legislation that may apply to that party’s operations or responsibilities. This does not

mean having a responsibility to investigate all matters of the law generally but if there

is awareness of non-compliance with a relevant aspect of the law and the certification

is made and the instrument lodged, the certification is likely to be non-compliant.

__________


Appendix

Australian Embassy/High Commission/Consulate Overseas Verification of Identity and Witnessing Process

1 A client or mortgagor located overseas contacts a Subscriber or mortgagee concerning a conveyancing transaction relating to Australian land.

2 The Subscriber or mortgagee takes initial instructions from the client or mortgagor and

conducts preliminary enquiries – full name and contact details for the client or mortgagor, land description, transaction details (sale, purchase, mortgage etc).

3 The Subscriber or mortgagee reviews with the client or mortgagor what identification

documents they have available to them and determines the highest document category in the Verification of Identity Standard they can satisfy.

4 The Subscriber or mortgagee advises the client or mortgagor that they will need to have

their identity verified and signature witnessed by an employee at an Australian Embassy, High Commission or Consulate (Australian Consular Office). The Subscriber or mortgagee advises the client or mortgagor to find out where the nearest Australian Consular Office is located, to make preliminary contact with the Australian Consular Office to make an appointment (where necessary) and to notify the Subscriber or mortgagee of the Australian Consular Office location.

5 The Subscriber or mortgagee takes reasonable steps to determine the client or

mortgagor’s right to deal as a particular party to the conveyancing transaction. 6 The Subscriber or mortgagee prepares a Client Authorisation or mortgage and the

approved Australian Embassy/High Commission/Consulate Identity/Witnessing Certification (Certification) and sends them to the client or mortgagor with written instructions advising of the process and what original and current identification documents are to be produced at the nominated Australian Consular Office (passport, driver’s license etc). The format of the Certification is at the end of this Appendix and the Certification Form is available from the ARNECC website.

7 The client or mortgagor attends the nominated Australian Consular Office with the

prepared Client Authorisation or mortgage and Certification, original identification documents and the Subscriber or mortgagee’s written instructions.

8 The Australian Consular Office satisfies itself that the photos on the identification

documents produced by the client or mortgagor are a reasonable likeness of the client or mortgagor. If this is not possible, the Australian Consular Office service is terminated.

9 When reasonable likeness is confirmed, the Australian Consular Office:

• prepares endorsed copies of all original identification documents produced by the client or mortgagor;

• asks the client or mortgagor to sign the Client Authorisation or mortgage and the Australian Consular Office witnesses the client or mortgagor’s signature on the Client Authorisation or mortgage; and

• completes, signs, dates and endorses the Certification for the client or mortgagor. 10 The Australian Consular Office hands to the client or mortgagor the:

• original identification documents; • signed Client Authorisation or mortgage,


• signed, dated and endorsed copies of the original identification documents produced; and

• signed, dated and endorsed Certification. 11 The client or mortgagor delivers the signed Client Authorisation or mortgage, endorsed

copies of the original identification documents produced and the Certification to the Subscriber or mortgagee. (The means of delivery are to be arranged between the client or mortgagor and the Subscriber or mortgagee.)

12 If the Subscriber or mortgagee has any reason to doubt the authenticity of any of the

documents received from the client or mortgagor, copies of the Australian Consular Office endorsements and Certification can be referred to the Department of Foreign Affairs and Trade (DFAT) by email for confirmation that the signatures and stamps appearing on the documents are that of a DFAT officer. For example, if the documents don’t bear a stamp of the Australian Consular Office, the name of the Australian Consular Office officer is not clear or there are other circumstances surrounding the transaction that cause doubt, such as signatures of clients not matching.

The following process applies for these referrals:

• The Subscriber or mortgagee emails the Australian Consular Office officer who

made the endorsements and certification using the standard email format <firstname>.<lastname>@dfat.gov.au (or in the same format with @austrade.gov.au for those consulates run by Austrade) supplying details of the service provided to the client or mortgagor and requesting confirmation that the Australian Consular Office provided the service. The request is to include copies of the endorsed document copies and the Certification supplied by the client or mortgagor. The reason for the referral is to be included in the request to allow DFAT to determine whether any aspect of the Australian Consular Office’s service gave rise to the referral.

• The Australian Consular Office will, if work demands allow, reply to the request

providing confirmation of the service provided. Alternatively, the Subscriber or mortgagee will receive an automatic read receipt email confirming that the Australian Consular Office officer exists as an employee of DFAT.

• If the Subscriber or mortgagee receives no response or cannot for any reason

determine the name of the Australian Consular Office officer who made the endorsements or certification (for example, when the Australian Consular Office stamp obscures part of the Australian Consular Office officer’s name), the Subscriber or mortgagee should email DFAT’s Consular Policy Unit at [email protected] requesting confirmation of the service provided by an Australian Consular Office and, when no response has been received from a request made directly to the Australian Consular Office, attaching a copy of that request.

In responding to confirmation requests DFAT is confirming that the Australian Consular Office officer’s signature and the Australian Consular Office stamp on a document are from an authorised officer.

13 The process for paper transactions is the same by substituting paper instrument for Client

Authorisation and by substituting Australian Legal Practitioner, Law Practice or Licensed Conveyancer for Subscriber.

mailto:%3cfirstname%3e.%3clastname%[email protected]

mailto:[email protected]


Australian Embassy/High Commission/Consulate Identity/Witnessing Certification “I, ____________________________________________________[full name of authorised employee

/consular or diplomatic officer] of _______________________________________________________[Australian Embassy/High

Commission/Consulate] being an authorised employee/consular or diplomatic officer within the meaning of the Section 3 of the Consular Fees Act 1955 hereby certify that: (a) the identification/witnessing relates to

_______________________________________________________________________ [full name of the person being identified] (‘the person being identified’); and

(b) the verification of identity/witnessing was carried out on___________________[date]; and (c) the original current identification documents as listed below were produced to me and

copies of these documents signed, dated and endorsed by me as true copies were provided to the person being identified; and

(d) the verification of identity/witnessing was conducted in accordance with the Department of Foreign Affairs and Trade policy for verification of identity, witnessing signatures on documents and making of endorsed copies and in response to the written instructions provided by the person being identified’s Australian Legal Practitioner, Law Practice, Licensed Conveyancer or mortgagee; and

(e) the person being identified was physically present for the verification of identity and the witnessing of the document(s) listed at paragraph (g); and

(f) I am not a party to the transaction; and (g) I witnessed the person being identified execute the following document(s)

_______________________________________________________________________ (eg, Client Authorisation, transfer of land, mortgage of land etc); and

(h) this signed, dated and endorsed certification; the signed, dated and endorsed copy

identity documents (listed below); and the witnessed document(s) listed in paragraph (g); were returned to the person being identified.

…………………………………………………………………………. Signature of authorised employee/consular or diplomatic officer | Post Stamp List of identification documents produced (see (c) above):

Description of identity documents produced and endorsed

1 ARNECC MPR Version 4 Guidance Note #3: Certifications – Updated May 2017


CERTIFICATIONS

1 INTRODUCTION


• what certifications are;

• why certifications are required;

• when certifications are required; and

• how certifications are given.





2 WHAT ARE CERTIFICATIONS?

Certifications are statements made by a Certifier that they have undertaken a specific

action. A Certifier is the Subscriber providing the certifications. The term Subscriber is

therefore used throughout this Guidance Note. A Subscriber must provide the required

Certifications when signing an electronic registry instruments or other electronic document.

Subscribers provide the Certifications required for the role they are undertaking. The

Certifications are system driven based on Land Registry business rules.

A Subscriber must give the certifications in their own right, regardless of whether they are

acting for themselves or a client. This includes situations where the Subscriber is a

conveyancer or lawyer who signs on behalf of a client.

Certifications for electronic transactions are set out in Schedule 3 of the Participation Rules.

The Certifications are:

# Subject Certification

1 Identity The Certifier has taken reasonable steps to verify the identity of the [transferor/transferee/ mortgagee/ mortgagor/ caveator/ applicant].

3


# Subject Certification

2 Authority The Certifier holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.

3 Evidence The Certifier has retained the evidence supporting this Registry Instrument or Document.

4 Correctness The Certifier has taken reasonable steps to ensure that this Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.

5 Mortgagee The Certifier, or the Certifier is reasonably satisfied that the mortgagee it represents,:

(a) has taken reasonable steps to verify the identity of the mortgagor; and

(b) holds a mortgage granted by the mortgagor on the same terms as this Registry Instrument or Document.

6 Certificate of Title

(used in Victoria and Western Australia only)

The Certifier has:

(a) retrieved; and

(b) either securely destroyed or made invalid

the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry Instrument or Document.

3 WHY ARE CERTIFICATIONS REQUIRED?

Certifications on a registry instrument or document give other parties to a transaction greater

certainty that the rules defined in the Participation Rules have been complied with.

The certifications also provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any Prescribed

Requirements.

4 WHEN ARE CERTIFICATIONS REQUIRED?

Certifications are required any time a registry instrument or document is digitally signed.

The certifications required to be provided will vary depending on the Subscriber role and

registry instrument or document type. Refer to table below detailing the application of the

certifications in the most common transactions.

For example:

• A Subscriber acting on their own behalf, other than a mortgagee, will be required to

provide only the Evidence and Correctness certifications for registry instruments.

• An incoming mortgagee representing itself will be required to provide the Evidence,

Correctness and Mortgagee certifications.


• A Subscriber representing a transferor will be required to provide the Identity,

Authority, Evidence and Correctness certifications.

• A Subscriber lodging a Priority Notice or Settlement Notice will be required to provide

the Evidence and Correctness certifications.

The Certificate of Title certification is only required for transactions involving land situated

in Victoria and Western Australia. In Victoria the Certificate of Title certification is required

for an administrative notice that converts a paper Certificate of Title to an electronic

Certificate of Title. In Western Australia the Certificate of Title certification is required when

a paper Certificate of Title exists, and is to be provided by the Subscriber who controls or to

whom control of that Certificate of Title is given.

Certifications are also required in some jurisdictions for documents, including Notices of

Sale, Notices of Acquisition, Consents and Lodgment Instructions.

The certifications required in the most common transactions are:

Document Type Party Giving Certifications Certifications Required

Discharge of Mortgage Mortgagee - self-represented 3 and 4 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3 and 4 (and 6 for WA)

Mortgage Mortgagee - self-represented 3, 4 and 5 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3, 4 and 5 (and 6 for WA)

Transfer Transferee – self-represented 3 and 4

Subscriber representing transferee

1, 2, 3 and 4

Transferor – self-represented 3 and 4 (and 6 for WA)

Subscriber representing transferor

1, 2, 3 and 4 (and 6 for WA)

Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator

1, 3 and 4

Withdrawal of Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator

1, 2, 3 and 4

Priority Notice/Settlement Notice and Extension of Priority Notice

Applicant – self-represented 3 and 4

Subscriber representing applicant

3 and 4

Withdrawal of Priority Notice


Subscriber representing applicant

3 and 4

Withdrawal of Settlement Notice


Representative representing applicant

1, 2, 3 and 4


Document Type Party Giving Certifications Certifications Required

Administrative Notice to convert and nominate a Certificate of Title

(Victoria Only)

Subscriber 6

5 HOW ARE CERTIFICATIONS GIVEN?

Certifications will be set out in the registry instrument or document when it is presented to

the Subscriber to be signed.

When giving a certification a Subscriber must ensure that it can demonstrate compliance

with the certification.

The compliance requirements for each certification are described below.

5.1 Identity

Compliance with the identity certification can be demonstrated by proving that reasonable

steps were taken to identify the person concerned.

If the Verification of Identity Standard was used, evidence demonstrating the application of

the Verification of Identity Standard is required, such as copies of the identification

documents provided by the Person Being Identified.

Where an alternative method of identification was used by the Subscriber, evidence which

demonstrates the reasonable steps taken is required to be kept. For example, a mortgagee

Subscriber may decide that the transaction records it has for long-standing customers who

are well-known to it are sufficient to constitute taking reasonable steps.

A Subscriber may use an Identity Agent or other agent to undertake verification of identity

on their behalf. Evidence of who undertook the verification of identity, and on what basis,

will be required.

Refer to MPR Guidance Note #2: Verification of Identity.

5.2 Authority

Where the Authority certification is required, compliance can be proven by producing the

completed Client Authorisation.

Refer to MPR Guidance Note #1: Client Authorisation.

5.3 Evidence

Where the Evidence certification is required, any evidence supporting the conveyancing

transaction must be retained for at least 7 years from the date of lodgment.


This includes Verification of Identity and Client Authorisation evidence as outlined in the

preceding paragraphs, as well as any other supporting evidence for the registry instrument

(for example any form required by the Duty Authority, statutory declarations, trust deeds,

agency arrangements, evidence of death etc.).

It should include any supporting material evidencing that the client or mortgagor has the

right to enter the conveyancing transaction specified in the Client Authorisation or mortgage.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is required for

a paper instrument, with the addition of the Client Authorisation and Verification of Identity

evidence (if not currently kept).

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.

Refer to MPR Guidance Note #4 – Right to Deal and MPR Guidance Note #5 – Retention

of Evidence.

5.4 Correctness

No specific evidence is required to prove compliance with this certification. However, if it

becomes clear that prudent conveyancing practices to ensure correctness of the signed

registry instrument or document were not followed, it is likely that compliance with this

certification will not be demonstrated.

5.5 Mortgagee

Where the Mortgagee certification is required, compliance can be proven by producing a

valid mortgage granted by the mortgagor on the same terms as the mortgage lodged with

the Land Registry, together with evidence of verification of identity of the mortgagor.

5.6 Certificate of Title

No specific evidence is required to prove compliance with this certification. However, where

a certification was provided that a (duplicate) Certificate of Title was invalidated or destroyed

and a valid version of the (duplicate) Certificate of Title appears at a later date, it will be

assumed that this certification was incorrectly given.



Q1: What happens if I can’t give a particular certification?

A1: The certifications provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any


The certifications relate to requirements for that particular conveyancing transaction

to proceed. Where one or more certifications cannot be provided then the transaction

should not go ahead, unless and until the Subscriber is satisfied that they can make

the certifications in good faith.

Q2: The Evidence certification appears very broad. Do I need to seek out supporting

evidence that I have not requested as part of the conveyancing transaction?

A2: No. The evidence required for the Evidence certification is evidence which should be

obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. You are not required to seek additional supporting

evidence.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is required

for a paper instrument, with the addition of the Client Authorisation and Verification of

Identity evidence (if not currently kept).

Q3: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A3: Evidence should be kept which supports the requirements and the validity of the

conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the identity of the transacting party, they should

be kept.

Q4: What would happen if I inadvertently gave a false certification?

A4: The Subscriber is responsible for ensuring all the things being certified are correct. If

the transaction is completed, the consequences of a certification having been given

incorrectly would depend on the outcome of the transaction for each party and the

application of legislation and other laws relevant to the circumstances.

Q5: When is the Certificate of Title certification required?


A5: The Certificate of Title certification is only required for transactions involving land

situated in Victoria and Western Australia.

In Victoria the Certificate of Title certification is required for an administrative notice

that converts a paper Certificate of Title to an electronic Certificate of Title. In Western

Australia the Certificate of Title certification is required when a paper Certificate of

Title exists, and is to be provided by the Subscriber who controls or to whom control

of that Certificate of Title is given.

The certification is not inconsistent with the prescribed requirements for Control of

Right to Deal holders in New South Wales.

Q6: What is meant by 'compliance with relevant legislation' in the certification of

correctness?

A6: The certification relates to the correctness of the matters that a prudent conveyancing

practitioner should be undertaking today. As every conveyancing matter is different,

practitioners must exercise their professional judgement depending on the

circumstances of each individual case.

The subject of the certification is whether the registry instrument complies, not

whether the relevant transacting party has complied with any particular piece of

legislation that may apply to that party’s operations or responsibilities. This does not

mean having a responsibility to investigate all matters of the law generally but if there

is awareness of non-compliance with a relevant aspect of the law and the certification

is made and the instrument lodged, the certification is likely to be non-compliant.

__________

1 ARNECC MPR Version 4 Guidance Note #4: Right to Deal – Updated May 2017


RIGHT TO DEAL

1 INTRODUCTION


• what right to deal is;

• why verification of right to deal is required;

• when right to deal must be verified; and

• how you verify right to deal.

This guide does not constitute legal advice nor does it replace prudent

conveyancing practice. Nothing written in this guide overrides the Electronic

Conveyancing National Law, Participation Rules, any other relevant legislation or

Registrar’s Prescribed Requirements.

2 WHAT IS RIGHT TO DEAL?

Right to deal is the entitlement of a person to be a particular party to a conveyancing

transaction.

The Participation Rules for electronic conveyancing require a Subscriber to take

reasonable steps to verify the right to deal of their client, and/or the mortgagor for a

mortgage.

3 WHY IS VERIFICATION OF RIGHT TO DEAL REQUIRED?

A Representative must verify the right to deal of their client. A mortgagee, or a

Representative of a mortgagee, must verify the right to deal of a mortgagor. Verifying right

to deal is considered to be part of the due diligence required of conveyancing

professionals. It is required to ensure that the person who is your client or the intended

mortgagor has the right to deal with the subject property.

4


Verifying right to deal mitigates the risk of a fraudulent transaction and gives the other

parties to an electronic transaction confidence they are transacting with the person who

has the right to transact.

4 WHEN MUST RIGHT TO DEAL BE VERIFIED?

Right to deal must be verified whenever you are representing a client in a conveyancing

transaction, or if you are a mortgagee taking a mortgage (or a Subscriber whose client is a

mortgagee).

Verification of right to deal is closely linked to verification of identity. Prudent

conveyancing practice would be to conduct these processes simultaneously. Refer to

MPR Guidance Note #2: Verification of Identity.

5 HOW DO YOU VERIFY RIGHT TO DEAL?

A Subscriber is required to take reasonable steps to verify the right to deal. Where a

Subscriber is an organisation, any person duly authorised by the Subscriber can

undertake the verification of right to deal.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether ‘reasonable steps’ were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court


Verifying right to deal will require you to sight supporting evidence that includes the name

of the person whose right to deal is being verified and the property or transaction details.

The supporting evidence should allow you to link the registered interest holder or

transacting party to the land.

More extensive checks and enquiries should be made where doubt arises, or should

reasonably have arisen, in relation to a transaction and a person’s right to deal.

The following examples may help establish right to deal for parties involved in common

transactions. This list is not exhaustive and what constitutes reasonable steps to

verify right to deal will depend on the circumstances.

Reliance on any one document is not conclusive evidence and how much evidence is

required is dependent on the circumstances. For example, reliance on a duplicate


certificate of title may only show that person has access to that title, not that they are the

person who has the right to deal with the land. Such evidence would need to be coupled

with verification of identity and sufficient supporting evidence to satisfy yourself of their

right to deal.

5.2 Outgoing Party and Mortgagor

For a party that is relinquishing their interest, such as a transferor, or a mortgagor

supporting documentation that may assist in establishing right to deal could include

originals, copies or records of the following:

• a current local government rates notice

• current utility bills for the property

• a current land tax assessment notice for the property

• loan documentation

• the mortgage granted by the mortgagor (if one exists)

• the certificate of title/duplicate certificate of title for the property (if one exists) and/or

a recently issued registration confirmation statement for the property.

A title search should be obtained to check who is named as a registered interest holder to

ensure the correct person’s right to deal is being verified.

5.3 Incoming Party

For a party that is coming onto title, such as a transferee or a mortgagee, supporting

documentation that may assist in establishing right to deal could include the following:

• the contract of sale for the property

• loan documentation.

In Queensland to verify right to deal for a caveator you should take reasonable steps to

determine that your client is a person who meets the eligibility requirements for lodging a

caveat under the Land Title Act 1994.

In all other jurisdictions to verify right to deal for a caveator you should take reasonable

steps to determine that your client has a caveatable interest and that you believe the

claims made by the caveator are true in substance and in fact.


5.4 Caveator (withdrawal of caveat)

If you are the Subscriber that represented the caveator named in the caveat, you should

take reasonable steps to ensure that the caveator is the same person you initially

represented.

If you are a different Subscriber to the one that represented the caveator named in the

caveat, production by the caveator of supporting documentation for the caveat could

assist in establishing the caveator’s right to deal.

5.5 Supporting Evidence

You must retain supporting evidence that shows the steps you took to reasonably verify

your client’s or the mortgagor’s right to deal.

This may include copies dated and endorsed as true copies of the supporting

documentation used to verify right to deal and notes on the process undertaken including

any further steps taken.

There are no restrictions on the ways in which you can demonstrate that you took

reasonable steps.

5.6 Further considerations

There are many instances where further consideration is required of what steps need to

be taken to establish a person’s right to deal.

For example, consideration should be given to the following:

• Does the transacting party’s name differ on the supporting documentation? If so,

have they changed their name and can they provide documentation to show this?

• Is the transacting party subject to a trust? If yes, is the conveyancing transaction

permitted under the trust? Who are the current trustees?

• Is there an insolvency event involving one of the transacting parties? If there is an

insolvency event, is the conveyancing transaction permitted under the relevant

legislation?

• Is the transacting party a statutory person? What is the correct name of the

statutory person? Is the conveyancing transaction permitted under the relevant

legislation? Are delegations permitted under the relevant legislation? Are the

delegations relevant to the conveyancing transaction correct?

• Is the transacting party a successor at law to the registered owner? On what basis

is it a successor at law - statutory vesting, transfer of business or another basis?


• Is the transacting party an executor? Is the conveyancing transaction contemplated

by the will?

• Is the transacting party a represented person, eg under the jurisdiction’s

guardianship and administration legislation? Is the conveyancing transaction

permitted by the relevant orders and under the relevant legislation?

• Is a person acting under a power of attorney? If there is a power of attorney, is the

conveyancing transaction permitted under the power? Is the power still current or

has it been revoked? Has the correct person been identified as attorney? Are the

attorneys required to act jointly or severally?

• Is the transacting party an incorporated association? If the party is an incorporated

association, is the conveyancing transaction permitted under the relevant rules or

constitution and legislation? Does the conveyancing transaction purport to give

effect to a Court order? Is the conveyancing transaction contemplated by the order?

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s right to deal. For example where you

know or ought to know:

• that the documents being produced for verification of right to deal are not genuine;

or

• that the age of the person whose right to deal is being verified does not align with

the likely age of the person who has the right to deal (for example the purported

transferor is too young to have purchased the property at the time it was purchased);

or

• of any other circumstance that raises suspicion or should be investigated further.

Other circumstances could include where your client is more than one person and only

one person provides instructions. For example, where your client consists of a couple as

joint tenants. You must verify the right to deal of all of the persons constituting your client.

You should contact all persons comprising your client to confirm their instructions.

Similarly, where your client is an incorporated entity you should ensure you are dealing

with the representatives of the incorporated entity that are duly authorised to provide

instructions.

Some circumstances may not be directly linked to right to deal but may raise awareness

that greater care should be taken in relation to a particular transaction. For example the

transaction is urgent, you doubt the veracity of the instructions, it involves a non-standard

mortgage of an unencumbered title or your client has limited English. Whilst such


transactions may be legitimate, it may be necessary to verify the circumstances

surrounding the transaction, for example, by checking the reason for urgency or engaging

an independent interpreter.


Q1: How do I know that my client John Smith is the same John Smith that is the

proprietor on title who has the right to deal?

A1: What is reasonable depends on the circumstances. You need to take steps to

satisfy yourself which may include simultaneous verification of identity and

verification of right to deal by obtaining supporting evidence to link John Smith to the

property, such as one or more of the documents referred to under Relinquishing Party above. You should also make further enquiries where doubt arises or should

arise in relation to the instructions and transaction. For example, the purported

transferor is too young to have purchased the property at the time it was purchased

and therefore suspicion should arise that they may be John Smith junior.

Q2: What should I do if I doubt my client has the mental capacity to enter into the

transaction?

A2: You should make further enquiries if you doubt that your client has the mental

capacity to enter into the transaction. Such enquiries could include obtaining a

medical certificate to verify that they have the mental capacity to enter into the

transaction.

Q3: I am a Subscriber representing an incoming mortgagee, what are my

obligations in relation to right to deal?

A3: You must verify the right to deal of your client, in this instance the mortgagee. This

could be done by obtaining loan documentation and any other supporting

documentation that shows they are the intended incoming mortgagee for that

property.

In addition to this you must take reasonable steps to verify that the mortgagor has

the right to enter into the mortgage. This could be done by obtaining the contract of

sale and other related documentation if they are the incoming proprietor. If they are

the current proprietor documentation tying that proprietor to the subject property is

required. For example a current local government rates notice, current utility bills for

the property, a current land tax assessment notice for the property, previous loan

documentation and/or a certificate of title or registration confirmation statement for

the property.

1 ARNECC MPR Version 4 Guidance Note #5: Retention of Evidence – Updated May 2017


RETENTION OF EVIDENCE

1 INTRODUCTION


• what evidence retention is;

• why evidence is required to be retained;

• when evidence must be retained; and

• how evidence is to be retained.

This guide does not constitute legal advice nor does it replace prudent

conveyancing practice. Nothing written in this guide overrides the Electronic

Conveyancing National Law, Participation Rules, any other relevant legislation or

Registrar’s Prescribed Requirements.

2 WHAT IS EVIDENCE RETENTION?

Under the Participation Rules evidence supporting a conveyancing transaction must be

kept for at least 7 years from the date of lodgment. The evidence must be legible, stored

safely and securely, and accessible.

A Subscriber is required to retain evidence supporting:

• Client Authorisation;

• Verification of Identity;

• Right to Deal;

• Other Prescribed Requirements; and

to retain any evidence required by the Duty Authority.

5


3 WHY IS EVIDENCE REQUIRED TO BE RETAINED?

Evidence is required to be retained in order to demonstrate that the transaction was

completed in accordance with legislative and other requirements and the certifications

required were accurately made. Refer to MPR Guidance Note #3: Certifications.

Evidence may be required to be provided to the Registrar for the purpose of monitoring

compliance with legislative and other requirements. Under the Electronic Conveyancing

National Law, the Registrar may conduct a compliance examination either as a result of

receiving a request or complaint from any person or on the Registrar’s own initiative. The

Registrar may conduct a compliance examination for the purpose of ascertaining whether

or not the Participation Rules have been complied with or investigating any suspected or

alleged case of misconduct.

If there is a dispute that arises in relation to a conveyancing transaction a Subscriber may

need to demonstrate in Court proceedings that the transaction was completed in

accordance with legislative and other requirements. For example, evidence that

reasonable steps were undertaken to verify the identity of a client and their right to deal

may be required. Refer to MPR Guidance Note #2: Verification of Identity and MPR

Guidance Note #4: Right to Deal.

4 WHEN MUST EVIDENCE BE RETAINED?

Evidence must be retained whenever a conveyancing transaction is undertaken. It must

be retained for at least 7 years from the date of lodgment of the registry instrument or

document.

Evidence supporting the registry instrument is that which is required to demonstrate the

validity of the conveyancing transaction. This will be what is required for a paper

instrument, with the addition of the Client Authorisation and verification of identity

evidence (if not currently kept). The evidence required is evidence which should be

obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. A Subscriber is not required to seek additional

supporting evidence.

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.


The following evidence must be retained:

4.1 Client Authorisation

The Client Authorisation and any evidence supporting that Client Authorisation must be

retained. Refer to MPR Guidance Note #1: Client Authorisation.

Where there is a Client Authorisation and it is for a batch of conveyancing transactions the

Client Authorisation is required to be kept for at least 7 years from the last conveyancing

transaction lodged with the Land Registry. Similarly for a standing Client Authorisation it

will need to be kept for at least 7 years from the last conveyancing transaction lodged with

the Land Registry before the standing authority was revoked or expired.

4.2 Verification of Identity

Any evidence supporting that reasonable steps were taken to verify the identity of the

client, mortgagor, person to whom a certificate of title was provided, signer or Subscriber

administrator (as applicable) must be retained. If the Verification of Identity Standard was

used this evidence must demonstrate that the procedure for the Verification of Identity

Standard was followed. If alternative reasonable steps were used to verify identity the

evidence must show what these steps were. Refer to MPR Guidance Note #2:

Verification of Identity.

4.3 Right to Deal

Any evidence supporting a party’s right to enter into the conveyancing transaction must be

retained. Refer to MPR Guidance Note #4: Right to Deal.

Evidence supporting a party’s right to enter into a conveyancing transaction may include

but is not limited to originals, copies or records of: a current local government rates notice,

current utility bills for the property, a current land tax assessment notice for the property,

loan documentation, the mortgage granted by the mortgagor (if one exists), the contract

of sale for the property, the certificate of title/duplicate certificate of title for the property (if

one exists) and/or a recently issued registration confirmation statement for the property .

4.4 Other Prescribed Requirement

Any evidence that demonstrates compliance with relevant legislation and other prescribed

requirements must be retained. Prescribed requirements detail policies, procedures and

requirements of the Registrar in the respective jurisdiction. Examples of prescribed

requirements include but are not limited to notices to Land Registry customers, practice

manuals and practice directions. What type of evidence is required to be retained is

dependent on the type of transaction but may include statutory declarations, trust deeds,

agency agreements or evidence of death.


5 HOW IS EVIDENCE TO BE RETAINED?

Evidence could be electronic or paper evidence. It could be stored electronically and/or in

paper. It could be stored by the Subscriber and/or an agent on a Subscriber’s behalf.

However, the medium and means in which documents supporting the conveyancing

transaction are to be retained is to be determined by a Subscriber in light of the possible

need to produce the evidence to a Court and any privacy obligations they are required to

abide by. Evidence should be accessible, legible, and safely and securely stored

whichever medium is used.


Q1: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A1: Evidence should be kept which is sufficient to support the requirements and the

validity of the conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the right to deal of the transacting party, they

should be kept.

Q2: Can evidence be retained electronically?

A2: Yes. Evidence can be stored electronically. However, the medium and means in

which documents supporting the conveyancing transaction are to be retained is to

be determined by the Subscriber in light of the possible need to produce those

documents as evidence to a Court.

Q3: What would constitute “sufficient evidence” when the caveat is to protect

mortgagee’s interest? Would a copy of the loan agreement or mortgage

suffice, or would we need to retain a paper caveat on the same terms?

A3: There is no specific requirement to hold a paper Caveat on the same terms. Your

obligation is to ensure that you have evidence of authorisation to represent the client

and evidence to support the transaction that is being conducted. In the case of a

Caveat protecting a Mortgagees interest a Loan Agreement or Mortgage may be

deemed by a Registrar as being appropriate evidence of the transaction.

__________

1 ARNECC MPR Version 4 Guidance Note #6: Compliance Examinations – Updated May 2017


COMPLIANCE EXAMINATIONS

1. INTRODUCTION


• what a compliance examination is;

• why compliance examination is necessary;

• when a compliance examination will be conducted; and

• how a compliance examination will be conducted.




prescribed requirements.

2. WHAT IS A COMPLIANCE EXAMINATION?

Section 33 of the Electronic Conveyancing National Law provides the Registrar in each

jurisdiction with the power to undertake a compliance examination for the purpose of

ascertaining whether or not the Participation Rules have been complied with; or

investigating any suspected or alleged case of misconduct by a Subscriber (including a

former Subscriber).

Under section 34 of the Electronic Conveyancing National Law a Subscriber is obliged to

cooperate fully in a compliance examination and comply with any reasonable requirement

by the person conducting the compliance examination.

Schedule 5 of the Participation Rules sets out a procedure for the conduct of a compliance

examination. The procedure is outlined further in Section 5 below.

6


3. WHY IS A COMPLIANCE EXAMINATION NECESSARY?

A key objective of the Subscriber Compliance Program is to ensure the program assists

Subscribers in meeting their obligations and responsibilities under the Participation Rules

and to build trust and confidence in the electronic lodgment network.

4. WHEN WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Subscribers will be generally selected at random for compliance examination.

Priority will be given to conducting compliance examination on Subscribers:

• who are newly registered;

• who have never been subject to a compliance examination;

• whose last or previous compliance examination(s) demonstrated non-compliance with

the Participation Rules or misconduct with respect to the use of an electronic lodgment

network;

• who have been the subject of a notification to the Registrar.

Targeted compliance examinations will also be conducted where the Registrar identifies

any potential threat to the operation, security or integrity of the electronic lodgment network

or the titles register. For example:

• past instances of non-compliance with the Participation Rules; or

• the Registrar identifying a problem with a registry instrument or conveyancing

transaction during the examination of a registry instrument.

5. HOW WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Schedule 5 of the Participation Rules outlines the procedure for the conduct of a compliance

examination (the compliance examination procedure). The compliance examination

procedure is reflected in the information below.

5.1 Notice

A Subscriber will receive a notice including a Subscriber checklist (see Appendix) from the

Registrar.

The notice will:

• identify the registry instruments for which the compliance examination will be

conducted;

• request that the Subscriber provide documents and/or information that demonstrate

the Subscriber’s compliance with the Participation Rules including, the following:


client authorisation (refer to MPR Guidance Note # 1: Client Authorisation);

verification of identity (refer to MPR Guidance Note # 2: Verification of Identity);

verification of the right to deal (refer to MPR Guidance Note # 4: Right to Deal);

supporting evidence (refer to MPR Guidance Note # 5: Retention of evidence).

• state a time, no less than 10 business days after the giving of the notice, within which

the documents and/or information must be provided to the Registrar.

• outline how the documents and/or information must be provided to the Registrar.

Subscribers should be aware that if they fail, without reasonable excuse, to comply with the

notice the Registrar may suspend the Subscriber.

5.2 Examination by the Registrar

The Registrar will initially conduct a desktop examination of the documents and/or

information provided by the Subscriber for the registry instruments identified to determine

whether the Subscriber has complied with the relevant Participation Rules. The desktop

examination will, as a minimum, include the following:

• Client Authorisation form:

correct form and version used;

client details match the lodged registry instrument(s);

transaction details match the lodged registry instrument(s);

correctly signed by the client / client agent;

correctly signed by the Subscriber or its agent;

form completed including date;

form signed by the client/client agent at the time verification of identity is

conducted. If not:

- evidence of the steps taken to ensure form signed by the client/client agent provided;

- that evidence is satisfactory;

evidence of reasonable steps taken to verify the authority of each person

entering into a client authorisation on behalf of a client to both bind the client to

the client authorisation and to the conveyancing transaction(s) the subject of the

client authorisation;

form signed by the client/client agent before the Subscriber digitally signed the

registry instruments or other electronic documents.

• Verification of identity:

verification of identity has been undertaken for all applicable persons outlined

in Participation Rule 6.5.1;

evidence of the steps taken to verify identity provided;


evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of identity in relation to the signing of any client

authorisation form is satisfactory;

timing of verification of identity in relation to the signing of the registry

instrument(s) is satisfactory.

• Verification of the right to deal:

evidence of the steps taken to verify right to deal provided;

evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of right to deal in relation to the signing of any client

authorisation form is satisfactory;

timing of verification of right to deal in relation to the signing of the lodged

dealing(s) is satisfactory.

• Supporting evidence (other than supporting evidence required above):

any evidence required by the duty authority provided and satisfactory;

any evidence required by statute or prescribed requirements provided and

satisfactory;

copy of any mortgage granted by mortgagor provided;

mortgage granted by mortgagor on same terms as that of the lodged registry

instrument;

mortgage granted by mortgagor correctly signed and executed.

Subscribers should refer to the relevant Model Participation Rules Guidance Note for further

guidance regarding compliance with the Participation Rules for each of the above.

5.3 Outcome of Compliance Examination

The Subscriber will be notified of the outcome of the compliance examination in writing

within 10 business days of the completion of the compliance examination. The outcome

will be one of the following:

• notification that the compliance examination revealed compliance with the

Participation Rules and accordingly no further action is required; or

• notification that the compliance examination revealed non-compliance with the

Participation Rules and notification of the next steps, for example:

details of actions required to be taken to remedy the non-compliance with the



that a site visit is required and a proposed date and time, more than ten business

days after the date of the notification, for the site visit to occur.

If the compliance examination results in the Registrar knowing or having reasonable

grounds to suspect/believe that a Suspension Event or Termination Event has occurred,

the Suspension and Termination Procedure in Schedule 7 of the Participation Rules may

commence.

6. FREQUENTLY ASKED QUESTIONS

Q1: As a Subscriber who operates nationally, will each jurisdiction follow the same

approach in undertaking compliance examinations?

A1: The Australian Registrars’ National Electronic Conveyancing Council has developed

a Subscriber Compliance Program so that compliance examinations are co-ordinated

and conducted consistently across all operating jurisdictions in accordance with this

Guidance Note.

___________


Appendix

SUBSCRIBER COMPLIANCE EXAMINATION CHECKLIST

Registry Instrument / Document:

Client Authorisation

☐ Copy of Client Authorisation provided

☐ Evidence provided of the steps taken to ensure form signed by the Client/Client Agent

☐ Evidence provided of steps taken to verify the authority of each Person entering into a Client Authorisation on behalf of a Client to both bind the Client to the Client Authorisation and to the Conveyancing Transaction(s) the subject of the Client Authorisation

Verification of Identity

☐ Evidence provided of the steps taken to verify identity of the Client(s) and/or the mortgagor(s)

Verification of Right to Deal

☐ Evidence provided of the steps taken to verify right to deal of the Client(s) and/or the mortgagor(s)

Supporting evidence

Copies of all supporting evidence provided including:

☐ Any evidence required by the Duty Authority

☐ If applicable, copy of any mortgage granted by mortgagor

☐ Any evidence required by Prescribed Requirements

I certify that the documents and/or information provided in accordance with this checklist are to the Subscriber's knowledge, information and belief correct, complete and not false or misleading.

Name:

Subscriber Name:

Signature:

Date:

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